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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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YOUNG OFFENDERS (RELEASE ON LICENCE) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 17 October 2013.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:37): I rise to speak on the Young Offenders (Release on Licence) Amendment Bill 2013 and indicate that the opposition will be supporting the bill. We are considering this bill, which is to amend the Young Offenders Act 1993, as a result of a judgement of the Hon. Trish Kelly of the Supreme Court, in which she has referred a question of law for consideration of the Full Court of the Supreme Court of South Australia, which is expected to be heard by the end of November this year, so time is of the essence.

The situation is this: the question of law that has been referred for consideration by the Full Court arises out of an application by two young men who are currently in prison—specifically, a youth training centre—who have made an application through their counsel to apply for release on licence; that is, release from custody. In 2009, Justice Margaret Nyland, I think, heard a case, and I assume the jury found that, on charges where two youths were among four youths and an adult, all were convicted in December 2009 for the gang bashing and ultimate death of a Mr Akol Akok. He was 26 years of age. The tragic circumstances surrounding this all occurred at Pennington. The five were convicted by a jury in November 2011, when bail was revoked, and sentencing by Justice Nyland occurred on 11 July 2012.

One of the youths seeking release was 16 at the time, and is now aged 19. He received a life sentence with a non-parole period of five years. The second was aged 15 at the time, and is now aged 18. He received a life sentence with a non-parole period of six years and two months. Justice Nyland ordered that the pair serve their sentence in a youth training facility until the end of this year, and then both will be transferred to an adult prison. They are the sorry circumstances surrounding the case which is now the subject for consideration by the Full Court, in particular the applications for release on licence which, as I understand it, were lodged in May and July this year, respectively, for each of the youths.

There was a hearing in September and, as I understand from reading some commentary on the case, essentially the prosecution argued that section 37, which is under consideration today, of the Youth Offenders Act, only applies to youths who are not subject to a non-parole period. As members who are following this debate would be aware, in any event, section 37 makes provision for the opportunity for people to apply for release on licence available to juvenile offenders.

The prosecution further argued that the original function of section 37 was to provide a mechanism by which a youth with no non-parole period, and thus no other means of release, could be released. However, the counsel for one of the youths has argued that section 37 provides a mechanism to facilitate early release of a youth on licence prior to their removal to an adult prison. He is obviously arguing for a broader interpretation and, therefore, to receive some opportunity on behalf of his client for release.

Why are we here? We are here because the government—and the opposition agrees with this—takes the view that it would be unacceptable for the two youths in question to be able to succeed in their application when the history of the development of the law and the intentions of both previous and current governments are such that juveniles should be clearly determined (that is, youths who are convicted of murder) and should be sentenced as adults, and that includes having a minimum non-parole period.

There is a history of the development of the laws in this regard, and there are a couple of aspects which I wish to refer to. As the law currently stands, if a youth is found guilty of murder then, in accordance with section 29(4) of the Young Offenders Act and the Criminal Law Consolidation Act 1935, that youth must be sentenced to life imprisonment. The courts have taken the view that, when sentencing a youth to life imprisonment for murder, it is only appropriate that the youth be sentenced as an adult. However, this position should be clearly reflected in the statute.

This bill makes an amendment to section 29(4) to provide specifically that a youth who is being sentenced to life imprisonment for murder be sentenced as an adult. The amendment will also ensure that, in all cases where a youth is being sentenced for murder, the court will continue to apply section 32 of the sentencing act due to the operation of section 31A. As members may be aware, when it commenced, the sentencing act did not apply to the sentencing of children.

There is a history to legislation reform and case law back from the mid-1980s where there was the development of the ultimate standard to be accepted, and that is that in the serious offence of murder and, in addition, where repeat offensive behaviour forms part of a pattern of repeated offending, the youth should be dealt with in the same way as an adult. It has not been unusual for youths from 15 or 16 on to be treated as an adult for serious offences. Quite often they serve their sentences until past the age of 18 years in the youth detention facility, and there is accommodation for that.

In this particular case, the young people are now both adults and, under Justice Nyland's sentencing requirements, they would be transferred to an adult prison at the end of this year. The clarification of this law has all the hallmarks of being introduced to deal with this specific case. It is not a practice which the opposition or even the government would be one to allow the application of legislation to respond to a particular person or activity.

In fact, we have a process in the parliament that, where a particular person or entity is to receive the benefit or application of proposed laws, it is described as a hybrid bill and there is a process by which there is a consultation, compulsory conferencing, opportunity for submissions to be received and careful consideration of the matter before it is progressed. In general terms, it offends the principle that laws should apply to everybody rather than be dealing with specific persons. In that way, we would not be violating a principle which ensures that people are equal before the law and can expect to be treated as such.

I think it is fair to say that, although the particular circumstances of this case have triggered the bill—and that has been quite openly acknowledged by the government—it is their expectation that it could apply to other parties. Whilst there is a question of time being of the essence to deal with ensuring that any right to apply for a licence for release is extinguished in this particular case, there are other cases where that may apply.

I do not know, but it is possible that I was reading the annual report of the Director of Public Prosecutions, which was tabled by the Attorney today. Members would be aware that, in the case of R v JW, a youth was charged with a count of murder; it was alleged in 2010 when JW was 14 years of age. He was part of a joint enterprise with another 14-year-old boy, JT, to murder 63-year-old Pirjo Kemppainen. JT pleaded guilty to the murder of Mrs Kemppainen. At committal, he received a discount for his sentence for his promise to give evidence to the prosecution in the trial of JW.

There is reference in the DPP's report to the circumstances, but I think it is fair to say that members would be familiar with the reporting of the circumstances surrounding this case. One can only think in horror about the fate, and circumstances preceding it, of Mrs Kemppainen, particularly that at her age she should suffer at the hands of these children in such a cruel way, and I think it offended the senses of any decent person. I will not go into the particulars of what occurred, but suffice to say that there was a decision and an enterprise in which she was found murdered and, whilst there were some legal questions about joint enterprise, one of the parties was found not guilty.

The whole sorry case is there, and it just highlights for us that even in this last year we have had cases where children are involved in obscene and very serious crime and which understandably have the reaction from the community and expectation that they will serve a severe penalty and that whatever is administered is actually executed in the administration of justice.

We are not provided, in the second reading from the Attorney, with any detail of what other cases are likely to be, potentially at least, the subject of an application for licence to avail of this if we do not pass this piece of legislation, but I think it is something that we should be privy to, and I would ask the Attorney to provide that information. I think it is important for the parliament also to be reassured that there are other potential cases where an application could be made. I would certainly feel much better progressing the legislation, which for the reasons the Attorney has pointed out is necessary, if we could be satisfied that there are other cases in the wind.

From the sentencing remarks of Her Honour Trish Kelly, it seems as though this is the only pending application before the courts, but perhaps the Attorney could provide an indication of how many children are in the two categories of either being convicted of murder and/or repeat behaviour—it is two categories, in fact, that this covers—who could be eligible to apply for a licence prior to the expiration of a nonparole period and who are currently in our prison/youth training system.

Secondly, I think from the point of view of providing some reassurance to the public that this is—it is sad, actually—not a one-off occasion as to how many children have been convicted of murder (perhaps in each of the last five years) in South Australia and what sentences were issued with respect to convictions for each of those.

So, I would ask that material be provided. If it is not available to the Attorney during the course of this debate, and I think there are a couple of other members who may wish to make a contribution, I would certainly like to have some of that information available. It is a very sad situation but I think we need to ensure that we are passing legislation to not only prevent an injustice in this particular case but that we have some reassurance that it is necessary—sad but necessary—that we make provision for this in this legislation.


[Sitting extended beyond 18:00 on motion of Hon. J.R. Rau]


Mr VAN HOLST PELLEKAAN (Stuart) (17:56): I rise to reaffirm the opposition's support for the Young Offenders (Release on Licence) Amendment Bill 2013, and I do so as the shadow minister for police, the shadow minister for corrections and also representing the expectations of my electorate of Stuart. For me, this is not about removing any rights that a convicted murderer has, other than a technicality which exists which would, unexpectedly, allow a young offender to apply on licence for release.

The intention of the law is that convicted murderers be sentenced as adults. The fact that one convicted murderer is serving a sentence in a youth training facility should not allow that person to apply for release prior to the expiry of the non-parole period. The higher priority is the murder conviction and that the non-parole period be fully served, rather than any unintended leniency associated with where the sentence is being served.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (17:57): Can I thank the contributors. There are couple of quick points I would like to place on the record. The first point is that I will try to ascertain whether there is information available of the nature requested by the honourable member for Bragg about how many other people might be in a similar category, although I have no idea as to how easy or difficult it may be to obtain such information.

I make the point that we need to bear in mind that this particular circumstance is something that nobody had ever turned their mind to, so now that people's minds have been alerted to this problem I imagine there is a whole raft of people who might, for the first time in the last week, be turning their minds to whether or not they might fit within this and it might be difficult for us to ascertain how many people might fit into that category and even more difficult to ascertain how many might decide to take it up. I just put that on the record.

The other thing I wanted to say was something which I hope is helpful to the members and I certainly want it on the record for those in a different place. I want to make it clear that we are here about this matter not because of one case, but because this argument has raised a point of broader general principle. The point is that a youth convicted of murder should only have one bite of the cherry, and that is a non-parole period—one bite of the cherry: a non-parole period—and not a second go via an accidentally leftover provision which was, in fact, overlooked from the previous regime which was designed in a time and in a regime where there was no non-parole period.

It is not just about this case; it is about what turns out to have been a drafting oversight when the policy changed from there not being a nonparole period to there being a nonparole period, and inadvertently the interplay between that change and the provision of a licence regime in this context was not considered. This case has thrown that up.

What I can say without any shadow of a doubt is that now that this genie is out of the bottle, whether there are two, three, five or 10 people sitting somewhere now who might want to jump through it, it is absolutely certain that if we do not fix it in the future there will be other people who want to jump through it. It is clearly an anomaly.

It was clearly never intended that people who are convicted of murder should have the benefit not only of a nonparole period but of a release on licence as well. That was never intended. What we are actually doing is aligning the law with what everyone thought the law did—that is it. I thank everybody for their contribution.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (18:01): I move:

That this bill be read a third time.

Bill read a third time and passed.

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