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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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CRIMINAL LAW (SENTENCING) (SENTENCING CONSIDERATIONS) AMENDMENT BILL

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development and Planning, Minister for Tourism, Minister for Food Marketing) (15:40): Obtained leave and introduced a bill for an act to amend the Criminal Law (Sentencing) Act 1988. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development and Planning, Minister for Tourism, Minister for Food Marketing) (15:41): I move:

That this bill be now read a second time.

This bill regulates and makes transparent sentencing discounts given to offenders who plead guilty or offer assistance to the authorities. The bill has two primary objectives. Firstly, it is intended to improve the operation and effectiveness of the criminal justice system by reducing delays and backlogs in cases coming to trial. It encourages offenders who are minded to plead guilty, to do so in a timely way.

Secondly, it is intended to encourage offenders to assist the authorities in the administration of justice; for example, if they provide valuable assistance in the context of serious and organised crime.

The bill identifies three pivotal stages in major indictable cases, which are the core around which provision for discount for guilty pleas can be made. The bill provides for a modified and simplified two-stage process for matters dealt with summarily, to reflect the different nature of the typical summary case and the operational considerations in the Magistrates Court.

The bill provides for a graduated series of discounts for pleas of 'guilty,' and/or cooperation with the authorities. The quantum of the discounts are dependent upon the timing of the guilty plea and the nature of the cooperation with authorities. The earlier the plea, the more significant the discount.

The bill restricts the conferral of discounts for late guilty pleas. Any perception that offenders will escape their 'just desserts' and appropriate punishment by pleading guilty, and/or cooperating with the authorities, is mistaken. The figures for discounts in the bill are not intended to be overly rigid or mechanically applied. They provide the upper limit at which a discount for a guilty plea and/or cooperation with the authorities can be set.

Although there may be a debate as to what should be the precise quantum of the upper limits, the figures in the bill are not overly generous. They are consistent with the existing and established judicial sentencing practices. What the bill achieves is the codification of the rule that the earlier the guilty plea, the greater the discount. It limits the freedom of the courts in providing discounts in sentencing.

The bill is a carefully thought out, comprehensive and balanced measure. The major effect of the bill is to make transparent, and regulate, what already happens in the state's criminal courts on a daily basis—in fact, the criminal courts of the entire nation.

I seek leave to have the remainder of the second reading explanation inserted into Hansard without reading it.

Leave granted.

Consultation

The Bill draws on recommendations made by His Honour Judge Rice of the District Court some years ago and later the Criminal Justice Ministerial Taskforce (CJMT). At the relevant time, the Criminal Justice Ministerial Taskforce was chaired by the then Solicitor-General (now Justice) Chris Kourakis QC and comprised the Commissioner for Victims' Rights and representatives from the Office of the Director of Public Prosecutions, the Office of the Commonwealth DPP (Adelaide), South Australian Police, the Law Society, the Bar Association, the Legal Services Commission, Aboriginal Legal Rights Movement, the Department of Treasury and Finance and the Attorney-General's Department. The Courts Administration Authority was represented in an observer capacity.

In its first report, the CJMT highlighted the need to reform and rationalise the recognition to be given to offenders for guilty pleas. Amongst its recommendations was the introduction of a graduated series of sentence discounts to offer incentives for accused persons to plead guilty at an early stage.

The Bill has been the subject of an exhaustive consultation process with many expert commentators. The draft Bill was placed on the Attorney-General's Department website and public comment was invited. The final version of the Bill has been the subject of further comment by the heads of the judiciary, and the Joint Courts Criminal Legislation Committee.

The original draft Bill was specifically sent for comment to a range of interested parties. Comment on the draft Bill was received from the Chief Justice, the Joint Courts Criminal Legislation Committee; the Chief Judge; the Chief Magistrate; the Senior Judge of the Industrial Court; the Senior Judge of the Environment, Resources and Development Court; the Senior Judge of the Youth Court, the Law Society, the State DPP, the Commonwealth DPP, the Legal Services Commission, the Victim Support Service, Prisoners Advocacy, the Commissioner for Victims' Rights, the Police Commissioner, the Bar Association and Volunteering SA. The Solicitor-General for South Australia, Mr Martin Hinton QC, a very experienced criminal lawyer, provided invaluable advice to the Government and officers of the Attorney-General's Department in finalising the Bill.

The result of the consultation process was inevitably mixed. Though there was near unanimous support for the Government's objectives to encourage early guilty pleas and to improve the effectiveness of the criminal justice process, there was an inevitable difference of emphasis in how this should be attained. On the one hand some parties considered that the figures for the discounts in the Bill are too generous while on the other hand some respondents considered that the figures are too low and that the Bill is too restrictive of judicial discretion, especially in relation to guilty pleas entered just before trial.

Certain issues regarding the practical operation of the Bill and its wording were raised, both in the initial and the follow up consultation processes. As far as possible without undermining the objectives of the Bill, these concerns (especially as raised by the judiciary) have been taken into account in the drafting of the final Bill.

The problem

The increasing backlogs and delays in cases coming up for trial in South Australian higher courts have been a major and longstanding concern. If allowed to continue, this trend will seriously erode public confidence in the criminal justice system and cause major problems in the administration of criminal justice. It is a well known and apt maxim that 'justice delayed is justice denied'. This applies equally to victims and witnesses as well as defendants.

The situation in the criminal trial list is not acceptable. In most years the number of new criminal cases received in higher courts has exceeded the number of cases finalised. The number of criminal cases still 'in the system' has therefore significantly increased. The 2009-10 Courts Administration Authority Annual Report confirmed that although the number of new cases received at the District Court had remained largely steady from the previous year, the number of criminal trials listed but not heard at both the Supreme Court and the District Court had actually increased despite more cases being dealt with and concluded during the year in the District Court. The increased number of cases finalised in the District Court is insufficient to reduce the current lengthy backlog of cases pending in that court.

Efficiency in the system is the responsibility of all those that participate in it. No one participant can solve the problem acting alone, It is for this reason that the Government will continue to look at a range of measures designed to contribute to the efficient administration of the criminal justice system without compromising justice.

The impact of the problem

Some of the many aspects of the undesirable consequences of long delays include:

Increased risk of offenders escaping justice through attrition of witnesses including deterioration of witnesses' recollection of key events over time.

Compounding of the well known adverse psychological effects on victims of crime with delays inherently extending the period of anxiety for victims awaiting participation in trials and the giving of evidence.

Increased legal aid and public prosecution costs as current protracted criminal procedure provides for many pre-trial hearings.

Increased prisoner time spent on remand by people who either will not get a sentence of imprisonment at all or who will be sentenced to imprisonment for a period equal to or less than that spent on remand—at a well-known cost to the correctional system.

Police and prosecution and defence (especially the Legal Services Commission) resources devoted to preparing and processing cases unnecessarily for trial, when those limited resources could be better devoted elsewhere.

Unproductive use of limited judicial time and resources, especially reserving courts for trials that ultimately turn out to be non-effective.

A guilty plea just before trial is especially undesirable as it magnifies many of the adverse effects of delay. The longer a case remains in the courts' list, the greater the delay it causes in other cases being reached. Consequently, getting cases out of the list should contribute to a reduction in delay.

What causes the problem

The number and timing of not guilty pleas has been clearly identified as a major, though not the sole, contributor to delays and inefficiencies in the criminal trial process. At common law there may be a reduction in sentence for an early plea of guilty. In R v Place (2002) 81 SASR 395 at 412-413 the Court of Criminal Appeal endorsed an earlier statement by Chief Justice King about the importance of a discount for a plea of guilty and the rationale for such a discount:

'This Court of Criminal Appeal has stressed the importance of the discount for a plea of guilty in the administration of justice. It is intended to encourage guilty persons to admit their guilt, instead of putting the State to the cost and trouble of a criminal trial and thereby contributing to the congestion of the criminal lists. This is an important public policy consideration, and judges are to be encouraged to foster an awareness amongst people charged with criminal offences, and those who advise them, of the advantage to be gained by a guilty person by acknowledging his guilt at the first reasonable opportunity.'

The present practice in relation to reducing sentences by reason of a guilty plea is unsatisfactory. An offender who pleads guilty to an offence before trial will attract a sentence discount varying in quantum but generally up to a third where the defendant pleads guilty at the first opportunity and up to 50 per cent where the defendant pleads guilty at the first opportunity and gives evidence for the Crown.

Over recent years it appears that the requirement the plea be early is sometimes overlooked. Reductions of 20 per cent and 25 per cent are not uncommon for pleas entered within a few weeks of trial and defendants even receive significant discounts for a guilty plea literally entered at the doors of court on the day of trial. There does not appear to be sufficient difference between the reductions for early guilty pleas and those much closer to trial. The trend of belated guilty pleas is undesirable and should be actively discouraged. Late guilty pleas represent a wasteful use of limited public and judicial resources and are unhelpful to all the parties in the criminal justice process, including defendants.

A guilty plea is far swifter to progress and finalise than a criminal trial. Clearly, any defendant is entitled to plead not guilty and to insist that the State prove his or her guilt beyond reasonable doubt. But what is a source of considerable and particular concern is the continuing substantial number of defendants who plead not guilty initially and are committed for trial, only to plead later in the proceedings, often literally at the doors of court on the day of trial.

The State DPP has noted that in 2008-09 late guilty pleas were the cause of 188 of the 686 fixed higher court trial dates that had to be vacated. This represented over a quarter of the higher court trials that did not proceed. In 2009-10 late guilty pleas were the cause of 308 of the 883 fixed higher court trial dates that had to be vacated. This amounts to well over a third of the higher court trials that did not proceed to trial. Over half of the defendants who are sentenced in the District Court, only plead guilty at the District Court and not in the Magistrates' Court at committal. This all represents a considerable waste of limited court, prosecution, police, forensic science, Legal Services Commission and prison resources. The situation places major pressures on the operation of the District Court and other agencies, and contributes to South Australia's high rate of prisoners on remand. It is common for trials to take well over a year from committal to be heard.

The problem of court delays is acute and complex. There is no simple answer. It is clear that additional resources, (even if available), would not, of itself, solve the problem. The Government has already increased the number of District Court Judges and provided additional courtrooms in an attempt to alleviate the problems. It is timely and appropriate to consider other avenues such as encouraging early guilty pleas through this Bill and other linked measures to improve court effectiveness.

The Bill in detail

The Bill has a number of major features and, where appropriate, provides for a different application in matters heard summarily compared to those dealt with in higher courts, to reflect the different procedures for those matters.

The Bill provides, in all cases, a discount of up to 40 per cent for pleading guilty within four weeks of the defendant's first scheduled appearance, whether in person or through a legal or other representative, in a court in relation to the case. The accused will be admitting his or her guilt at the earliest opportunity. This discount applies to all offences. It is expressly contemplated on the basis that the prosecution will not have effected full disclosure of its case. There will be some offenders who will be willing to plead guilty without sight or consideration of the prosecution's detailed evidence. More often than not a summary of the alleged offence, an 'apprehension report', will be the only information available. The accused will be admitting his or her guilt at the earliest opportunity and the police or other investigative agency will be spared the time consuming task of compiling a brief of evidence that would otherwise be required. This higher discount is expressly confined to this class of case and can only be varied in narrow circumstances, namely that a court was not available within the four week period to take the plea.

For matters not dealt with summarily, the committal is another suitable focal point under existing legislation and practice for the accused to be properly expected to offer a meaningful and informed decision as to plea. At present it is clear that far too many offenders plead not guilty at committal, only to plead guilty later in the proceedings. The encouragement and expectation should be for those defendants, who are likely to plead guilty in respect of major indictable offences, to do so, before or at committal and not at some later date.

The Bill provides for a discount of up to 30 per cent for a guilty plea after four weeks from the defendant's first scheduled appearance but before the committal for trial. This will typically be after the prosecution has completed the bulk of its investigation and supplied the bulk of its evidence to the defence and defence lawyers are in an informed position to advise their client as to the strength of the prosecution case and to the appropriate pleas.

The Bill provides for a discount of up to 20 per cent for a guilty plea in the period after committal and up to 12 weeks from the arraignment date set at committal. This discount is not absolute and a limited exception is provided in the Bill. This third stage of 12 weeks after the arraignment date accords with the view expressed in the consultation process. This third stage is designed to maximise effective court listing and to tackle the all too common present practice of belated guilty pleas. For those offenders who are still likely to ultimately plead guilty but who have not already done so within four weeks of charge or at committal, then the third focal point is designed as a final 'filter' to catch such defendants and encourage them to plead guilty before the considerable inevitable final effort involved in preparing for trial.

Under the Bill, there will ordinarily be no discount in the higher courts if the guilty plea is entered in the period after 12 weeks of the first arraignment date and up to, and including, the first trial date. A limited exception is provided in the Bill where a court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because the court did not sit during that period; the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or the court was, because of reasons outside of the control of the defendant, unable to hear the defendant's matter during that period. The Bill aims to deter late guilty pleas by precluding any discount after the third stage unless the exception is satisfied.

There may be assertions in favour of retaining a small discount after the cut off date and it may be said there is still some utilitarian value in a guilty plea, no matter how late. This point was raised during the consultation process. However, after careful consideration this argument was not accepted. There is a need for a strict approach in this area. The firm policy of the Bill is to discourage the all too common present practice of defendants pleading guilty just before the trial. It is considered that in order to tackle this culture that a point in time long before a listed trial date should be the cut off for a discount in the ordinary course of events. This will facilitate the aim of the Bill in achieving cost savings and efficiencies through early guilty pleas. The retention of even a minimal discretion for a late guilty plea up to the trial date would undermine the policy behind the Bill.

The timing of the stages for pleading guilty in the higher courts will be capable of variation by Regulation. This is if, as is quite possible, working and listing practices and pressures in the higher courts should change in due course. It is more efficient that the periods can be changed to reflect these practices and pressures by Regulation as opposed to having to return to Parliament to change the periods. There is a need for the law to be responsive in this regard.

The Magistrates' Court is the workhorse of the criminal justice system and deals with over 90 per cent of criminal cases. The Bill provides for a simplified regime to reflect the differing practices and pressures applying where matters are dealt with summarily. The Bill provides for a discount of up to 30 per cent for a guilty plea after four weeks of the first scheduled appearance, whether in person and/or through a legal or other representative, but before four weeks of the first date set for trial for matters dealt with summarily. This will typically be after the prosecution has satisfied its pre-trial obligations of disclosure so that any defence lawyers are in a position to advise their client as to the strength of the prosecution case and the appropriate pleas.

The Bill provides that no discount is permitted for matters dealt with summarily if the guilty plea is entered in the four weeks before the first trial date. A limited exception is provided in the Bill.

As with the higher courts, the timing of these stages in the Magistrates Courts will be capable of variation by Regulation. This is if, as is quite possible, working and listing practices and pressures in the Magistrates Courts should change in due course. As with the higher courts, it is more efficient that the periods can be changed to reflect these practices and pressures by Regulation as opposed to having to return to Parliament to change the periods.

If the delay in any case in the accused pleading guilty is beyond his or her control and he or she has pleaded guilty at the earliest practicable opportunity, the court will still have a limited discretion to confer a discount up to 30 per cent. This exception cannot usefully be further defined. It may, for example, be due to the late service of important evidence that has a major bearing on the strength of the prosecution case. The plea of the accused may be accepted to a lesser or alternative offence. The accused may even have provided a firm and reliable offer to have pleaded guilty to a lesser offence to the court and the prosecution, but the prosecution rejected that proposal with the result that the case proceeded to trial but the accused was ultimately convicted of only the lesser offence to which he or she had previously offered to plead guilty to. The reason for the delay in pleading guilty may even be due to others such as the court. The reason for the delay may not lie with either the accused or his or her lawyers for the discount to be available. The onus is on the accused to satisfy the court that this exception is made out It is not contemplated that this will require lengthy hearings or the calling of witnesses to resolve. Indeed, it is contemplated that, in most cases, this will be capable of being achieved either 'on the papers' or on the basis of counsel's submissions without the calling of any evidence.

The Bill contains an overriding provision for the court to be able to decline to provide all or part of a discount for a guilty plea within the above ranges having regard to public interest considerations, namely where the gravity of the offence and/or the circumstances of the accused are such that the sentence that would arise from conferring the discount would be so inadequate as to 'shock the public conscience'. This expression is not new and is consistent with that already used in governing prosecution appeals against sentence. It is expected that the use of this provision will be rare but it is a necessary provision to make very clear that the courts discretion is to award up to the level of the discount – it need not award the level of discount, especially for the most repugnant offender or offences. In fact, it need not award a discount at all if the circumstances demand such a course.

The Bill also allows a discount of up to 40 per cent for pleading guilty and effective co-operation with the authorities, whether by providing helpful and significant information and/or testifying on behalf of the prosecution. This is consistent with existing judicial practice. The courts have long since recognised that the concept of 'honour amongst thieves' is one that should be actively discouraged (see R v Golding (1980) 24 SASR 161).

The Bill includes a provision for a discount of up to 20 per cent for effective co-operation with the authorities, whether by providing helpful and significant information and/or testifying on behalf of the prosecution, but where the accused pleads not guilty. This too accords with current practice.

The Bill includes the allowance of an overriding discount of over 40 per cent in 'exceptional' circumstances at the absolute discretion of the court for pleading guilty and co-operating where the nature of the case, the value of the co-operation and the testimony, the risk to the accused and his family and the potential consequences to him or her in prison are such as to justify departure in the public interest from the normal upper limit of 40 per cent. This clause has been the subject of much thought. This provision is particularly aimed at offenders who give information and testify in the prosecution of cases involving serious and organised crime. These will be persons who, at considerable risk to themselves and their families, have provided valuable assistance to the authorities, generally through testifying, that has enabled major criminals involved in offending of the utmost gravity to be brought to justice. It is likely that, without the assistance of these persons, these offenders would not have been able to be brought to justice.

Whilst the Bill aims to encourage co-operation by offenders, it is especially targeted to encourage exceptional co-operation from those involved in, or with knowledge of, serious and organised crime. Hence the distinction in the Bill between 'normal' co-operation where the maximum permissible discount is 40 per cent and 'exceptional' co-operation where the possible discount is at large.

There may be unease about the prospect of criminals receiving a lesser sentence for informing on their erstwhile criminal associates but the offer of a discount in sentence in return for assisting the authorities is a valuable weapon in law enforcement, especially in serious and organised crime where other witnesses may be unwilling to come forward for fear of retribution. The President of the Queen's Bench Division in England in R v P [2007] EWCA Crim 2290 at [22] explained in strong terms, which are equally applicable to Australia (see R v Cartwright (1989) 17 NSWLR 243 at 252), the strong public interest in favour of encouraging offenders to come forward and co-operate fully with the authorities, especially to the 'Mr Bigs' of the underworld:

'There has never been, and never will be, much enthusiasm about a process by which criminals receive lower sentences than they otherwise would deserve because they have informed on or given evidence against those who participated in the same or linked crimes, or in relation to crimes in which they had no personal involvement, but about which they had provided useful information to the investigating authorities. However, like the process which provides for a reduced sentence following a guilty plea, this is a longstanding and entirely pragmatic convention. The stark reality is that without it major criminals who should be convicted and sentenced for offences of the utmost seriousness might, and in many cases, certainly would escape justice. Moreover, the very existence of this process, and the risk that an individual for his own selfish motives may provide incriminating evidence, provides something of a check against the belief, deliberately fostered to increase their power, that gangs of criminals, and in particular the leaders of such gangs are untouchable and beyond the reach of justice. the greatest disincentive to the provision of assistance to the authorities is an understandable fear of consequent reprisals. Those who do assist the prosecution are liable to violent ill-treatment by fellow prisoners generally, but quite apart from the inevitable pressures on them while they are serving their sentences, the stark reality is that who betray major criminals face torture and execution. The solitary incentive to encourage co-operation is provided by a reduced sentence, and the common law and now statute, have accepted that this is a price worth paying to achieve the overwhelming and recurring public interest that major criminals, in particular, should be caught and prosecuted to conviction.'

The Bill includes a specific provision allowing an offender to be resentenced if he or she promises to co-operate with the authorities and is sentenced on that basis but later fails to satisfactorily honour his or her side of the arrangement. He or she should be resentenced but on the basis of the sentence that they would have received but for the original deduction for the promise of co-operation with the authorities.

The Bill, provides a means to prevent the disclosure of information relating to a sentence discounted under s 10A on the basis that the material is subject to public interest immunity. This concern was strongly raised in the consultation process, notably from the judiciary, and has been dealt with in the Bill through s 9AA. This is an important provision in practice. Clearly there will be a need to protect highly confidential material relating to persons who have provided assistance to the authorities, especially in the context of serious and organised crime, that is adduced at sentencing, whether in submissions from the parties or in any sentencing remarks from the judge or Magistrate from entering the public domain. The inappropriate release of such material could be highly damaging to the public interest and the administration of justice and prejudice major investigations or trials. Indeed, the inappropriate release of such material could endanger the individuals concerned and/or their families.

The Bill does not allow an aggregation of the combined discounts for a plea of guilty and co-operation with the authorities. If an accused should both plead guilty at an early stage and offer significant co-operation at an early stage, the maximum discount, in the absence of exceptional co-operation, remains at 40 per cent.

It is not intended that the Bill will affect the general way in which the criminal courts go about formulating the correct sentence applicable in any given case. The High Court, in cases like R v Wong (2001) 207 CLR 584 and R v Makarian (2005) 228 CLR 357, has said that the correct method for determining an appropriate sentence was by a process of 'instinctive syntheses' of all the relevant circumstances. The Bill is not intended to displace or overturn this approach to sentencing. The Bill only modifies this approach to the extent that it requires the court to state in its sentence the amount of any discount that it is providing to reflect the guilty plea and/or co-operation with the authorities. The Bill does not require the court to go beyond this and to state any discount for any other mitigating factor.

The Bill retains the existing requirement that the court in determining sentence may not have regard to the fact that a mandatory minimum sentence is prescribed for the offence, even though it may result in the court fixing a longer non-parole period than the court might think was otherwise appropriate in the circumstances. This especially arises with respect to the general 20 year non-parole period provided for offences of murder. The policy and content of this requirement has been discussed by the Court of Appeal in its recent decision in R v A [2011] SASCFC 5. The Government will carefully consider its position on this important issue and respond to the court's judgement in due course. The present Bill is not the appropriate vehicle to reconsider the issue of mandatory non-parole periods, especially in respect of murder.

The Bill finally includes some limited 'tidying up' of s 10 of the Criminal Law (Sentencing) Act and consequential amendment as a result of the consultation process to clarify the operation of two provisions. The Bill uses this opportunity to 'tidy up' the operation of that section. Though s 10 in its original form merely set out the established common law principles of sentencing, it is considered that s 10 has become progressively unwieldy over recent years with the addition of various, sometimes only loosely connected, provisions. Therefore, for ease of reference and practical application s 10(1) in the Bill lists the original factors as stated in the original 1988 version of the Act whereas the additional factors added since 1988 to s 10 have been included in a new separate s 10(2).

Two consequential issues that were raised in the consultation process are rectified in the Bill. First, the existing s 10 says that there is a 'paramount need' to protect children from 'sexual predators' by ensuring the need for deterrence. The State DPP says that this provision is undermined in practice by some judges insisting that the prosecution prove something more than sexual offending against children, namely that the offending was 'predatory' rather than 'opportunistic'. The State DPP suggested that the term 'sexual predator' be changed to 'an offence involving the sexual exploitation of a child'. This suggestion makes sense and has been accepted. The amended provision promotes the original intention of Parliament in inserting this provision. Secondly, problems were identified with the interpretation of the existing section dealing with the lighting of bushfires. This has been replaced by an amended provision which makes it absolutely clear the extreme gravity with which Parliament regards such offences.

Any perception that the Bill goes too far and unfairly restricts the conferral of discounts, notably in late guilty pleas, is mistaken. The Bill is both comprehensive and fair. It is necessary to restrict the conferral of discounts for belated guilty pleas in the manner as stated in the Bill so as to tackle the underlying culture of late guilty pleas and major problems and effects of late guilty pleas. It is acknowledged that not only must the underlying culture of late guilty pleas be addressed but there are other linked issues of the criminal justice process that also require reform.

The effectiveness of the committal process and the need for timely and effective prosecution disclosure and accurate and informed and early prosecution decisions on charging are significant. A prerequisite if the Bill is to achieve its stated objectives of reducing delays and encouraging early guilty pleas is sufficient and timely prosecution disclosure of its evidence. It is acknowledged that defendants and their lawyers are not to be solely blamed for the current delays arising from late guilty pleas. The Bill is not an isolated measure or a sole panacea. It is an integral part of a series of wider and ongoing series of linked reforms to improve the effectiveness of various aspects of the justice criminal process and to continue to address court delays and backlogs.

Several measures to address the problem have been implemented. These include measures designed to reduce the workload of Magistrates to make way for more cases moving down from the District Court, specifically legislation making driving unregistered and uninsured offences expiable as well as amendments to the Magistrates Court Act in late 2009 to increase the jurisdiction of Special Justices in the Petty Sessions division of the Court to deal with other minor offences. In addition, case conferencing (also a recommendation of the CJMT) is operating in the Adelaide Magistrates' Court. This provides a forum for constructive early negotiations to facilitate the speedy and appropriate resolution of matters or identify issues and exchange information to expedite pre-trial and trial time frames. The 12 month pilot commenced in April 2009 and has been extended following positive initial reviews.

Other measures to improve the operation of the criminal courts have been recently announced. These include drafting changes to the Bail Act designed to simplify proceedings. Work has been shifted from the District Court to the Industrial Court—in particular dust diseases and liquor licensing cases and appeals from the Health Practitioner's Tribunal. This last change will free more District Court time to deal with criminal cases and help address the present backlog. The District Court has also commenced case conferencing.

This Bill is a major step forward in this Government's determination to address court delays. It sets a benchmark in Australian criminal justice reform.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law (Sentencing) Act 1988

4—Amendment of section 9—Court to inform defendant of reasons etc for sentence

This clause substitutes subsection 9(1) of the principal Act to require a court, when sentencing a person who is present in court (whether in person or by video or audio link) for an offence to state the sentence it is imposing and the reasons for the sentence.

5—Insertion of section 9AA

This clause inserts new section 9AA into the principal Act. The new section requires a court to record certain information in relation to sentences that have been reduced on account of the defendant cooperating with law enforcement agencies or pleading guilty.

The clause further allows a person prescribed by the regulations to request that a court not release information in the possession of the court that relates a reduction of sentence for cooperating with law enforcement agencies, or a review of such a sentence conducted under new section 10B, on the grounds that the information is subject to public interest immunity. Until that application is finally determined, the information cannot be inspected, nor a copy obtained, by a person.

6—Substitution of section 10

This clause substitutes the following provisions for section 10 of the principal Act:

9E—Purpose and application of Division

This section clarifies the relationship between Part 2 Division 2 of the principal Act and the common law. The provision also makes clear the fact that, unless a particular provision in the Division expressly provides otherwise, nothing in the Division affects mandatory sentences, mandatory non-parole periods and similar special provisions.

10—Sentencing considerations

This section sets out the matters a court must, or must not, have regard to when sentencing a person for an offence.

10A—Reduction of sentences for cooperation etc with law enforcement agency

This section provides that a court may reduce a sentence it would otherwise impose on a defendant on account of the fact the defendant has cooperated or undertaken to cooperate with a law enforcement agency.

The section contemplates 3 different circumstances in which a reduction may be given. First, subsection (2) allows a court to reduce the sentence of a person who has pleaded guilty and who a court has declared to be a person to whom subsection (1) applies by an amount the court thinks appropriate in the circumstances, including reductions of more than 40 per cent. However, a declaration can only be made, and hence a sentence reduced, under this subsection if the court is satisfied that the defendant has cooperated or undertaken to cooperate with a law enforcement agency and that the cooperation—

(a) relates directly to combating serious and organised criminal activity; and

(b) is provided in exceptional circumstances; and

(c) contributes significantly to the public interest.

Second, subsection (3) allows a court to reduce the sentence of a person who is not subject to a declaration but who nevertheless has pleaded guilty and has cooperated or undertaken to cooperate with a law enforcement agency. However, a reduction under that subsection cannot exceed 40 per cent.

Finally, subsection (4) allows a court to reduce the sentence of a person who has not pleaded guilty but who nevertheless has cooperated or undertaken to cooperate with a law enforcement agency. However, a reduction under that subsection cannot exceed 20 per cent.

The section also sets out matters a court must have regard to in determining the quantum of any reduction under the new section.

10B—Review of sentences reduced under section 10A

This section allows a court to review a person's sentence that has been reduced on account of the person undertaking to cooperate with a law enforcement agency but where such cooperation has not occurred, or only part of the undertaking honoured. A court may, after reviewing the matter—

(a) vary the sentence previously imposed on the defendant by increasing the sentence by such percentage as the court thinks fit, having regard to the extent to which the defendant failed to comply with his or her undertaking;

(b) confirm the sentence previously imposed on the defendant;

(c) make any consequential or ancillary orders the court thinks fit.

10C—Reduction of sentences for guilty plea in Magistrates Court etc

This section sets out a scheme whereby a sentence that a court would have imposed for an offence may be reduced on account of the defendant pleading guilty. This section (as opposed to section 10D) applies where the sentencing court is the Magistrates Court, some other court sentencing for a matter that was dealt with as a summary offence, or in the circumstances prescribed by the regulations.

The maximum amount a sentence can be reduced is dependant upon when the defendant pleads guilty; subsection (2) sets out the maximum discounts available in relation to pleas at various stages in the proceedings.

The section provides for a defendant to receive the maximum available reduction despite having pleaded guilty outside the relevant period if the reason he or she could not meet the deadline was one set out in subsection (3).

The section also sets out matters a court must have regard to in determining the quantum of any reduction under the new section.

10D—Reduction of sentences for guilty plea in other cases

This section provides a scheme of the same kind as in section 10C in circumstances where that section does not apply. For example, this new section applies to the District Court and Supreme Court sentencing indictable matters.

The scheme is essentially the same as in section 10C, modified to take account of the different stages of proceedings applicable in relation to indictable matters.

7—Repeal of section 20

This clause repeals section 20, the effect of which is now located in new section 9E.

Schedule 1—Transitional provision

1—Transitional provision

This clause makes clear that the Criminal Law (Sentencing) Act 1988, as amended by this measure, applies in relation to proceedings relating to an offence instituted after the commencement of this measure, regardless of when the offence occurred.

Debate adjourned on motion of Dr McFetridge.

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