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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2017-10-31 Daily Xml
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Child Sexual Exploitation Offences

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (15:44): I just want to say a few words to the parliament apropos some correspondence that was floating around last week. It has come to my attention that there was a letter prepared by the Bar Association of South Australia expressing views about the urgent changes that the parliament considered recently to the offence of persistent sexual exploitation of a child. Of course, you would recall that the need for the parliament to consider those matters was precipitated by the decision of the High Court in Chiro. Those changes were passed on 19 October.

The opening premise of the letter was that the bill was 'a knee-jerk response to defects in legislation which is arguably flawed to begin with'. They do not say why they think the legislation was flawed to begin with but, based on the rest of the letter, it can be assumed that they simply do not like the type of offence which will permit sexual offending against children to be prosecuted. They said that Chiro was a case about the unfair and lazy use of section 50 by the prosecution and that the charge itself was only intended to be a charge of last resort and primarily directed to young children who could not particularise the offending in the usual way.

I would just like to point out that the offence has no such limitation. There is nothing improper or lazy about a prosecutor proceeding on a perfectly legitimate charge designed to hold those who sexually abuse our children to account. To suggest that a prosecutor proceeding as such has been lazy and unfair is, quite frankly, offensive, and it is offensive both to the director and all his staff. This is, quite frankly, unfounded and outrageous, in my view.

It is true that the previous version of the offence was originally introduced in order to overcome problems with children being unable to particularise offending. This is not and cannot be said to have ever been intended to be limited to 'very young children'. Indeed, the then Liberal Party deputy premier, the Hon. Stephen Baker, in this second reading introducing the first South Australian version of the offence back in 1994, in response to the High Court decision in S v The Queen, stated:

The decision of the High Court poses great difficulty in charging defendants where the allegations involve a long period of multiple offending. In some cases, like S, the child—or the adult recalling events which took place when he or she was a child—cannot specify particular dates or occasions when the offence is alleged to have taken place. The result is that defendants are being acquitted even where juries clearly indicate that they accept the evidence that abuse took place at some time.

It is now accepted that very young children may not have a good understanding of dates, times and locations or the ability to describe how events relate to each other across time, and thus face difficulties particularising offences in the usual way. However, it is also the case that sexual abuse of children often happens repeatedly and in similar circumstances such that the complainant is unable to describe specific or distinct occasions of abuse. This is often the case for historical cases, where an older child or an adult may be recounting abuse that took place many years earlier.

The Royal Commission into Institutional Responses to Child Sexual Abuse has recently endorsed this position. Further, the offence as it stood until last week permitted the charge of persistent exploitation of a child to be charged in the alternative to particularised offences on the same information; that is, the prosecution could charge both particularised offences and the charge of persistent sexual exploitation of a child covering the same period; however, the accused obviously could not be convicted of both. Thus it was contemplated that the offence could be charged in the alternative even where the particulars of a specific offence had been provided. It was not a last resort only for young children.

Finally, it is the case, as the Bar Association knows, that offenders can only be sentenced for the individual acts for which they are found guilty. When individual offences are charged as representative counts over longer courses of conduct, the offender is still only to be sentenced for the offences charged on the information. The uncharged acts, which may be extensive, are only able to be taken into account to prevent the offender seeking to mitigate the overall penalty on the basis that the charged offences were out of character or isolated.

Why, in a matter involving, for example, in excess of 30 instances of abuse, should prosecutors be forced to choose two charges that can be particularised well against a background of a significant number that cannot be? Why can we not use a charge that allows all 30 charges to be considered and taken into account on sentencing? It is completely consistent with previous longstanding law and the royal commission recommendations.

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