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House of Assembly - Fifty-Third Parliament, First Session (53-1)
2014-12-03 Daily Xml
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Social Development Committee: Recidivist Young Offenders and Youth Parole Board Act Review

Ms HILDYARD (Reynell) (11:39): I move:

That the final report of the committee, on the review of the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act 2009, be noted.

The Social Development Committee commenced this inquiry in August 2014. We received seven submissions and the South Australia Police presented verbal evidence. Hearings concluded on 13 October 2014.

In part 5 of the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act 2009, there is a requirement that the Social Development Committee, in consultation with the Attorney-General, inquire into and report on the operation of the act and on any effect the operation of the act has had on the criminal justice system in South Australia.

In 2003, amendments were made to the Criminal Law (Sentencing) Act to provide South Australian courts with the discretionary powers to declare an adult offender to be a serious repeat offender. The introduction of the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act allows for this same principle and provides South Australian courts with the discretionary power to declare a young offender a recidivist young offender.

The act came into operation on 27 June 2010. It was initiated as a response to perceived community concern about the harm done by young offenders who engage in repeat offending of a serious nature, to consider community safety in sentencing and to allow young offenders to be tried as adults where a pattern of serious repeat offending was alleged to have occurred. It was intended to apply to just a very small group of particularly serious repeat young offenders who sadly and unfortunately seem to not have learned from previous experience within the youth criminal justice system. The act made amendments to both the Criminal Law (Sentencing) Act and the Young Offenders Act. The key changes to the Criminal Law (Sentencing) Act are:

a provision to declare a young person a recidivist young offender;

a provision for judicial discretion to make such a declaration;

that the court not be bound by the rule of proportional sentencing; and

for a nonparole period that is handed down to be at least four-fifths of the sentencing period and not at least two thirds as it is under the provisions in the Young Offenders Act.

The key changes to the Young Offenders Act are:

a provision to establish a victims' register;

a provision to keep a record of an informal caution, a provision that did not previously exist;

a provision to impose a custodial sentence where there has been a declaration of a recidivist young offender; and

a provision for the review board to be reconstituted as the Youth Parole Board.

During the four years of operation of the act, six offenders were eligible to be declared recidivist young offenders. Of these, four were brought before the Youth Court and, of these, three have been declared recidivist young offenders.

A number of submissions the committee received proposed that, given the small number of declarations, the operation of the act and its effect on the criminal justice system here in South Australia has been minimal because the legislation mirrors provisions that were already addressed in existing legislation.

Under pre-existing legislation, the Youth Court has jurisdiction to sentence young offenders to a term of incarceration up to a maximum of three years. All three of the young people who have been declared recidivist young offenders were sentenced to terms of incarceration well within the three-year maximum period. This may indicate that the introduction of the amendments has not meaningfully impacted upon substantive sentences imposed upon serious repeat offenders.

The committee heard from the South Australia Police that judicial discretion is a significant hurdle for declarations under the Criminal Law (Sentencing) Act. They hold the view that any young offender who satisfies the criteria under the act should automatically be declared to be a recidivist young offender. They propose that judicial discretion, as opposed to a mandated requirement, presents a significant hurdle.

The provision in the amendment act to increase sentencing periods for young people is based upon the notion of providing increased community safety, the premise being that while a young person is incarcerated they are not able to commit any further crime. It is not clear that current evidence-based research supports that view.

Some evidence presented to the committee suggested that introducing explicit measures to declare a young person a recidivist young offender, imposing longer sentences and imposing longer periods of incarceration by extending the period of time they are eligible for conditional release may be counterproductive measures.

Young people who spend longer periods in detention may become more entrenched in offending and find community integration increasingly challenging. Further, it is unclear if evidence-based research supports the view that more punitive measures for young people who offend will increase community safety or help them. Regardless, provisions already existed under section 16 of the Young Offenders Act for the Director of Public Prosecutions to bypass the Youth Court and lay a charge against a young person in the adult jurisdiction if the charge was a major indictable offence or if there was an appreciable risk to the safety of the community.

The object of the Young Offenders Act is to secure care, support, correction and guidance for young people who commit offences. Clearly, this must be balanced against the need for them to understand their obligations under the law and to protect our community against violent or wrongful acts. Insofar as the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act was aimed at personal deterrents of serious repeat offenders and protecting the public, the committee heard that those provisions appear to have been available in existing legislation.

Whilst the provisions in the act strengthen the requirement for consideration of community safety, they are silent on how a stronger emphasis for rehabilitation might be achieved. As mentioned, in the four years since the introduction of the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act there have only been three declarations of young people as recidivist young offenders. All three were sentenced to terms of detention well within the three-year maximum prescribed in pre-existing legislation; therefore, the recidivist young offenders legislation has not significantly impacted upon substantive sentences imposed upon serious repeat offenders to date.

Based on the evidence presented during the course of its deliberations, the committee considered that the operation of the act, which was intended to be directed at a small number of young offenders who have, sadly, refused to learn from experience, has been minimal to date and its effect on the South Australian criminal justice system has also been minimal. Given this conclusion, the committee recommends a further review be conducted three years from now.

In closing, I acknowledge the valuable contribution of the individuals and organisations who gave up their time to come forward and give information. We thank all those who presented evidence to this inquiry either in writing or through appearing before the committee. I also take this opportunity to thank members from the other place who provided valuable input into the inquiry: Presiding Member, the Hon. Gerry Kandelaars, and the Hon. Kelly Vincent and the Hon. Jing Lee. From this chamber I thank Ms Dana Wortley (member for Torrens) and Mr Adrian Pederick (member for Hammond). I also acknowledge the work of the committee secretariat, Ms Robyn Schutte (committee secretary) and Ms Carmel O'Connell (research officer), who provide outstanding and invaluable support around this inquiry and the ongoing work of the committee.

Mr PEDERICK (Hammond) (11:48): I rise to speak to the motion that the report of the Social Development Committee, entitled Review of the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act 2009, be noted. The committee commenced this inquiry in August and we received a total of seven submissions, with SAPOL presenting verbal evidence. Hearings were concluded on 13 October 2014.

Amendments were made in 2003 to the Criminal Law (Sentencing) Act to provide South Australian courts with the discretionary powers to declare an adult offender to be a serious repeat offender. The introduction of the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act allows for the same principle and provides South Australian courts with the discretionary power to declare a young offender to be a recidivist young offender.

This act came into operation on 27 June 2010. It was initiated as a response to community concern about the harm done by young offenders who engage in repeat offending of a serious nature and also to allow young offenders to be tried as adults where a pattern of serious repeat offending was alleged to have occurred. The act made amendments to both the Criminal Law (Sentencing) Act and the Young Offenders Act. The key changes to the Criminal Law (Sentencing) Act are:

a provision to declare a young person a recidivist young offender;

a provision for judicial discretion to make such a declaration;

that the court is not bound by the rule of proportional sentencing; and

a nonparole period that is handed down must be at least four-fifths of the sentencing period and not at least two-thirds, as it is under the provisions in the Young Offenders Act.

The key changes to the Young Offenders Act are:

a provision to establish a victims' register;

a provision to keep a record of an informal caution, a provision that did not previously exist;

a provision to impose a custodial sentence where there has been a declaration of a recidivist young offender; and

a provision for the review board to be reconstituted as the Youth Parole Board.

During the operation of the act, six offenders were brought before the Youth Court, and of these three have been declared 'a recidivist young offender'. It is to be noted that in submissions presented to the committee the operation of the act and its effect on the criminal justice system in South Australia have been minimal because the legislation does mirror some provisions that were already addressed in existing legislation.

The committee also noted from a submission and from hearing from the South Australian police that the judicial discretion is a significant hurdle for declarations under the Criminal Law Sentencing Act, and they did propose that judicial discretion, as opposed to a mandated requirement, presents a significant hurdle for young offenders to be declared a recidivist young offender.

Some evidence presented to the committee suggested that introducing explicit measures to declare a young person a recidivist young offender, and imposing longer sentences and longer periods of incarceration by extending the period of time they are eligible for conditional release, may be a counterproductive measure. It is uncertain if evidence-based research supports the view that more punitive measures for young people who offend will increase community safety, but I add that there are many different views on that in the community.

The object of the Young Offenders Act is to secure care, correction and guidance for young people who commit offences, and this needs to be balanced with their need to understand their obligations under the law and that communities should be protected against violent or wrongful acts. There have only been three declarations of young people as a recidivist young offender, and it shows that the recidivist young offenders legislation has not significantly impacted upon substantive sentences imposed upon serious repeat offenders to date.

The committee considered that the operation of the act, which is intended to be directed to a small number of young offenders who refuse to learn from experience, has been minimal to date, and its effect on the South Australian criminal justice system has been minimal, based on evidence presented. Given this conclusion, the committee has recommended that a further review be conducted in three years from now.

Some statistics were presented in an appendix in relation to a study involving the act and looking at cases finalised in South Australia since 27 June 2010. The study was completed in January 2013, and the appendix states:

Between 27 June 2010 and 31 December 2011 there were 96 individuals who were convicted of a total of 177 juvenile offences that were 'serious offences'. A total of 42 individuals who were convicted of a serious offence were sentenced to imprisonment. However, only 6 of these individuals fulfilled the two sets of criteria of 'recidivist young offender' of having been convicted and imprisoned twice previously for a serious offence.

Since the act commenced in 2009, there have only been six young offenders as at 31 December 2011 who were eligible to be declared a recidivist young offender.

In conclusion, I would like to thank members on the committee: from this place, Ms Dana Wortley (member for Torrens) and Ms Katrine Hildyard (member for Reynell); and from the other place, Hon. Jing Lee; Hon. Kelly Vincent; and the presiding member, Hon. Gerry Kandelaars. I would like to acknowledge the work of committee secretary Robyn Schutte and research officer Carmel O'Connell.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:55): I rise to speak on the report that has been provided to us from the Social Development Committee in respect of the recidivist young offenders legislation that passed in this house back in 2009 and came into effect, conveniently, three months after the 2010 election. The previous attorney-general was the mover of this legislation. We said at the time, 'This is not necessary, it will not work, and it is contrary to the UN convention in respect of children's rights; it is contrary to all academics of any note in respect of the appropriate sentencing rules regarding children, and it will not work,' and we were right. This report vindicates it.

I want to say a number of things about this report. This review in the legislation was required to be done within three years since the operation. That means it was supposed to be done by mid-2013, not six or eight months after the 2014 election. This should have been done in 2013 and I give notice to the house that I will be calling for the Social Development Committee, in its own recommendation, to review it in another three years to make sure that they do what they are asked to do under the legislation and that they do review this legislation. If the current Attorney-General is tardy in getting his submission in as part of that review, then let us know here in the parliament.

This is not acceptable. We have an election in March 2018 and I expect—and every member in this house should expect—that this report and the next review in respect of this useless piece of legislation will come back at least before the state election. Attorney-General Rau, who put a submission in to this committee, admitted in his own submission within this report that it is of little value. We raised the question at the time that it will probably end up that these three people, who have been declared recidivists and who have not got one jot of extra sentence in the course of this process, will treat it as a badge of honour.

Everyone lining up, including Senior Judge McEwen, the Attorney-General, and others who gave evidence to this committee, indicated that it is of little or no value and that the current law is perfectly adequate to deal with this. The then attorney-general Atkinson's great, hard, tough on law and order stance of, 'We'll treat children in the same harsh way; everyone over 10 who is in a recidivist capacity we will treat in the same way as we have adults,' turned out to be a nonsense. This report is a vindication that it is a nonsense. The Attorney-General should be coming into this house and applying to repeal that legislation, not just review it again in another three years.

It was a shameful act of this government to keep this information hidden before the last state election, and I implore the Social Development Committee to make sure that they do not have the wool pulled over their eyes again, and that we make sure we get the next report before the next election.

Ms HILDYARD (Reynell) (11:58): I just want to say thank you very much to the member for Hammond for his comments, and to all members of the committee.

Motion carried.

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