HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-10-31 Daily Xml
Contents
Pdf Xml

CRIMINAL LAW (SENTENCING) (SENTENCES OF INDETERMINATE DURATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 17 October 2013.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:45): I rise to speak on the Criminal Law (Sentencing) (Sentences of Indeterminate Duration) Amendment Bill 2013. The Attorney-General introduced this bill earlier this month, and it is proposed that it will amend the Criminal Law (Sentencing) Act 1988, being the principal act. Under section 23 of that act, an offender who has been assessed as being incapable of controlling, or unwilling to control, his or her sexual instincts maybe detained in custody by order of the Supreme Court until a further order; it is what is known in the industry, I suppose, as an indeterminate sentence.

The principle sitting behind this legislation is essentially that sometimes it is necessary to protect the community that such a practice be applied, and it is through this section that it occurs. It is important to note that, under our criminal law principles, as reflected in our legislation, when someone is charged with a criminal offence they need to know what they are charged with—that needs to be clear; we have lots of rules around that—and then when they are sentenced, that also needs to be clear.

It must also be precise, to the extent of there being a clear and defined term of imprisonment if that is to apply, and indeed what rules might apply for early release. All of that is embraced with statutory protection, and the Criminal Law (Sentencing) Act 1988 covers a significant amount of that, in addition to the enormous body of common law.

What has been identified is that, although section 23 makes provision for the continued detention in custody of an offender (almost inconsistent with the principles that I have just outlined), it is done so on that statutory basis and on the clear understanding that it is necessary to protect the community.

Release on licence, under section 24 of the act, has been held by the court to involve the exercise of a discretion on similar criteria to those under section 23. So, one is the provision of further detaining in custody, and then there is provision under section 23 for release on licence. Section 23 makes provision:

having taken into account both the interests of the person and of the community, it is of the opinion that the order for detention should be discharged.

This is in respect of an application for licence for release and the obligations of the detention, as I have previously indicated. What this bill purports to do is to make it absolutely clear that, in the current absence of any explicit guidance, the safety of the community must be regarded as the paramount consideration when the Supreme Court is considering either an application for discharge of an order under section 23 or an application for release of licence under section 24.

So, there is a clarification sought to be made there. I am not entirely clear as to whether that has been the subject of concern in application, but I do note that in a briefing provided to the Hon. Stephen Wade in another place he was advised that there were 10 offenders subject to section 23 orders. Those offenders are currently incarcerated or detained—whatever the modern word is these days—at James Nash House and other prisons. Two are subject to section 24 licences and two of the 10 are awaiting placement on section 24 licences when accommodation is available. That is just some data that, as I say, I have not personally been provided with but the Hon. Stephen Wade has provided us with.

Members would be aware that we do have the James Nash House facility, which does accommodate under detention a number of occupants. It is usually oversubscribed to the extent that there is always a waiting list. I think it was actually the honourable premier Mr Bannon who opened that facility in the 1980s, if I can recall correctly. It is in reasonably close proximity to the Yatala Labour Prison, which was the principal prison in operation at the time. It had already been supported by I think still the old prison at Mount Gambier and the less secure prison at Murray Bridge.

So, notwithstanding its proximity to the principal prison, we did have other prison facilities, but at a time when it was recognised that it was important to have distinct facilities—that is, distinct from a prison and distinct from a mental health facility, so that if people had undertaken certain conduct for which they would otherwise have been treated through the criminal courts, except for the fact that they had a mental incapacity, very often these people could then be necessarily held in a secure accommodation for an extended period. Especially under the provisions for sentencing if the party is incapable of controlling or unwilling to control his or her sexual instincts, then they are frequently accommodated at James Nash House.

Members might recall that, under this government's early proposal, they were going to build a new prison at Murray Bridge, and those in forensic detention, such as those in James Nash House, were going to all be relocated to Murray Bridge. There was certainly some public outcry and professional outcry from the mental health world, who are often asked to provide services to these people who needed special care. Obviously, the correctional services office, who look after the management and supervision of our prison population, does a fine job, but we needed specialist people to deal with those who were in James Nash House and otherwise under forensic detention.

So, essentially, what occurs is that we have the people in this category accommodated in James Nash House. Some are still in prisons, even though they are in a position to be eligible for access to James Nash House because of their mental incapacity, but there is simply no room for them. From time to time, we have people—in fact, a whole ward was allowed in the Glenside campus of the Royal Adelaide Hospital as it is now known, and slowly but surely they have been removed from those premises as well—but the Glenside Hospital has taken up responsibility for the government in accommodating some of these people over a period of time. So, it is a very sad but necessary service that is provided by the executive.

It is important to note that we are probably never going to be rid of the responsibility to provide accommodation and security for these people because I cannot ever imagine a time when we might be changing the law to disregard the safety of the community. I certainly hope it is not in my or my children's lifetime that such a thing would be considered. I make the point that its current resources for this responsibility are clearly inadequate.

James Nash House—I am pretty sure it was built in premier Bannon's time—had acquired quite a significant area of land. If people are familiar with that facility they will know that there are paddocks around it. My recollection is that after the government decided it was going to abandon its plan to relocate these services to Murray Bridge and cancelled the prison, there was some effort made to sell off land around James Nash House, which I think is very disappointing because this is an area where we need more resources rather than less. Certainly, I think it is shameful that any of these people are held in prison facilities, and that, unfortunately, is still the case.

The other area of reform under this bill is that currently the court is only required to consider the report of at least two legally qualified medical practitioners when determining an application for a discharge of an indeterminate sentence order (that is within section 23) and this bill imposes the same requirement in relation to an application for release on licence (section 24). The bill also inserts a requirement that medical practitioners are to be nominated by a prescribed authority. On the advice received by the Hon. Mr Wade, I understand that the prescribed authority is likely to be the director of forensic mental health, currently forensic scientist Dr Ken O'Brien, who is based at James Nash House.

We further understand that this is a recommendation, or at least it has the support of the Parole Board chair, Frances Nelson QC, who does a mighty job on the Parole Board with the undertaking of those duties. The principle behind these changes, as I understand it, is that currently the task is a risk assessment task not a medical one. That does introduce, I suppose, the opportunity for counsel representing these people to GP shop for certain expected reports that might be supportive of their client. But, as Ms Nelson rightly points out, most of these people who are the subject of these orders are not actually mentally unwell, they do not have a mental illness, they have a mental incapacity, and there is a significant difference. That is not to say that some people with a mental incapacity do not also, from time to time, suffer from a mental illness, but there is clearly a distinction.

There is also provision in the bill to reduce the frequency of the relevant board's reporting requirements under section 23(9). It is proposed to be (now) an annual report rather than six monthly. There is provision to amend the definition of 'relevant offence' in section 23(1). The relevant offence, of course, for the purposes of this act, is to cover in what circumstances the offence may have been conduct relevant to that offence, and that is to be expanded under this bill to include an offence of failing to comply with any reporting obligation relating to contact with a child without reasonable excuse where the defendant is a registerable offender under the Child Sex Offenders Registration Act 2006. That, we clearly understand, accommodates the contemporary legislation in this area, which we wholly support. I have seen a list of amendments foreshadowed by the Attorney-General. Although I have not gone through them in detail I have noted them and I will listen with interest to the minister's explanation of the amendments.

The DEPUTY SPEAKER: Would you like to seek leave to continue your remarks?

Ms CHAPMAN: Yes.

Leave granted; debate adjourned.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT