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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-09-04 Daily Xml
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CRIMINAL LAW (SENTENCING) (GUILTY PLEAS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 11 July 2012.)

Ms CHAPMAN (Bragg) (11:10): I rise to speak on the Criminal Law (Sentencing) (Guilty Pleas) Amendment Bill 2012. Further, I indicate that the opposition, after some consideration, still has some concern as to the discounting percentages that are being offered in this second try of the legislation. That is a matter we will have under further consideration in relation to any amendments we will foreshadow.

There are some other aspects, in addition to the discounting, which are specifically unrelated to defendants or their lawyers which contribute to current court delays arising from late guilty pleas, and those matters are also under consideration by the opposition.

This bill comes in the wake of the Criminal Law (Sentencing) (Guilty Pleas) Bill, which was rejected in the Legislative Council. The government has determined that it will now proceed with two aspects of sentencing in two separate bills. The second of these bills, the Criminal Law (Sentencing) (Supergrass) Amendment Bill, is to follow the debate on this bill.

Members will recall that, back in March 2011, the Attorney-General introduced the Criminal Law (Sentencing) (Sentencing Considerations) Amendment Bill 2011. Under that bill, the attempt to codify the current judicial sentencing practice and to provide limits on the freedom of the courts was done with two primary objectives. The first was to reduce the backlog in criminal cases coming to trial by encouraging offenders who are minded to plead guilty to do so in a timely way, and that is the purpose of the bill we are currently debating.

The second aspect of that bill was to encourage offenders to assist authorities in the administration of justice; that is, if they were to provide valuable assistance in the context of serious and organised crime, that would attract the opportunity for a discounting in sentencing, and that issue is the now the subject of the second bill on today's Notice Paper. So, these two issues have been separated.

I note in the media that, when the government was unsuccessful in passing that principal bill through the Legislative Council, it was at pains to cast a shadow over the helpfulness of the opposition in relation to the advance of their bill; their bill, in the form that the Attorney-General wanted, had come to a crashing defeat. I think I am being generous and kind to the Attorney to suggest that his description of us as being unhelpful was probably a very tame interpretation of what he attempted to present to the people of South Australia, as though we had thwarted his attempts to remedy this position.

I disagree with the Attorney-General's comment on that. I think what has happened is that the opposition, and indeed some of the minority parties, pointed out to the government the inadequacies of the legislation that it presented and were indeed very helpful in highlighting areas where this was simply not going to achieve the objective, worthy as that was, of the government in the bill that it had presented.

I think it is unfortunate that the Attorney takes the view that the constructive criticism, the amendment to a bill and the highlighting of deficiencies is something that is unwelcome to the government, when in fact the very purpose of this parliament is to point out when they have not proceeded with something to bring into effect even their own objective. Churlish, to say the least, but nevertheless that is the sort of tirade of criticism that the opposition gets when it is being helpful.

Indeed, the fact that the government came back to us on 11 July with the tabling of the two bills that we currently have before us, one now and one to follow, with significant amendments, demonstrates the worthiness of the path that the opposition has taken, so that we are able to present, at least in this bill, with something that is, we think, in the right direction. As I said in opening, and I will repeat for the benefit of the Attorney, we are considering some aspects that remain overlooked and which we think could advance this bill further, and we will be raising those in due course.

Let us just look then and highlight what this bill is again. The purpose of this bill is to reduce the backlog in criminal cases coming to trial by encouraging offenders who are minded to plead guilty to do so in a timely way. The figures that were provided to us for 2010-11 show that late guilty pleas were apparently the cause of 36 per cent (that is 386 of the 1,073) of fixed High Court trial dates that were non-effective. I am disappointed that those same statistics that the government used to support the bill that was introduced in 2011 have been presented again in the second reading and in the briefings provided by the government.

I do not know why the parliament should have to proceed with these types of bills without updated information. I would have thought at the very least we could have had the 2012 data. This material was introduced on 11 July. The minister could have had that data available to him and provided it to us in his second reading speech, and not have been lazy and just thrown in last year's in support of the previous bill.

In any event, we understand that a significant portion of trial dates that are set do not ultimately proceed to trial where guilty pleas were obviously received at a later stage. We in the opposition recognise, of course, that there are often a lot of reasons for that, but nevertheless a process that will encourage the consideration and hopefully adoption of defendants to be minded to plead guilty is something that we are looking at and are keen to explore.

The house will be aware that currently at common law a criminal sentence may be reduced in response to an early plea of guilty, up to 33 per cent where the defendant pleads guilty at the first opportunity. A report by the Victorian Sentencing Advisory Council suggested that the maximum discount applied in Australia may be as high as 35 per cent in New South Wales, 35 per cent in Tasmania and down to as low as 25 per cent in Western Australia. So that operates. It is not a new concept that defendants are given some consideration and benefit in their sentencing for pleading guilty. This bill provides for a series of discounts for a plea of guilty, graduating upon the timing of the guilty plea. So, in essence, the earlier the plea the greater the discount, with an upper limit of 40 per cent.

There is no doubt that the academic world and, in fact, the judicial world have from time to time been critical of the value of providing discounts for early guilty pleas. I think it is fair to say that the whole plea bargaining process is one which the public generally does not understand or appreciate fully and it has often attracted criticism. The average person who is not involved either in a court case as a defendant or in the judicial or legal world finds it quite uncomfortable to think that you could be guilty of something and somehow or other you can go through some plea bargaining process that would diminish, ultimately, the total penalty. Usually, on a guilty plea to the most serious of the offences that someone might be charged with, the other charges drop off and there is no prosecution of those in exchange for the guilty plea on a principal offence.

The public generally does not understand that. It would be almost untenable for the capacity of our courts and, indeed, for the courts to be able to function, if in fact we did not have that process operating. But it is not widely understood how it works, and whether it is fair to everybody or whether some person who might have a better lawyer than the next person might have a greater advantage. These are things that are foreign and, certainly, are viewed with some scepticism by the general public.

I think discounts for guilty pleas are a little bit in that category. The public does not always appreciate the worth of someone who is clearly guilty and admits they are guilty rather than the crown being put to proof and having the cost of a trial, the calling of witnesses and the like, and conducting committals and so on, in some way being rewarded. The general public rather finds that very offensive, actually, and thinks that there should be a penalty and they all should get the same. That is the simplistic approach that, often, I am sure, most members here would be met with in their general constituency.

Again, we are all faced with the proper administration of the criminal system and to do that in a timely manner and with the resources that are allocated means that this is an opportunity that cannot go unheeded. It does happen and it has happened for decades where, as I have said, in various states, up to a 35 per cent discount is already granted to people who do the right thing, if I can put it as generally as that, and fess up early and enter a plea of guilty. One article, entitled 'The Sentence Discount for Guilty Pleas: Time for a New Look', which was published in 1997 by Mack and Anleu, referred to quite a strong criticism when it said:

A plea bargain in its crudest form—

that is, I should say, referring to discounts for early guilty pleas—

puts an inappropriate burden on the accused's choice to plead guilty, undermines proper sentencing principles, risks inducing a guilty plea from the innocent, undermines judicial neutrality and independence and does not directly address the problems of time and delay which motivated its introduction by the courts.

Other jurisdictions have, however, looked at this situation, and last year the United Kingdom's Conservative-Liberal Democrat government was forced to back down on a similar proposal to increase discounts there from 33 per cent to 50 per cent. Here, the South Australian Labor government is introducing this 40 per cent under a graduated scale, but over in England the Labour shadow justice secretary, Sadiq Khan, has claimed:

There is no evidence that cutting sentences by 50 per cent will lead to more early guilty pleas. Instead it will lead to people serving shorter prison sentences than they deserve.

He further went on to say:

This Government is still pushing this policy because their overriding objective is to cut costs not do justice. They have yet again shown they know the price of everything but the value of nothing.

It seems that those of the Labour persuasion in the United Kingdom are very sceptical about the merit of introducing such a scheme, in that instance, up to a maximum of 50 per cent; and, in fact, the justice secretary in the United Kingdom ultimately withdrew that legislation.

On 16 August the government of Western Australia tabled the Sentencing Amendment Bill 2012, which sets 'a maximum discount of 25 per cent for a guilty plea and requiring courts to openly state the percentage discount they grant in recognition of a plea of guilty'. The Western Australian Attorney-General I think is about to take the plunge into federal parliament. He is an excellent Attorney-General, I would say. I have met Mr Porter and it seems that he would clearly be one of the most outstanding of the attorneys-general around the country (not to overlook our own as having some capacity); nevertheless, we wish Mr Porter well in that endeavour. However, in his contribution, Mr Porter said:

Currently in Western Australia, cases suggest that an early plea of guilty may attract a reduction in sentence between 20 per cent and 35 per cent, depending on the circumstances...However, the trend has been for a standard discount of 25 per cent to be given for a plea of guilty, not only for one at the earliest reasonable opportunity. Limiting the discount available for a plea of guilty will assist with addressing community disquiet about the sentencing process.

The manner in which other jurisdictions therefore have addressed this, or embraced it, or rejected it is, of course, extremely diverse. We have repeatedly from the opposition indicated from time to time our scepticism of the advance of legislative remedy to criminal conduct, or sentencing or rates of unacceptable and criminal behaviour in this state without being confident that the legislation will actually translate to any great benefit.

We are not critical of the government attempting to achieve an outcome such as any minimising or reduction in the waste of resources for criminal trials, as is its attempt to do so in this instance. We are just a little concerned, when we do look around the world at how other jurisdictions have dealt with this, as to whether it is all puff and wind for the benefit of going out with a press release and explaining on radio about how fantastic is this government in its fiscal management (it has a long way to go in establishing that, I might say). In any event, in this instance, it is not only that they have been tough on law and order but also that they are responsible managers of resources that is more the objective rather than to actually translate to any great benefit for justice.

However, that said, as I said in opening, the opposition is prepared, as its does on a lot of this legislation, to give it a go and allow it to be presented as an option, as a possible remedy to the ill we all seek to redress. In addition to the 10, 15, 30 and up to 40 per cent discounting that will be allowed, depending on the timing of entering of the plea or offer to enter a plea, regardless of which court process, is one that we think is of no value at all in the sense of that gradation.

The other aspect that is a little concerning is that the government appears to have gone to considerable lengths to identify in the statute this gradation of entitlement, depending on time or on certain circumstances that is beyond the defendant's control that there is any delay or that there is a court-related delay or some legal argument that needs to be identified, or some other good reason that the court is satisfied. These are the reasons-based delay for which some credit purports to be given by the discounting. Yet, having been so prescriptive in the legislation, they then want to change the timing of the regulations, if they see fit, by regulation.

The argument then, as the government usually does, is to say that, 'Look, we like to have this in the regulations so we can vary this to accommodate and be responsive to the working and listing practices of the court or pressure on the higher courts to be able to accommodate it,' but this is where the inconsistency comes. We have this great desire or need to be prescriptive, we need to not just codify and provide a discounting legislatively, but we have to have it all graduated and have special different options available so that if you fit in the matrix you then get X, yet the government wants to maintain the regulation power to be responsive.

I see enormous inconsistency with the government in the way it drafts these bills. The one thing I will say that the opposition strongly welcomes is that there will be an overriding provision of any court to be able to decline to provide all or part of the discount for a guilty plea within those ranges, having regard to public interest considerations. That relates to such matters as the gravity of the circumstances such that, if a discount were to be conferred on the offender, it would 'shock the public conscience'. I will refer to a matter when we come to the supergrass of a particular instance under that bill where we have serious and organised crime and the offender is personally held in very low regard in the community. Sometimes it can be nothing to do with it being serious and organised crime to the extent of what we see as a bikie up there or someone that some people associate as deserving all they get.

Sometimes it can be a circumstance such as the Eugene McGee case and the circumstances surrounding the case and the penalty that was ultimately imposed—or failed to be imposed, depending on the view of the public. Generally, I think it is fair to say that the public thought it was unconscionable that someone who was highly educated, especially in the law, attracted only a relatively low penalty for conduct which resulted in the death of the cyclist in circumstances where he also failed in his responsibility to immediately contact the police.

So there were circumstances around that. They were very public, and there was clearly a level of antipathy toward the accused in that case. The shock to the public conscience could actually relate to someone where there was widespread publicity around the case—and there was, clearly, very negative publicity in the instance of Mr McGee.

Of course, the other type of situation is, again, one that involves the reputation of the accused—or, in the case of Bevan Spencer von Einem, someone of his history, and I put that in a public sense. Not only is he a convicted murderer but, from time to time, his name is raised, and I think there would be hardly a person in South Australia familiar with criminal cases who would not be aware of the circumstances surrounding the death of the Kelvin boy and the subsequent conviction of von Einem. It would be galling to any ordinary member of the public to think that there would be an offer of discounting for behaviour when the public was so outraged by an event.

I want to say here that sometimes—and not necessarily in Mr McGee's or Mr von Einem's cases—the public reputation that defendants attract subsequent to media intervention in the publication of information about these cases does not necessarily reflect the vehemence which the public subsequently feels towards that defendant. I think there is sometimes a lot to be answered for in the publication of material but, unquestionably, when there is a victim who has suffered considerable pain, sometimes ultimately ending in death, or where the victim is a child or an aged person, these are all circumstances where the public is usually outraged, and I think it is fair to say that that outrage, fanned by public repetition, means there is a wholesale rejection of any leniency whatsoever for the accused.

To some degree, I think it is very difficult for judges, even with the common law practice and opportunities that they have, to be able to take up their responsibility in taking all considerations into account before sentencing. It has to be coloured already by the fact that the public are so bruised and offended by this conduct that they are really locked into having to apply the most serious penalty because to do otherwise would indeed shock the public conscience. That is an important aspect of this bill which we welcome and which certainly does look at one of the deficiencies in the previous legislation.

I did say in opening that there were some other aspects that we are concerned about, factors which do not relate to the behaviour or failure to act of the defendants or their legal counsel but do ultimately relate to there being delays in these cases, which, of course, include the most obvious, which is having a committal process and often the delay in prosecution disclosure.

This is not necessarily something that is a fault of the prosecution. Sometimes witnesses are late in coming forward and sometimes information comes to their attention which results in very late disclosure to the defendant for the purposes of making the assessment and, consequently, often the advice from the legal counsel to the defendant as to the merits or otherwise of them considering a guilty plea.

Being able to get legal aid funding is also something that, especially in the latter part of the financial year, often becomes problematic. Usually, legal aid has run out and there can be some delays in that occurring or the decision being made on that. So, these are other things which, as far as we are concerned, should be picked up. We have had the advice on a number of these things for years and it is time that we looked at their consideration.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: The Attorney interjects to suggest that that, of course, would not affect this matrix of discounting that he has developed because it relates to no fault for the defendant. We are saying that there are other issues that need to be addressed in relation to remedying the court time that might be wasted as a result of not having some of these issues resolved.

The bill also clarifies the paramount need to protect children from sexual predators by ensuring the need for deterrence and clarifies the interpretation of the existing provision dealing with the lighting of bushfires. Both of these aspects needed to be sorted out and we are pleased that the government has covered that.

In short, we say that this bill is significantly better than the bill that was presented to us in 2011 and we are, as I say, looking at how we might introduce a discounting system that is fair. We are not satisfied that the matrix of the government is necessarily the best way to deal with it, but we are considering that and we are also looking to fix up some of these other aspects that we have referred to.

Can I say in concluding our position on this that what is very important to actually bring about early resolution—especially by the committal stage, which is when the really heavy expense starts to run—is that the police and the DPP have to, in every possible way, try to make sure that they have got all the information together.

There is no question that there are circumstances where that is beyond their control, but I am sure the Attorney has been in the situation, and I certainly have been, where there are repeated adjournments, even at the precommittal stage, to facilitate availability of witnesses and so on and we find out months later that the witness has not even been interviewed, let alone trying to find a time when they might be available to come for a committal. So it is very important that the people who are conducting the investigations for the purposes of the prosecution are up to speed and make sure that they get all that information together. All of the hard work that might be done to try to facilitate the meritorious objective of this bill will be lost if we do not make sure that the other side of the coin is also full bottle, fully resourced and actions their prosecution to facilitate readiness and disclosure at that early stage. With those words, I indicate that the opposition will be supporting the passage of the bill.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (11:45): Sorry, I know that the member for Fisher wishes to speak but I have just been advised that there is another matter relating to the matter that was previously before the house, and I am advised that we need to, in effect, go back to the previous bill for a moment. I am just giving you a bit of an explanation here so I am going to move that the debate in relation to this be suspended on motion and, for the member for Fisher's benefit, it is my understanding that we will not be holding you up for very long. The idea is that I am moving that we suspend this debate to return back on motion and then we can go on with the member for Fisher's contribution.

Debate adjourned on motion of Hon. J.R. Rau.

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