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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Bills

Sentencing Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 November 2016.)

Mr BELL: I draw the Deputy Speaker's attention to the state of the house.

A quorum having been formed:

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:40): I indicate that I am speaking on the Sentencing Bill 2016 and that I will be the lead speaker, and quite possibly the only speaker, and that I wish to make some remarks about this bill. I indicate that the opposition will be supporting the bill, other than amendments in respect of the proposals in relation to home detention.

Let me say that the bill was introduced by the Attorney-General on 16 November last year. It completely repeals the Criminal Law (Sentencing) Act 1988 and sets out a new regime for the sentencing of offenders in the criminal justice system. New options for sentencing discounts and home detention changes are included. In fairness, the bill is the result of considerable work done by former judge of the Supreme Court, John Sulan. His Honour was appointed in December the year before to undertake a review, look at the preparation of a new sentencing act and generally advise the government on where there needed to be some contemporary updating and also consider how it might best operate.

On 2 December, I attended a forum hosted by the Attorney-General at which John Sulan was present. He was most helpful in advising us that, in his opinion—and that is to be valued given his extensive experience on the Supreme Court—there needed to be a whole rewriting of the act. There were some concerns raised about the limiting of the discretion of judges in general commentary and other matters on this issue.

In the previous June, the government committed to investigating how we might better deal with sentencing. A discussion paper was issued and, with that, a home detention bill and a first principles bill, which were distributed for some limited consultation. The Statutes Amendment (Home Detention) Bill 2015 provided for home detention as a stand-alone sentence. Further minor changes, which we will now incorporate separately, or which we propose to, needed to be considered.

It is fair to say that during the public debate on this matter arising out of some fairly controversial cases, which reached a crescendo in the latter part of last year, there had been significant public disquiet about the application of the current home detention, particularly in circumstances where offenders had been given the opportunity to have home detention as part of their sentencing, or as their sentencing.

There were questions about the exploitation of that. These covered notorious cases of a person removing their bracelet, an electronic apparatus designed to track the detainee, usually from their place of residence. In particular, it identifies whether they were in breach of obligations in respect of their home detention, restrictions on where they go, when they leave the property, etc. Other controversial cases dealt with what type of remunerative employment was being presented for consideration of home detention, including leisure activity, employment and sport.

Before I come back to this more controversial area of home detention, I would like to mention a few areas of reform in this bill which we support and which we think need to be accommodated in contemporary laws in this area. Firstly, the bill makes protection of the safety of the community a primary consideration. All other matters are identified as secondary considerations. It is currently a factor, but it has been given prominence as a primary consideration. Secondly, it introduces a new way to provide compensation to victims of dishonesty offences. Presently, criminal offenders can be ordered to provide compensation.

The property of the convicted offender can only be seized if it is the proceeds of a crime or unexplained wealth. Any assets can be seized for drug dealers; this is an expansion. It is fair to say that it is a bit controversial, but that is a matter which is incorporated. Thirdly, it introduces community-based orders and also intensive correction orders. These regimes, firstly in respect of community-based orders, are designed to replace the good behaviour bonds and community service orders. They can be conditional and include social obligations, such as undertaking education and treatment programs. Privileges can be denied through curfews, drug and alcohol testing, restricting contact with others and restricting movement.

Perhaps some would say that is really just a matter of form and not any change of substance to that area, but nevertheless we have always accepted that this area is an important option for sentencing. The new option of intensive correction orders will apply to a person sentenced to imprisonment for less than two years. The offender is sent home and subject to intensive supervision by a non-government sector and community-based rehabilitation. The offender may be required to pay the cost of any treatment or rehabilitation during that time. It is designed to apply to adult offenders.

Again, at first blush the proposal has merit on inquiry with interstate operators, including the judiciary in Victoria, where this option has been offered for some time. It appears to be little used, and that is largely because we have such a shortage of people available to provide supervision. Generally, providing this more intensive regime is near impossible and so it has been rarely applied. Nevertheless, we do not disagree with it being in there as an option and, if there is some capacity for the minister for corrections/law and order budgets to be expanded to provide for that, I suspect there will be some good use of it.

The fourth area is to introduce new sentence discounting guidelines that match the new time lines for the disclosure of evidentiary material in the Summary Procedure (Indictable Offences) Amendment Bill, which we have just dealt with in this house and which is on its way to another place for consideration.

The government has indicated that sentencing discount clauses will not be progressed if the indictable offences bill does not succeed. That is hardly surprising, as they are referred to in both bills. We have not expressed a disagreement with the change in the sentencing discount clauses, but I previously commented in the debate on the previous bill that reviewing the sentencing discount clauses is probably premature and that the reforms that we made in the last few years ought to have some time for consideration.

I note the Attorney advised the parliament that those previous initiatives have been the subject of review—I think he even suggested for the 2½ years that they have been operating. In fact, they only reviewed the first 12 months, and commentary was made in that report on the short time that new regime had oxygen and that therefore, whilst there were some signs of benefit, it needed some further time for review. In my view, in the absence of further information being brought forward, they ought to be given an opportunity to deliver.

Furthermore, I made a comment that in my view the appointment of the new head of the District Court, who carries a massive workload in relation to criminal matters, ought to have the opportunity to progress other initiatives before we start tampering with the sentencing discount clauses. Nevertheless, the government are insisting on progressing that at this stage.

The second aspect of this sentencing discount is that the reform does not vary the principles of sentencing discounts for assisting the court and pleading early; however, the maximum discount available reduces more quickly than the previous time frame. A new clause is added to provide a 10 per cent discount for an accused who has already pleaded guilty but who assists the court throughout the trial. So, there is some new novelty added to that and we will see whether it helps.

The fifth area of reform is covered by the provisions for home detention. According to the government, these new provisions state the purpose of home detention. The new provisions for court consideration are the length of time of the proposed sentence, a new provision noting that the court must consider if the home detention would affect public confidence in the administration of justice and a new provision making it a condition that the defendant be monitored by an electronic monitor at all times.

Secondly in this area, the provisions allow that the home detention officer can determine what appropriate remunerative employment is and at what times it is to occur. There is no specific definition provided. However, the bill we have in the parliament—as distinct from the previous draft proposals—sets out that remunerative employment (being one of four areas for which home detention may apply to have release from home incarceration) is qualified. In particular, the terms and conditions of remunerative employment are to be set by the home detention officer. The government consulted quite widely in this area. That was a fairly effective process under the helpful stewardship of John Sulan, in that it gave everyone an opportunity to put in a comprehensive submission, if they wished to.

The weakness, we would suggest, is in home detention. Over the last few months I have repeatedly sought that there be some restriction placed, or at least prescription inserted, in respect of the circumstances in which the relaxation of the home detention should occur, namely, allowing people to leave the property. Unfortunately, that appears to have fallen on deaf ears. Accordingly, I foreshadow that an amendment will be tabled and progressed; I think it has already been tabled. The gist of it is to make some provision in the bill to say that the approval for a person who is subject to home detention to leave a residence for any purpose must be on the basis that the aggregate period of absence has to be less than 12 hours in a 24-hour period.

The second qualification, which I think is certainly common sense, is that participation by a person subject to a home detention order in a sporting activity for which they might receive a payment may not be approved for the purposes of remunerative employment. Some would say, what about a highly paid AFL footballer who has as his employment very significant remuneration? If they are the subject of a home detention order, they might miss out—and yes, they may.

That is a consequence of that amendment, and from our side of the house we see this as necessary to ensure that there is not exploitation of this opportunity to have a punishment which is laced with the opportunity to still undertake employment or have medical treatment or many other reasons, as I said, to leave the property. It should be treated as a privilege and not as something that is to be some optional home holiday. We, on this side of the house, otherwise recognise the importance of updating the sentencing law generally and accordingly, subject to those amendments, we will be supporting the bill.

I add one other matter, and that is that it seems rather curious that I pick up a schedule of CPD proposed forums for the forthcoming months and on 12 April there is to be a CPD event entitled 'The Sentencing Bill 2016 SA'. I raise this because it is either a very late opportunity to consult on the bill or it assumes that it will actually be an act by then and that there will be some briefing to the profession about how it is going to operate.

Of course, it is important that when legislation passes, once it is an act or indeed a promulgated regulation which is allowed to survive, it does avail itself of the appropriate advisers to inform the legal profession and the public generally. We have no issue about that whatsoever. It is a rather curious presentation as a bill. If it is to presume, on the other hand, that it will be an act by then, I see it as quite disorderly and quite inappropriate for the government to make those arrangements, publish them even, before we have even canvassed the bill in the parliament.

In the regime that will operate, the government also suggests that the eligibility for a home detention order will be denied if the adult offender has a non-parole period of two years or more for prescribed designated offences, for serious and organised crime offences and for specified offences against the police. Those incorporations do two things. Firstly, they incorporate the thrust of the legislation currently sponsored by the member for Stuart, who has a private member's bill before the house to cover the proposed exclusion of home detention for people who are convicted of various serious crimes such as murder, terrorism and serious sexual offences.

The Attorney has acknowledged that that is being incorporated, and we appreciate that, especially as this bill has been sitting there since November last year. Prior to that (I think in 2015), a bill presented by the member for Morialta in similar terms was again ignored by the government, and unfortunately it has taken a very long time for it to be accommodated; nevertheless, we note it and we appreciate it.

The second matter I point out in respect of home detention orders if the bill had already been dealt with is the recent conviction of Tabitha Lean, when she was sentenced to a prison term with the opportunity to serve in home detention a period of six years and eight months from memory (I am looking quickly at the sentencing remarks). In any event, she had a 3½ year non-parole period. This is an offence of which she was convicted. It was an extraordinary case where she and her partner orchestrated to fraudulently, and through deceptive means—sending threatening letters and bloodstained T-shirts, and it all sorts of other macabre aspects to it—attract the authorities to give her free hotel accommodation and have the benefit of very significant moneys to protect her and her family during that period.

I think the amount was $270,000 for a serviced apartment and significant other moneys to pay for holidays to minimise the stress to this family, who on the face of it, were the victims of horrible death threats and the like. The partner, in crime in this instance, was sentenced to imprisonment and not given any home detention. It is fair to say, on viewing the sentencing remarks, that His Honour took into account that she had three children to care for and that that was a persuasive matter to enable her to stay out of gaol. She had an important and respected role in her Aboriginal community and she had employment in the Public Service.

These are all matters which, not unreasonably, are taken into account, but it seems that here we have a situation of the government saying, 'If you get more than a two-year non-parole period for certain offences you shouldn't be able to be eligible for home detention.' I believe—and I think the Attorney agrees, at least on this point—that there needs to be a level of discretion in most cases to allow the sentencing judges to access tools in the toolbox. This is one of them, to take into account the specific circumstances of the person convicted and accommodate that.

I am concerned that we have a situation now where, with the two-year non-parole period, which is to deal with only prescribed designated offences, this would not be captured. If it is, then why was this bill not progressed earlier? Why did we not deal with it here in the parliament two weeks ago when it was listed? Why was it simply removed from the list as a priority bill, and identified by the government as a priority bill, in that week's business and not dealt with?

If the government were seriously concerned about the importance of reforming sentencing law, which, in itself, would not attract immediate attention or priority, but, on the other hand, were serious about dealing with home detention and tidying that up, then why did we not progress that bill in the last session? Surely we then would have had some opportunity to deal with these continuing cases where there is public outcry about the accessibility to an opportunity to have home detention, either with or without adequate restriction, including at least the consideration of the amendments that we present.

Flexibility is one thing, but very serious offending should exclude a person from having access to this option. It is now going to be incorporated in this bill, and we welcome that, but the government cannot have it both ways. It has to either progress this and deal with it, which we have been begging them to do for some time, or at the very least accept the proposed amendments we will present to try to ensure that we have a fair compromise in respect of the home detention option surviving—and, in fact, being available and being utilised—while at the same time balancing the areas of concern that have been raised not just by us but by members of the public.

The final thing I want to say about this bill is that the recent public commentary about home detention, and the circumstances of its application about which a number of commentators have expressed disquiet, raises another ever pressing issue. We have a prison resource in this state that is burgeoning. We have something like, I think, 2,996 people in prison. Obviously that changes daily, some go out and more go in, but we have 3,000-odd people incarcerated.

There are two things I want to say about that. The first is that that obviously puts pressure on corrections officers to let people out, so that a person court-sentenced for imprisonment can come in the other door. Secondly, even with the opportunity to use court facilities, police cells, it is still full. There was a recent announcement that two of our prison cells would not be available—from memory one was at Port Adelaide, but I cannot remember now where the other one was—because the two areas were going to be renovated. Sure, we accept that we have to have these upgrades from time to time; however, they provided 20 or 30 extra capacity to be able to take up some of the shortfall.

They are unavailable for the next few months, so there is a very clear, pressing need to deal with the overcrowding in prisons. We see, almost on a daily basis, concerns raised by the correctional services officers' union themselves or riots or people who do not appear, on the face of it, to be apprehended when they should be. I am speaking about people who break out. We had a very sad case some months ago when a woman who was on work leave left her post, absconded and, two weeks later, was found dead. I find the whole circumstance of this crisis situation in the prisons to be totally unacceptable.

The second aspect I will raise about it is even more concerning. Because we have such inadequate court operations at the moment in respect of progressing cases through the system, and we have a huge backlog of cases, we now have a cohort of 25 to 30 per cent of prisoners at any one time who have not even been convicted of anything. These are people who are on remand, awaiting determination by the court process.

So, we have our prison population sandwiched between the walls of prisons in South Australia with a multiple number of people who really should be there only for short periods of three or four months before their case is heard. They are sometimes there for a much longer period, and they are clogging up the beds. If you ever want to talk about bed stoppers, it is in this capacity. Secondly, there is a demand by us here as a parliament, let alone the government, to ensure that there be this ranking up of prison terms that are to apply for offences. These terms are not just mandatory in some circumstances but are ever-increasing in their period of operation.

We have a very serious problem. It is alarming to read today in the paper that a person who is in prison received a $100,000 compensation settlement for an apparent failing of the Correctional Services community to employ sufficient access to the management of that prisoner's diabetes health issue. There is a lot of commentary about whether he should have got his $100,000 or whether the victim should get it and so on, and I think they are important matters, but for the purpose of this exercise I want to say that not only do we have prisoners crammed in there but we also have, in my view, totally inadequate rehabilitation programs in the prison.

Today's exposure highlights to me that there is clearly a problem in being able to ensure that adequate services are given for the medical, psychological and even dental treatment of prisoners. As has been clearly said many times, if you are in the custody of the state, whether you are in a prison or under the guardianship of a minister as a child, there is an obligation, a duty of care, to those persons to ensure that they are cared for to the extent of their medical needs, in particular.

I do not know the detail of whether this person should have been given a different diet or whether it enhanced his diabetes problem, or whether it has left him with some residual health problem that he should not have had, but a $100,000 settlement suggests that there is some acknowledgement, on the advice of the Crown Solicitor's Office, that there had been some dereliction of duty in the supervision and restraint of that prisoner, or more particularly a lack of service that was given to him while he was there.

I have raised a number of questions about what should be happening in prisons. I am not going to go through all those today, but I will remind the house of one, and that is that we are one of the few states in Australia that does not make any provision for women prisoners to keep their newborn children with them while they are in prison, to have care of those children for up to two years. In some jurisdictions they get to enjoy that for longer.

We have had that provision in this state before. With the crushing number of prisoners we have in our prisons, it does not surprise me that it is not available at present, but it should be. These are basic rights to ensure that we do not create another generation of problems by—

Members interjecting:

The DEPUTY SPEAKER: Order!

Ms CHAPMAN: —effectively requiring those newborn babies to be placed in the care of others. I make no criticism of others, particularly if they are in their immediate family, but I make the point that there is a lack of opportunity, sometimes for months and sometimes for years, for that mother to acquaint herself with her child.

The second matter, which I again raise because it infuriates me, is the inadequate number of forensic beds available for mental health patients, who are therefore required to be sent to prisons. Again, they are taking up a prison bed when they should be appropriately accommodated in James Nash House or such other facility that can give them the psychiatric care that they need. With those qualifications, I indicate our support of the bill.

Ms COOK (Fisher) (16:16): I rise to speak in support of the Sentencing Bill 2016, which represents a significant reform in the government's sentencing policy. This bill does a number of things: it legislates to adapt the early guilty plea discount regime to the new summary procedure bill that is being debated by parliament; it also expands the number of sentencing options that are available to the courts.

Courts having various sentencing options available to them is an important reform, as it allows the courts to tailor sentencing options to certain offenders to give them the best opportunity to rehabilitate and become contributing members of society. There is one other reform, however, that I want to highlight in my speech, and that is that the bill makes public safety the paramount consideration of the courts in sentencing of offenders.

Under this bill, the consideration of public safety takes precedence over any other sentencing consideration. What this means is that violent and sexual offenders who represent significant concern to public safety can expect to receive custodial sentences. Offenders who commit nonviolent and non-sexual offences, however, will be able to be managed through a wider palette of sentencing options.

For example, this may include someone who is convicted of driving unregistered or without a licence. Although, yes, they have committed a crime, it is not necessarily good public policy to lock them away in a prison if the driving offence is their only offence. In fact, there is good evidence to suggest that their life outcomes will be negatively impacted by such an incarceration. They can be better managed through and alternative to custody. This does not compromise public safety.

This government has always placed public safety as a high priority in the sentencing of offenders and this is evident through various recent sentencing reforms. Section 23 of the current sentencing legislation allows for the indefinite detention of sexual offenders who are unwilling and unable to control their sexual instincts. Under this provision, paramount consideration for the courts is the safety of the community.

The government recently established a regime of extended supervision of particularly dangerous offenders. Under this regime, particularly violent and sexual offenders who are coming towards the end of their sentence but may still require supervision can be accordingly supervised under a high-risk offender order. This means that, although the head sentence has expired, the Department for Correctional Services is able to manage the offender within the community so that they are given the best opportunity to successfully reintegrate into the community. This is more evidence of using evidence-based practice in terms of rehabilitation of offenders.

When the court is considering whether a person should be subject to a high-risk offender order, the paramount consideration of the courts is community safety. In the home detention sentencing reforms that were recently passed by the parliament and are being refined in this bill, again, the paramount consideration for the courts is community safety. I feel it is important to outline the public safety element that has been present in all the recent government reforms to this sentencing regime. The bill represents a culmination of that principle—community safety is paramount. I commend the bill to the house.

The Hon. A. PICCOLO (Light) (16:19): I rise to speak in support of the Sentencing Bill 2016. It increases sentencing options for the courts, and I believe this is a good thing and should be embraced in a modern justice system. As a former minister for correctional services, this is a topic I am most passionate about.

In this debate, I wish to highlight some of the unfortunately misleading information put out in the public domain in a media release by the deputy leader of the Liberal Party recently. The growing furore about the use of home detention, which has been encouraged by the deputy leader, was unfortunately the result of some sensationalist statements made in the media that were often misleading, contributing to a false understanding of how the home detention system operates.

Notwithstanding this, the government included significant restrictions regarding home detention when it introduced the Sentencing Bill 2016. They include:

a home detention order may not be made if it would lead to a lack of public confidence in the administration of justice, which is very important and about making sure that justice is not only done but also seen to be done in the view of the community;

restrictions on the availability of home detention as a sentencing option in circumstances mirroring the existing provisions that restrict the availability of a suspended sentence;

the introduction of the condition of mandatory electronic monitoring, which can only be varied for medical reasons;

clarification that attendance at remunerated employment or educational training is conditional on approval by the home detention officer to whom the person is assigned; and

making it clear that a sentence served as a home detention is to be treated as a custodial sentence.

The government has also filed amendments to deal with murderers, terrorist offenders and sexual offenders, setting out that these offenders will be ineligible for home detention. In her release, the deputy leader states, as follows:

Allowing prisoners on home detention to work any time they like and giving them unrestricted access to community sport makes a mockery of the punishment they are receiving for breaking the law.

This seems to be consistent with some of the comments I heard in this chamber recently. I want to make it clear that prisoners subject to home detention have never been permitted to work any time they like, nor have they been given unrestricted access to community sport. Statements such as these have misled the public, creating unnecessary stress and angst, and they are the very type of statements that have created the public furore.

All prisoners subject to a home detention order are placed on a permanent curfew by the Department for Correctional Services. This means they are not permitted to leave their residence at all, except as permitted by their home detention officer. The existing process surrounding permission to attend employment is, as follows:

In the case of a paid employment, the proposed or existing employment must be first approved by the home detention officer.

The approval process involves consideration of factors specific to the prisoner (including the offence for which they are or will be serving the sentence), as well as the nature of the employment and any particular risks to the community.

Employment is a significant predictor of success and reduced reoffending rates, thus prisoners are encouraged to seek work.

However, the safety of the community is of paramount consideration when making an assessment about the suitability of work for offenders.

In the case of a person who has been ordered to serve their sentence on home detention by a court, the suitability of any existing employment held by the prisoner would be assessed as part of the process of assessing the suitability of the prisoner for home detention generally and any concerns would be noted in the report prepared for the court.

If the employment is approved, the prisoner is still required to seek permission from their home detention officer to be given an approved pass out to allow them to attend that employment.

It is not the case—and I stress, it is not the case—that prisoners are permitted to leave their premises, even to attend paid employment, without prior approval by their allocated home detention officer.

The timing of approved pass outs to attend employment depends on their work requirements or shifts that have been approved, and to take into account approved travelling time to and from work.

In some cases, prisoners may have to take a prearranged travel route and may not deviate from it. It is made very clear that the prisoner continues to be detained in their residence, except as absolutely necessary to enable them to attend work. For example, a prisoner would not be permitted to make stops on the way to and from work. They would not be able to stop off and buy a carton of milk on the way home. Even this would need to be pre-approved by the home detention officer.

The deputy leader goes on to state:

There needs to be far greater guidance as to who should be eligible for home detention and what is and isn't appropriate regarding activities outside the home.

In late December 2016, the Court of Criminal Appeal delivered two judgements: R v Filipponi and R v Dell. They set out appropriate guidance to sentencing courts on how to apply the provisions providing for home detention as a sentencing option. The court noted that the provisions already require the safety of the community to be of paramount consideration. I stress: the court noted that the provisions already require the safety of the community to be of paramount consideration in determining whether to make a home detention order.

The court points out that the safety of the community is not only threatened by violence but it is also threatened by, for example, the distribution of illicit drugs. The court makes it clear that a sentencing court will need to be astute to make sure that, even where making a home detention order will assist in the rehabilitation of a defendant and provide sufficient personal deterrents, the achievement of the objectives of punishment and general deterrence are not undermined. I stress: the achievement of the objectives of punishment and general deterrence are not undermined. Again, this is a clear indication to the courts. They state:

The ultimate sentence imposed must always be appropriate having regard to the criminality of the conduct involved, and the Court's concern to achieve a level of punishment and general deterrence. The greater the weight to be attached to these objectives in an individual case, the less likely it will be appropriate that there be an order for home detention.

The Court of Criminal Appeal has made it very clear that there are strict rules on how this sentencing of home detention is to be applied. In the judgement, it went on to say:

It is notable that the legislature has not chosen to circumscribe the courts' discretion by proscribing a home detention order in respect of any particular category of offence, or in respect of sentences of imprisonment beyond a particular period of length. However, this does not mean that home detention orders will not generally be inappropriate in respect of many types of offences, and in respect of defendants the subject of lengthy terms of imprisonment. To the contrary, there will be many cases in which the nature of the offending is such that the need to ensure achievement of the broader objectives of sentencing will for practical purposes foreclose any exercise of the discretion in favour of home detention.

The Court of Criminal Appeal has now given appropriate guidance as to who should be eligible for home detention. The purposes for which a person is permitted to leave their home are appropriately restricted already but provide some flexibility to home detention officers experienced in managing home detainees. The misinformation being encouraged by the deputy leader is unfortunately very unhelpful in properly informing the public about the utility of alternative sentencing options.

The government and I are supportive of custodial sentences for violent offenders, sexual offenders and others who pose a serious risk to the safety of the community. I am also in support of alternative means of custody for those offenders who do not pose such a safety risk; I said so when I was minister for correctional services, and I say so today. I wish to highlight to the house that this bill places protection of the community as the number one overriding principle of sentencing. I commend the bill to the house.

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) (16:28): I thank everybody who has participated in this. It is something I know many members of the parliament have thought long and hard about, it is something that all of us have concerns about and it is something that we all know, as legislators, is a very difficult area because to get it right does not always make it most appealing to the commentariat and to people who want to sensationalise events.

The deputy leader spoke about a number of aspects of the bill. First of all, I appreciate her indicating her broad support for most of the initiatives. I also thank John Sulan, who, as the deputy leader mentioned, has been of great assistance. I also thank all those people who have participated in the consultation process. I will just point out that the consultation process on this bill and the consultation process on the major indictable matter, which has now been through this place, were basically operating in tandem because the two of them work off each other. That is why they have been introduced as a tandem proposition. Necessarily, we have to debate one before the other, so this one is the second of the two.

As far as the home detention provisions are concerned, I would particularly like to pick up on some of the remarks the former minister for corrections made. The original way we framed up the home detention legislation was to say, 'Essentially the courts should apply common sense and good judgement to the decision on who and in what circumstances should be the beneficiary of court-ordered home detention.'

Perhaps foreseeably, but unfortunately, there was a diversity of opinion amongst the various judges and magistrates who are called upon to apply the law as to how exactly the law should be applied. That resulted in a couple of matters which I would say to the members of the parliament surprised me as being matters ordered as home detention matters. But can I say that the process (as I was confident it would) did work itself through because those particular matters of R v Filipponi and R v Dell that were referred to went to the Full Court. They considered them and produced a very extensive judgement that very much captures the spirit of the original intention behind those measures in the first place.

Of course, we get into this problem of timing. The original home detention provisions came in at the beginning of September. There were a number of decisions based on those. There was some public disturbance—not unreasonably, I might add—but some of it was unfortunately fuelled by people who were sensationalising it. In respect of the Filipponi matter, for example, there was not an unreasonable degree of concern by the members of the public. That then led to a situation where the government considered it was necessary, because there was at that point no determination by the Full Court about exactly where the boundaries were, for the government to articulate some boundaries in the legislation, which is what we have done.

In a perfect world, that is not the perfect way to do it. The perfect way to do it is to ideally allow the courts to come to their own jurisprudence about how these things should be dealt with and to let them apply those things. If their jurisprudence proves ultimately to be wrong, then you correct it. We should ideally not be getting into a case of second-guessing or in fact pre-guessing the courts, but I acknowledge that in this case we were presented with not really much alternative. We had to make clear to the public that we understood the public's legitimate concern about one or two of those early home detention decisions.

So, we have a degree of prescription that the government is bringing into this bill in order to put some outer boundaries around what courts might order. I am comfortable that by and large what we are doing is fine. We are not bringing those boundaries into an unreasonable degree—but it is heartening that the Full Court in those two decisions, R v Filipponi and R v Dell, which were handed down in December of last year did through the courts much of the work that we thought we might be required to do through here. I make clear on the record that ultimately the courts have corrected what the public was understandably concerned about.

Of course, many of the commentators in this space do not actually have a great interest in exploring the details of these matters, and they are interested in creating anxiety or agitation in the public mind. As I said, and I will say it again, in the case of Filipponi, for example, I completely understand why people were unhappy about a person who was convicted of quite a serious drug offence being a person for whom this type of punishment was ordered. That certainly was not what the government had in mind. It certainly was not what I had in mind, but I say again, and I know I am labouring the point, the court corrected that. In correcting that, the court went to some trouble to identify that the court actually understood what the philosophy behind this was and put some quite useful boundaries around it from the court's point of view.

The deputy leader mentioned something about prisons. Of course, anything to do with these things inevitably provokes some conversation about prisons. Yes, we are presently in a circumstance where a large number of people are in prison, and nobody is happy about that. It is not a good thing to have a large number of citizens in prison. Mercifully for us, compared with places in parts of the United States, we have relatively low rates of incarceration, but they are still unacceptably high.

I want to make a few comments about why those levels are high at the moment and what is driving them because I think that is important for us to understand. One thing that is driving them—although it is not the main thing—is the subject matter of a bill that we dealt with earlier today, so I will not canvass all of that other than to say, in parentheses, that bill is intended to partially deal with the problem that the deputy leader referred to of people on remand for a lengthy period of time and not having been brought to trial. But that is not by any means the whole story.

In fact, if members are interested in having a look at the whole story, and the member for Schubert in particular might be interested in this because he is quite conversant with the ways of the web, there is a dashboard which AGD has put up in order to try to inform the public debate about what is going on in the courts and what is going on in the prisons. We are trying to make sure that people have an informed view about this. If you have a look at this, you can start dissecting some of these numbers, and I will give you a few. I will not give you numbers because they become quite tedious, but I will give you a few propositions you can draw out of those numbers.

The first one is that in the last few years the largest single driver of the increase in the number of people in prison, whether they be remandees or not, has been a change in public attitudes to domestic violence. Those attitudes have filtered across the whole system. At the beginning of the process, people are now reporting offences more frequently than previously they may have, and that is obviously a good thing. The police, especially in light of what they learned from the Abrahimzadeh case, have adopted a fairly clear zero tolerance policy, if that is the right way of putting it. They do not leave things in a state where there is any doubt. They always err on the side of safety for a potential victim of domestic violence, so the police are intervening more.

We have presumptions against bail for domestic violence offenders, and this bill does not deal with that but that obviously has an affect. Because more offences of this type are being brought to the notice of police and because police are investigating offences of this type, and because they investigate and identify a perpetrator and the perpetrator is charged and there is a presumption against bail, we are seeing larger numbers of these people finding their way into prisons.

Again, in the case of domestic violence, if a person is charged with a domestic violence offence, even if they are otherwise suitable to be remanded on bail, the question is: to what address, because you cannot remand on bail a person who is charged with domestic violence back to the place where they will be put back into close contact with a victim. So in some instances, there is an increase in the number of people who are remanded in custody because there is no safe place for them to be bailed to, so gaol becomes the default position.

Having said that, what is the big area for growth in prison numbers? Because these people are churning through relatively quickly, they are quite large in number but their stay is not long. What is actually blowing out the prison population on top of this is the fact that there are larger numbers of people who the courts are convicting of largely offences of violence—again, significantly many domestic violence offences—who are receiving stiffer sentences from the court than they used to receive, and these people are then being sentenced to gaol for periods of years, so these people are occupying beds for a period of years.

Whilst everybody is unhappy about the prison population, I think it is important that we understand that the people who are in prison on remand for domestic violence are the sort of people we have to be careful about if we are interested in public safety. The people who have been convicted of those types of offences and have been given increasingly stiff sentences by the courts are the sort of people who because of their threat to the community, in particular their partner, arguably are the sort of people who need to be detained for the safety of the public.

This is not one of those areas of public policy where there are simple answers; this is an area where everything is connected to everything else. Anyway, that was a slight digression but it was raised. As to the bill itself, we propose a number of amendments. I know the Deputy Leader of the Opposition has a number of amendments that she proposes. At a very high level, some of the amendments we have picked up from the opposition we do so because they do no harm, not because they actually improve the bill. For example, to say that murderers, terrorists and—

Ms Chapman interjecting:

The Hon. J.R. RAU: —serious sexual offenders should not get home detention—it is clear from the law, certainly post Filipponi if it was ever in doubt, that those people are never going to be getting home detention but, if we have to say the obvious, it does no harm and that is sometimes what we have to do here. Sometimes stating what is so obvious that it would knock you over is necessary. It does no harm, so we are happy to do it. There are other things that I am more concerned about, and I no doubt will go into this in a little more detail, and the deputy leader's amendment in respect of working hours is one that troubles me. What she is basically saying is that she is going for this one-size-fits-all solution, that you can only have 12 hours in any 24-hour period.

What I would say to that is, first, if we are talking about the goal that the deputy leader is on about, which is saying that if you are on home detention you only leave to go to work, full stop, then I am fine with that. There is no argument from me at all. However (and we will get into this a bit more later), you do not have to be an AFL footballer to have strange working hours. If you work in the oil and gas industry, for example, you might have one of those jobs where you are three days on and four days off, or whatever the case may be.

There are other jobs where people have shifts, and if you include the shift and the travelling time you may not come within the 12 hours. It would be a perverse outcome for those people, who otherwise would be suitable candidates and who otherwise could continue to work, because continuing to work and being a productive member of the community, notwithstanding that you have committed an offence, is an infinitely better predictor of a good outcome in terms of recidivism than sticking you in gaol, which is the university for crooks.

If a person is a suitable candidate and they are not a risk to the public, which we have made as a precondition, why on earth would we not be bending over backwards to keep them in gainful employment, which roots them in some part of civil society in some way? I do not have any problem with the deputy leader's objectives that you should not have people swinging the lead and making up silly stories and saying, 'I want to go out for this and I want to go out for that.' I am fine with all of that. I do not have any difficulty with that, but I do have a problem with the one-size-fits-all, 12 hours in 24 prescription.

Ms Chapman interjecting:

The Hon. J.R. RAU: My answer to that is let us give the experts, who can actually analyse this, as hard a guideline as you want—'Don't have these characters off running around unless it is specifically for work'—but let us not, in this place, try to predict every, single working option that every person out there might have. Let us allow the people, the corrections officers who are dealing with these characters, to work it out.

Sure, if they put forward a proposition that is not in keeping with the spirit that I think we are all trying to embrace, then that is a reviewable decision—and so it should be. However, I just have a problem with this very prescriptive solution. As for other bits and pieces of it, we will go through them in the committee stage.

To summarise, I think it is a shame that the timing of everything came out the way it did, although I guess it was inevitable once the court had made a decision that was outside what all of us would have thought was what we intended, namely, the Filipponi decision. It was inevitable that once that happened it would cause trouble, and that has obliged the parliament to reconsider whether or not the boundaries we put around home detention were sufficiently prescriptive. That is what we have done here.

However, I am comforted that ultimately the court did do what the court should do, and what I expected the court to do, which was to look at that decision and give a lot more advice and guidance about how things should happen in the future. I do not think that anything we are doing today is going to actually take away from the concepts that are in those two cases, Filipponi and Dell; I guess they actually add a bit of value to this, or this adds a bit of value to them.

My last general comment is in regard to this question about the safety of the public. If you look at the current Criminal Law (Sentencing) Act, it directs the court to turn its mind to umpteen different things. It does not give any guidance as to which one of those umpteen things is the most important, and then, just to make it interesting, it states at the end 'and anything else you can think of'.

I do not subscribe to the view that the courts are going around handing out bags of lollies to people. In fact, if you look at the statistics I was talking about before from Corrections, you will see that they are, particularly for violent criminals, handing out stiffer sentences. That said, I want it to be crystal clear for all the judges, all the magistrates and the public that, when a person comes before the court, the main thing the court is thinking of is, 'Having regard to what this person has done and what they are capable of doing, how do we keep the public safe?'

There will be boundaries around that. For example, if someone has committed an offence that has a maximum penalty of two years' gaol, then the most they can give them is two years' gaol, but the issue about the threat to the public is something that I think is very important. I am very pleased to hear that the opposition embraces that concept as being an agreed position because it is important.

It is also consistent with things we have done in other legislation—for example, the case of people who are repeat paedophile offenders. They can be detained indefinitely, but they can apply to be released on licence. Up until not that long ago, the court was obliged by the way the law was framed to anguish about whether or not the liberty of that individual trumped the safety of kids.

I have to say that courts, understandably, are pretty jealous of people's liberty not being taken away frivolously, but it was not crystal clear, reading that legislation, that the paramount consideration was the safety of the public. This parliament, in the last year or two, has actually changed that law, and we have done it in more than one place. People might be interested to know that, by changing that law, we have moved the dial in the balance of whether some of these predatory paedophiles are released into the public and whether or not they get another chance to molest some poor child.

We as a parliament should be quite proud of the fact that we have pushed back on that and said that these characters have demonstrated by their repeated behaviour, and by the psychiatric analysis of them as individuals, that they are a serious risk to the most vulnerable people in the community—namely, kids—and we unashamedly say, if you are in that position, the state is not going to be overly sympathetic about whether or not you feel like you should be out having the chance to do it all over again. I think the parliament has made some very important reforms here in the past, and this one is completely consistent with those.

My objective in this is to try to align all these elements in the criminal justice system so that the swing point becomes what is safe for the community as the first and foremost consideration when any of these questions come up. I hope that, if this bill passes in broadly the form it is in, all of us as members of parliament will be able to say to our constituents and other people out there that we have made a very clear statement as members of parliament as to what the legislature has in mind for the criminal justice system.

I am not saying that because I am being critical of the courts, because they have to apply the law as the law is, but I think it is important that we as a parliament are prepared to make a fairly unequivocal statement about where we think the balance should be struck. This bill tries very, very hard to make that clear by having that paramount consideration or primary consideration up front in the bill and it is referred to, I think, multiple times throughout the bill. I am paraphrasing the words because I am not parliamentary counsel but, just in case you did not quite get the message, tune back into the primary objective here: this is all about keeping the public safe.

Yes, this bill does include additional options for sentencing. Yes, some of those are novel, but I do not think that is any reason for us not to try them. Again, I am pleased that the deputy leader has a similar view that these things are worth trying, of course as long as the safety of the public is always first and foremost in the mind of those who are exercising judgement, whether they be officers of the court, judges, corrections officers or whoever they might be.

I went on a bit longer than I expected, but I actually care about this. I think this is very important and I am very pleased that the deputy leader has indicated broad agreement with the major elements.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr KNOLL: There will be a question at the end, Attorney, and the question will not be, 'How many steps have you done today on the new Fitbit?', which I see dangling in the moonlight. The minister made the comment that everybody is unhappy about the number of people in our prisons. I think that is a slight tangential shift. What I think he really meant to say was that everybody is unhappy about the fact that we have not planned for the prisoner population that we have.

I think South Australians take comfort from the fact that people who should be behind bars actually are behind bars, but it is up to the government to make sure that there are enough bars for those people to be behind. To try to suggest that everybody wants a lower prison population is not in and of itself correct. Sure, we would like to see fewer criminals, but this is about making sure that the community remains safe.

This bill does bring to account a number of things that the Department for Correctional Services will have to deal with. That is something that is more within my bailiwick, especially around these intensive correction orders and community-based orders, which we are happy to support for a number of reasons. First of all, as the Attorney said, we do not want to support people unnecessarily going into prisons where they learn the art of criminal activity for when they are released.

I think it could be a positive step that people are kept in the community where the general population has a better series of social norms than would be the case in the prison population, by dint of their offending, and keeping people in a place of better social norms is a good idea. We are supportive of those measures.

Especially in relation to the intensive correction orders, there is a high level of prescription about what will be put in as part of those orders. There is some discretion around the offender having to undertake an intervention program; submit to drug and alcohol testing—which I hope will be used by the courts in every instance where that is possible and appropriate; the offender not to consume or purchase alcohol; and the offender not to consume or purchase drugs, other than for therapeutic purposes. There is some discretion there from the courts, especially in relation to substance abuse. We will see how it plays out, but hopefully the courts use those provisions liberally to ensure that, through strict supervision, we can help those who have a propensity to drugs to reduce it.

The Attorney made a number of comments on giving judges discretion. I would like to highlight a recent instance that may undermine public confidence in the home detention/intensive bail supervision/intensive correction order system, where essentially we are trying to replicate a prison-like environment, while not putting people in prison, through a series of checks and controls that allow them to stay in a community but they are be subject to strict conditions that hopefully reduce their propensity and ability to offend—that is, the case of Jason Brady.

A District Court made a different decision from the one the Department for Correctional Services initially made in relation to Mr Brady's being allowed to attend the Mundine-Green fight, when he subsequently skipped his intensive bail supervision order. I do not think we have found the bloke, but I understand now that the police are looking, which is a good thing. What I would say, Attorney, is that those kinds of instances undermine the public's confidence in this system.

We have called it by various different names—intensive bail supervision, home detention, intensive correction order—but essentially we are talking about the same thing: people who are very likely to have an electronic monitoring bracelet around their ankle who should be home at night, rather than gallivanting on the streets, and who should have to report in to ensure that they are of sound mind and body and not under the influence of something that they should not be and that will potentially increase their likelihood to offend.

Instances such as the decision the District Court made in relation to Brady certainly undermine public confidence, and I think that is extremely important to note. That is why it is important to get this right and why, for instance, the shadow attorney is seeking to make amendments with a level of prescription—because we want to make sure that this is used as it is intended, as opposed to its becoming something the community would not be willing to accept.

The main thrust of my point comes down to this. Yes, we have a prison population that is somewhere over 3,000, and there are probably 150 to 200 more people in the system than it is designed to hold and, yes, we have in the order of 700-odd people from Corrections' last report who have gone through a home detention process and obviously a number of others under intensive bail supervision orders and the like, but it all comes down to resourcing.

Whilst we are attempting to set this up as a legitimate alternate form of incarceration—custody without remaining in prison—I have concerns about the ability of the department to resource these areas. I have heard concerns from police, for instance, who suggest that sometimes bail is granted based on the availability of police cells. I would hate to see that potentially influence decisions on whether or not people should be incarcerated, but also if someone becomes subject to one of these orders and is back out in the community.

If these people are locked up, we know that they are away from the rest of the community, but if we see a corrosion in the level of the ability of the department to respond to the number of people we are going to put under these orders, there will not be the same confidence in the community that these people are being monitored and observed in the way they should. It is also much more difficult to provide that absolute certainty to the public around whether or not these people are being measured and monitored in the way they should. If the minister has anything to update the house on what work has been done to understand the downstream effects of the decisions we are seeking to make here, it would be quite helpful.

Like many in the community, I want to feel reassured that the strict conditions that these people are being put under are followed to the letter and that it is not a case of, 'We'll do it when we have time,' or, 'We'll do it when we have enough people,' but that it is, 'We will do it in every single instance,' and that we make sure people comply and are looked after and monitored in the way that they should be.

The Hon. J.R. RAU: I thank the member for Schubert for his comments. We will get into the detail a bit more during the course of the committee stage. In general terms, obviously any supervision of people, whether it be in an institutional setting or otherwise, involves an allocation of resources. I understand that. That is one of those cost pressures we have to deal with. That said, subject to the overarching primary consideration of public safety, which trumps everything else, my main point was if you can supervise somebody in the community—the member for Schubert has raised the question of cost—it is actually cheaper than supervising them in gaol, I would have thought.

More to the point, the chance of them actually popping out the other end as a useful citizen who is not going to reoffend is much better. You save, not just in terms of dollars per day expended on this individual, but also in terms of future dollars when they do not become a frequent flyer. That is sound public policy, and it is also good for the people involved. The idea that we can have enlightened policies, which take people out of a cycle where they are behaving badly and offending against the law and get them into a cycle where they are law-abiding citizens, is a very good outcome.

I think we have to be imaginative and positive about ways to do that. Of course, no system is perfect, and sometimes humans will make an error. Even judicial officers can do that. That is why we have an appeal system, to try to deal with that. I think this Sentencing Bill tries to strike a balance between optimism for those who can be helped and a pretty hardline approach for those who refuse to be helped. I think that is the right balance. So, to those people who are not going to do the right thing, who are a risk to the public and who are going to hurt other people, this bill says you should not expect to be cut too much slack.

For those people who want to change what they are doing, who want to be positive about things and are prepared to try to turn their lives around, this bill gives us tools to work with them to try to give them a chance to get back on the right track and be a useful member of the community, which obviously is a great outcome from everyone's point of view. This strikes the right balance there, but I accept the comments made by the member for Schubert. There will be instances along the way where mistakes will be made.

Human errors will occur, and for those who wish to occupy the easy seats, the cheap seats where you just throw bread rolls at everything all the time and do not offer anything constructive, they are the moments when they come out of the woodwork. But if we take a slightly more long-term approach to this matter and think about it properly, if we do not just rush into the cheap seats and get the cheap shots in, and if we think about it in a little bit broader way, I think this offers a real opportunity for us to do better than we do now.

Clause passed.

Clauses 2 to 35 passed.

New clause 35A.

The Hon. J.R. RAU: I move:

Amendment No 1 [AG–1]—

Page 28, after line 27—Before clause 36 insert:

35A—Application of Subdivision

Except where the contrary intention expressly appears, this Subdivision is in addition to, and does not derogate from, a provision of this Act or any other Act—

(a) that expressly prohibits the reduction, mitigation or substitution of penalties or sentences; or

(b) that limits or otherwise makes special provision in relation to the way a penalty or sentence for a particular offence under that Act may be imposed.

This provision reintroduces a provision that currently exists in the Criminal Law (Sentencing) Act 1988. It has the effect of ensuring that nothing in the sentencing act affects provisions in that act or another act prohibiting a reduction, mitigation, or substitution of penalties.

Together with the specific provisions contained in the Road Traffic Act 1961 and the Criminal Law Consolidation Act 1935, it ensures that nothing in the sentencing act could be interpreted—and so far it has not been, as far as we know—to permit the reduction, or to mitigate licensed disqualifications under those acts. Its reinsertion into the Sentencing Bill is intended to clarify that position, so perhaps it would be prudent for me not to say too much more about that.

The CHAIR: Yes, perhaps it would be. Any discussion on clause 35A?

Ms CHAPMAN: We will consider that during the sitting of the house, but I accept it will be going into the bill today so we will look at it. It seems sensible.

Amendment carried; new clause inserted.

Clauses 36 to 68 passed.

Clause 69.

The Hon. J.R. RAU: I move:

Amendment No 2 [AG–1]—

Page 57, lines 12 to 15 (inclusive) [clause 69(1)(b)]—Delete paragraph (b) and substitute:

(b) are not exercisable in relation to—

(i) a defendant who is serving or is liable to serve a sentence of indeterminate duration and who has not had a non-parole period fixed; or

(ii) a defendant who is being sentenced for—

(A) an offence of murder; or

(B) treason; or

(C) an offence involving a terrorist act; or

(D) any other offence in respect of which an Act expressly prohibits the reduction, mitigation or substitution of penalties or sentences.

This amendment picks up some issues that were raised by the member for Stuart. As I mentioned briefly before, I do not think any thinking person would be of the view that there is any doubt about these not being appropriate matters for home detention but, as I said, it does no harm because I had always intended that these would be captured. Generally speaking, I do not like the idea of just writing a long list of things that are captured. That leads to the conclusion that other things are not because they are not on the list. There is no harm to be done by this and for that reason I move it.

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 3 [AG–1]—

Page 57, after line 17 [clause 69(2)]—Insert:

terrorist act has the same meaning as in the Terrorism (Commonwealth Powers) Act 2002.

It is consequential.

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 4 [AG–1]—

Page 57, after line 17—After subclause (2) insert:

(3) For the purposes of this Division, a reference to an offence of murder includes—

(a) an offence of conspiracy to murder; and

(b) an offence of aiding, abetting, counselling or procuring the commission of murder.

This amendment is also consequential.

Amendment carried; clause as amended passed.

Clause 70.

The Hon. J.R. RAU: I move:

Amendment No 5 [AG–1]—

Page 57, after line 34 [clause 70(2)(b)]—After subparagraph (i) insert:

(ia) as an adult for a serious sexual offence unless the court is satisfied that special reasons exist for the making of a home detention order; or

I will speak briefly on this clause. This gives a limited amount of discretion to the courts not to observe the general proposition about serious sexual offenders where special reasons exist, and I will explain why in a moment.

So that it is clear, the basic rule is that a person who is convicted of a serious sexual offence cannot be sentenced to home detention; that is the starting point. The amendment states that there may be an exceptional circumstance where the court may, nevertheless, order home detention. It goes to amendment No. 7, so I will talk on amendment No. 7 as well because it goes into the special circumstances point, if that makes any sense.

I am talking about amendments Nos 5 and 7 simultaneously. As to serious sexual offence, you cannot get home detention, except in exceptional circumstances—that is five. Seven is: what are the exceptional circumstances? This is the circumstance where the court can say, notwithstanding the rule that you cannot get home detention for this sort of offence, in these particular circumstances you might.

This provides that when considering whether a special circumstance exists to enable a defendant who is being sentenced for serious sexual offences serve their sentence in a home detention order, the court must have regard to certain matters set out, and these matters are quite particular. They are, whether by reason of advanced age or infirmity, the defendant no longer presents an appreciable risk to the safety of the community and where the interests of the community as a whole would be better served by the defendant servicing the sentence on home detention rather than in custody.

Ms Chapman interjecting:

The Hon. J.R. RAU: There is no 'and'.

Ms Chapman interjecting:

The Hon. J.R. RAU: It would have to have regard to both. It says at the top that it is in regard to both, so it is sort of conjunctive. Anyway, the reason this is here is something which came to my attention towards the end of last year. There was a case called R v Ebert. The decision was delivered on 17 October last year.

In that case, the serious offending occurred approximately 40 years earlier, which in and of itself is not to the point, but obviously the accused was 40 years younger. By the time of the sentencing, the defendant was 82 years of age and suffering from signs of dementia. The court had a report indicating that both his physical and psychological problems would make prison particularly difficult for this elderly individual. Bear in mind that this is all subject to this person not posing a threat to the public.

It is clear that, while he needed to be punished, he was no longer a risk to the community because of his advanced age and infirm state. This is one of those examples where, as I said earlier, where the court having a discretion makes sense. It did not in the case of Mr Filipponi. I think it does in this case.

Contemplating that there may be other defendants who wind up in this category, people who really should be in a nursing home or some other facility perhaps for people with dementia, we are introducing this limited carve-out to say that in those exceptional circumstances there is a discretion vested in the court to say that, notwithstanding the fact that as a general rule these are serious sexual offences and there is no way you are doing your time at home, in these very unusual circumstances, the court has a discretion to consider an application based on those two grounds. So, that is amendments Nos 5 and 7.

Ms CHAPMAN: I thank the Attorney for bringing this matter to the attention of the parliament because my view is quite different. He has referred to the case of R v Ebert. The sentencing remarks, which only relatively recently came to my attention, present to me a very different view. I hope he has read them because, yes, he is correct that it relates to an offender who was being sentenced at the age of 82 for offences against a young girl—in fact, the daughter of a friend—over four years from age 9 to 13.

The details are outlined as to the particulars of the offence. I do not need to go into those, but they are horrific, in my view, because of both the prolonged perpetration of these offences for this victim and also the clear effect it had on her. At the time of sentencing, he was 82; the victim was then 42. There have been major problems in her life as a result of it. When His Honour considered this matter, he took into account a discount option of 10 per cent, which was available to him. In relation to accepting that a guilty plea was ultimately entered, he said:

You showed no insight or remorse. It has had very considerable lifelong consequences for the victim.

He then went on to say:

I accept that your physical and psychological problems would make prison very much more difficult for you than for many other people.

The Attorney just told the parliament that these matters were apparently taken into account. The remarks do not detail what these matters were, but he goes on to say of the doctor and of the evidence that was presented:

I pause to say that in my view it is completely inappropriate for Dr Field to suggest that a custodial sentence would be particularly inappropriate for you and for him to go on to suggest that some appropriate community management be chosen instead. It is not his place to make such a recommendation.

He went on to talk about there being no prior convictions. In respect of age, which is a very prescriptive matter that the Attorney says should be taken into account in these isolated and rare circumstances, he says:

You are of advanced age and you have done your best in bringing up your large family. However, in my view none of these things amount, even in combination, to good reason to suspend the sentence. I decline to suspend the sentence.

He goes on:

However, the second consideration is whether I should consider ordering you to serve the prison sentence by way of home detention, pursuant to the new legislative provision.

I think he is referring to what the Attorney just mentioned—the new laws, in respect of taking a dim view and making sure that we do not allow matters to be other than, as he says:

The primary consideration for such an order before such an order can be made is the safety of the community.

Primary consideration does not exist in our current law. I am not quite sure why he was applying those words, which are in this bill.

The Hon. J.R. Rau: They're in the home detention provisions.

Ms CHAPMAN: Well, they are now.

The Hon. J.R. Rau: No, they were.

Ms CHAPMAN: He is suggesting that they are there. The remarks continue:

In the circumstances I do not think the community now is in any particular danger from you.

His Honour does not say why. He goes on:

The home detention report says that you have appropriate accommodation to go to. The home detention report says that you are a suitable candidate for home detention. I am satisfied that that is so.

Having dismissed all the other grounds, he then says in the sentencing remarks that he takes into account what is said in the home detention report. He does not tell us in the sentencing remarks what that is. Presumably, he has a house to go to, not an aged-care facility, as you might have suggested he needed to go to. He actually had a home to go to.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: Well, I'm just making the point. Do not gloss the situation, Attorney. I was disturbed when I read these sentencing remarks to find a situation where what we would see as the usual circumstances—namely, apparent dementia, which you now raise as a factor which you apparently know about; it is not in the sentencing remarks—is the basis of the home detention report. This is a report prepared by home detention officers, which is presented for consideration.

When I get to the amendments in relation to clause 70, I will have a bit more to say about that, but this is exactly the problem. A judge, in this instance, has relied on a home detention report from a home detention officer who is under the pump. I do not know what he has put in that report but it was sufficient, apparently, not because this man was old or did not have anywhere to go. He was satisfied that it should be dealt with, notwithstanding what I would describe as an obscene period of behaviour.

He then went on to talk about one or two of the conditions requiring supervision and counselling. He actually made a finding in his sentencing remarks that he did not see any point in any of that, not even restricting alcohol. He clearly took the view that there was no benefit in counselling or treatment for this person, and he says that the lack of insight of this offender was such that it was not going to make a scrap of difference.

I do not know what was in that report, but I can honestly say that I would not be satisfied, on the face of this, as to why this offender, 82 or not, should not be in prison and should not have spent that non-parole period in prison. I do not know why there was not some consideration by the DPP to appeal. He may have considered it, and he may have considered that it was not able to be appealed. I am very cautious about this amendment that you have added in to allow for this to occur when, even in our current situation, under the current law, a circumstance can arise which is totally inappropriate, in my view.

I might be wrong, but on the face of it there is nothing explicit in that home detention report, which appears to be the sole factor he has relied on to give this man home detention. Perhaps we might need to look at what needs to be in that for the public confidence, because if anything would shatter public confidence it would be this determination: allowing this man, after what he did, to walk free and to go into home detention. I say to the Attorney that we will have a look at this, but to say that it relates to advanced age or infirmity, that better be explicit when it comes to any allowance on this as to what the allegation is.

That suggests to me that it is because they are so old that Correctional Services cannot find a facility adequate to accommodate them. Let's be realistic about this. We have a number of mature-age males in our prison system who are there largely arising out of a focus on child sexual abuse, who years later have been prosecuted successfully and are now in prison or some are still waiting for a determination.

This does not protect against what I suggest is a very concerning matter. If you have any information about whether this was considered to be appealed, even applied to be appealed—I do not know, it may have been and failed, I have not searched that far. It only came to my attention recently, and I am appalled by it. I put on notice that we will consider amendments Nos 5 and 7 in due course and see whether we support them.

The Hon. J.R. RAU: I hear what the deputy leader is saying and, of course, I do not have any sympathy whatever for this offender. This particular provision was not drawn up with the express purpose of enabling him to be able to walk straight through it; it was that he identified for me, perhaps him not fitting the class himself for the reasons—

Ms Chapman interjecting:

The Hon. J.R. RAU: Let me finish. He may or may not pass this test. Maybe this should be a general provision, not just for these sexual offenders. I am happy to talk to the deputy leader about how we do this, but my fundamental point is this: if somebody is either very old and frail or they are mentally compromised, demented or they have advanced Alzheimer's—

Ms Chapman: If they have, they wouldn't be there.

The Hon. J.R. RAU: No, I am saying 'if' they have. I cannot think of anything less humane—and notwithstanding their crimes, the rest of us should try to be a bit humane—than putting a person such as that in prison with the general prison population. It might be that that is the only place you can put them. It might be that their offending is so bad that that is where you have to put them. It might be that they are still a risk, notwithstanding these things, and that is where you will have to put them. I am trying to provide a bit of room for the courts to deal with those outlying, exceptional cases of infirmity. If I have not captured the right words here, I am very happy to talk to the deputy leader about how we can capture something better.

I am just mindful of that fact. It may be that a better casting of this would be a general provision, rather than one specifically for these types of offenders—that is, if somebody is so old or so frail or so mentally compromised and they are not obviously (the first question) a risk to the public—they are not that but they have all these other things and basically it would be inhumane to stick them in the general prison environment—should we permit the court to have a discretion? I am troubled by this, too, but I do not think that we cannot think about it.

At this stage, I will proceed with it as it is but with a big caveat—that I hear what the deputy leader is saying, that I do not think the points she raises are insubstantial and that I am happy to talk to her further about it. If there is another way of providing some wriggle room for the courts in extreme circumstances—and we are talking about very rare circumstances—and if we can find a form of words that captures very rare circumstances, where it would be just (a) the public is not going to be put at risk (and that trumps everything), and assuming that the public is not going to be put at risk and the person is compromised in the way I mentioned, I think we should try to do something about that. The other point I make is that I think this fellow would be out of the loop anyway under the provisions as we have them because the non-parole period would have been in excess of two years.

Ms Chapman: I think it is nine months.

The Hon. J.R. RAU: Is it nine months? Fair enough.

Ms Chapman: I will have to check it but I am pretty sure it is nine months.

The Hon. J.R. RAU: I see, for designated offences. Anyway, let's talk more about this one amendment. I think it is difficult. I am not for a moment saying I am absolutely certain that this is perfect. What I am saying, though, is that in some extreme circumstances latitude for the court would be prudent; otherwise, we will wind up with perverse outcomes, with very sick people or very frail people being put in a completely inappropriate place.

Ms CHAPMAN: I would like to clarify that because I indicated to the Attorney that it might have been nine months but, in fact, it was a 12-year sentence with a five-year non-parole period.

The Hon. J.R. RAU: That was my recollection, too. It would mean that this chap would have fallen foul of the two-year thing—it would be another strike against him.

Ms Chapman interjecting:

The Hon. J.R. RAU: That is something I need to look at, but it does occur to me that his non-parole period was sufficiently long that our putting in our two years—I think we need to look at this further. We need to look at this further because I think this is a matter where the non-parole period point may be the answer we are looking for. The non-parole period point might be where we capture the seriousness that the deputy leader was talking about and if we say, 'You have to come below that two years anyway,' maybe that is the answer.

Ms CHAPMAN: I thank the Attorney for his indication. Where do we currently hold mature-age people in the prison system—I am assuming that this is at Yatala but it may be at another prison—in this category who are there for usually a long time? Of course, they sometimes die whilst incarcerated, and I accept that. I do not have the recent data before me, but there are a considerable number of people who are of mature age and for different reasons, such as deteriorating health, are still in our prison system.

My last consideration of this was that there is a certain area in the prison for sexual offenders. That may or may not be the case now, I do not know, but I hope that we would have something between the houses as to the number of prisoners currently in the area the Attorney considers might be eligible for these circumstances if they were going to be sentenced today.

Let us assume that there are 10 people out of 3,000 in our prison system who are in the category of being not just mature aged but frail aged, who have some debilitating condition that effectively makes them incapable of being a safety risk to the community, as per what the Attorney is proposing. Where will we accommodate those? At the moment they go to get medical attention from time to time or services come to them—which I assume still happens—and sometimes they are transferred, under custody, to a health facility. That may be for a period of time pre expected death.

We need some data on that because, if you are going to have a separate unit in a prison for these people, or a separate facility altogether, that is one option. The alternative is that you let them out, on the basis that they can get access through this new formula that the Attorney indicates he will give some thought to modifying, because we need to deal with those as well.

The Hon. J.R. RAU: I will try to get the answers to those questions as best I can. I suspect that one of the difficulties in getting those answers will be a definitional threshold about who we are trying to capture in the answer, but we will do our best.

I just make this point: whatever the answer to that question is, I think there is a qualitative difference between a person who grows old in an institutional context and someone who is old and is being introduced into an institutional context. I know that one cannot rely on the popular media for these things, but one does read books and see films with portrayals of long-term prisoners who leave and actually feel so lost that they would rather be back where they were. They have become institutionalised.

Ms Chapman interjecting:

The Hon. J.R. RAU: I think The Shawshank Redemption is later than that. We will get the stats for you as best we can, but I make the point that if someone has deteriorated in situ, so to speak, at least they are in a familiar environment. That may not be a satisfactory environment, and I take the point, I understand the point, but I think it is qualitatively different from age into infirmity in a place rather than being introduced infirm into a place. I think that is a different proposition. However, certainly let us keep talking.

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 6 [AG–1]—

Page 58, line 3 [clause 70(2)(b)(iii)]—Before 'home detention' insert:

imprisonment (other than where the sentence is suspended) or

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 7 [AG–1]—

Page 58, after line 24—After subclause (3) insert:

(3a) In deciding whether special reasons exist for the purposes of subsection (2)(b)(ia), the court must have regard to both of the following matters and only those matters:

(a) whether the defendant's advanced age or infirmity means that the defendant no longer presents an appreciable risk to the safety of the community (whether as individuals or in general);

(b) whether the interest of the community as a whole would be better served by the defendant serving the sentence on home detention rather than in custody.

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 8 [AG–1]—

Page 58, line 36 [clause 70(4), definition of designated offence]—Delete paragraph (i)

This removes sexual offences from the list of designated offences, because those offences have now all been incorporated into the definition of serious sexual offences. As I understand it, it is just moving it from one part to another.

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 9 [AG–1]—

Page 59, after line 19 [clause 70(4)]—After the definition of serious and organised crime offence insert:

serious sexual offence means any of the following offences where the maximum penalty prescribed for the offence is, or includes, imprisonment for at least 5 years:

(a) —

(i) an offence under section 48, 48A, 49, 50, 51, 56, 58, 59, 60, 63, 63B, 66, 67, 68 or 72 of the Criminal Law Consolidation Act 1935;

(ii) an offence against a corresponding previous enactment substantially similar to an offence referred to in subparagraph (i);

(iii) an attempt to commit or an assault with intent to commit any of the offences referred to in either of the preceding subparagraphs;

(b) an offence against the law of another State or a Territory corresponding to an offence referred to in paragraph (a);

Amendment carried; clause as amended passed.

Clause 71.

Ms CHAPMAN: I move:

Amendment No 1 [Chapman–1]—

Page 60, after line 28—After subclause (1) insert:

(1a) The following limitations apply in relation to an approval that may be given by a home detention officer under subsection (1)(a):

(a) approval for a person subject to a home detention order to leave the residence specified by the court in the order at which the person must remain for any purpose allowed under subsection (1)(a) may only be given if the aggregate of the periods of absence from the residence would be less than 12 hours in any 24 hour period;

(b) participation by a person subject to a home detention order in a sporting activity in respect of which the person receives remuneration may not be approved to be remunerated employment for the purposes of subsection (1)(a)(i).

(1b) The limitations imposed by subsection (1a) may only be varied or revoked by the court if the court is satisfied, by evidence given on oath, that there are cogent reasons to do so.

This deals with the clause in the bill which changes, from the current law, conditions for home detention. Under the current law, the four areas that allow you to have some exemption from remaining at the residence throughout the period of the home detention order are remunerative employment; attending for urgent medical or dental treatment; attendance at a course of education, training or instruction or any other activity as approved or directed by the order (in any event, it deals with education and training); and, fourthly, for other purposes as approved or directed by the home detention officer to whom the person is assigned.

The new bill covers those same four things but adds a provision in respect of the remunerative employment condition that allows you to leave the house by adding in the words 'at such times and places as approved from time to time by the home detention officer to whom the person is assigned during the period of the home detention order'. Clearly, this is the government's answer to say they are not going to be leaving that unrestricted. There have to be terms and conditions set by a designated person.

Herein lies the inherent weakness of that addition; that is, again, we are asking the terms and conditions to be set by the home detention officer who is the very person employed by the Department for Correctional Services who obviously has to deal with, in that envelope, the pressing demand of trying to find space within our current prison system. These are not independent court officers, these are not people who are psychologists brought in to give independent reports to the judge in sentencing dealing with home detention: these are correctional home detention officers.

In the course of the consultation on this matter, I asked the Attorney-General's office to provide some data in respect of who currently deals with these matters. He advised, by letter of 10 January 2017, that the home detention officers are persons who have been appointed under section 37CA of the Correctional Services Act 1982, and there are 58.56 full-time equivalents in the Intensive Compliance Unit. They undertake a range of compliance checks and electronic monitoring components, including home visits. There are also 216.3 full-time equivalents in Community Corrections who are responsible for the supervision of offenders subject to community-based orders, including those with conditions of electronic monitoring.

The Attorney also provided information to confirm that, within those cohorts—and we are talking about approximately 280 full-time equivalent personnel—there are additional and temporary staff added to the Department for Correctional Services Courts Unit to meet the increased demand of reports. This is, just as we did in the Ebert case, to highlight a situation where the home detention officer provides a report to the court. There was a backlog of these, and that is acknowledged by the Attorney. This letter I think is designed to give me some reassurance or shut me up, however you want to put it, that that is in hand and being managed.

The information is appreciated, thank you. Unfortunately, it does not satisfy me at least, but there may be others in the parliament who think, 'That's fine. They have plenty of time to do what is needed.' There is no indication of further personnel who will be appointed to do any of these intensive correction orders that are proposed in the bill we are currently addressing. However, most significantly for me, under the current cohort, it appears—again, I have to rely on media reports of the correctional service officers' union—that they are under the pump and that there is pressure.

There have been media statements to that effect in respect of the work that they are expected to do to manage their current job, so I do not get a lot of satisfaction from this. I also know that these people have another job to do. They are dealing with not just court supervision but also the supervision of persons who are already sentenced and who are allowed to undertake a role post release. That is another cohort who currently might be released on certain conditions, including home detention, and those officers have to deal with that cohort.

They support the judiciary in relation to dealing with people on the way in and they also have the pressure of people leaving the prison system to provide bracelets, conditions, supervision, home visits, etc. It is a big job and at the moment I, for one, given the number of cases that we are now reading about in our press of people who take their bracelets off and abscond, as we heard about before, believe they are in need of intense supervision one way or the other. We need to have these officers there and I am not satisfied that it is going to be sufficiently resourced to give me confidence that it is going to work.

The other thing that was provided was a copy of the ministerial determination of the corrections minister that I asked for, which on my understanding is similar to that which was provided for by the previous corrections minister, who in fact spoke on this bill today. The current determination is dated 14 September last year and it is signed by the current minister. He has already issued a ministerial direction which, as I said, repeats the previous one and confirms that there is no eligibility for home detention if they are convicted of a homicide offence—so, not murder, just a homicide offence—a sexual offence and the sentences of prisoners who have been convicted of a terrorist act under the law of the commonwealth.

In my view, that is going to be outdated within weeks, if this bill passes, and we need to deal with that. They then need to take into account what I would consider to be usual and reasonable things to consider when they are preparing their reports or making their assessment for the purposes of release, because they are the ones who are giving this advice. So, they are under the pump, for the reasons we have explained, and they have a double job.

It may be that you will be able to convince me or anyone else in the parliament that we have a sufficient cohort to be able to deal with this, but I am not satisfied that they can, in those jobs, quarantine themselves from their other master, which is not you, Attorney, and it is not the judge. Rather, it is the minister for corrections and the CEO of the prisons, of course, Mr Brown, who has to manage all those conflicting pressures that he has at present.

For that reason, I would have preferred to see the sentencing at the judicial end as being a determination left to the judge. Sure, they can ask for reports if they want to, but the conditions ought to be set by the judge and, if they want to change them—change of work or health condition changes where they need to be released from home detention for medical reasons or whatever—they come back to the judge. That would be my preferred option.

Now that you have gone down this path of placing these people in this capacity, we will consider that, if I have that reassurance, but it has to be with these two things; one is that there be some identified period of time when they have to stay in the house and that they will not be allowed to leave the premises. We are proposing this amendment that it be a minimum of 12 hours a day, for the very reason that they may have a full-time job and they may need some reasonable time to travel to and fro—fine. I accept that work is important; in fact, the value of work should never be underestimated. It is very important for rehabilitation, in this case, but for everybody, for the whole social inclusion concept.

But I make this point: I am quite happy to look at other ways of how we might restrict that. It may be that in the circumstances of employment that requires a week on or two weeks on and two weeks off, that the two weeks that they fly to a mining site is under other conditions—no consumption of alcohol, etc.—but that they, obviously, are not required to stay at home, but that, for the two weeks that they are back in their home or usual place of residence, the whole of that time they are to be on home detention. I am happy to look at that, but I make the point that the public expect, I expect, and I think most of the people here in the parliament expect, this is not some home holiday.

The second area is to ensure that the nature of their work, if it is a sporting or leisure activity—or one of the other cases, for example, was to say, 'Well, look, I need to go to coaching, I need to do other things, I play in a band, I need to have 24-hour restriction from the house lifted.' I do not think the public accept that. We have to have some restriction on that. Again, if there is a better way to deal with this, I am still happy to speak about it, but for the moment I put those points.

It is qualified also that, if there is a variation to this, they go back to court anyway, even if it is on the basis that the home detention officer is providing it with those two limitations or some variation of them. So, I put the motion.

The Hon. J.R. RAU: This is one of those cases where I do not think the deputy leader and I have a difference of opinion of where we want to land: the question is about the method. I am very wary of this proscriptive method, so I oppose it on that basis. I do not oppose it on the basis that I do not agree with what she is on about—I do agree with what she is on about.

Between the houses, we will try to assure her that the people who are doing this job are able to discharge these duties, and we can also have a chat about whether other forms of words might capture what I think we are both trying to achieve.

Amendment negatived; clause passed.

Clause 72.

The Hon. J.R. RAU: I move:

Amendment No 10 [AG–1]—

Page 61, line 29 [clause 72(4)(a)]—Delete 'direct that the following periods be taken' and substitute:

take the following periods

Ms CHAPMAN: Will the Attorney explain what this is about?

The Hon. J.R. RAU: This amends clause 72(4)(a) to clarify how the courts should take into account periods spent on home detention or in custody in the event of a breach. It is a minor change in terminology and is something that has come from feedback we had from the Magistrates Court.

Amendment carried; clause as amended passed.

Clauses 73 to 80 passed.

Clause 81.

The CHAIR: We have amendment No. 11 on schedule 2 in your name, minister.

The Hon. J.R. RAU: This is a typo. I move:

Amendment No 11 [AG–1]—

Page 65, line 28 [clause 81(1)(b)]—Delete 'order' and substitute 'officer'

Amendment carried; clause as amended passed.

Clause 82.

The CHAIR: We have amendment No. 12 in your name, Attorney.

The Hon. J.R. RAU: This is another typo. I move:

Amendment No 12 [AG–1]—

Page 67, line 20 [clause 82(2)(b)]—Delete '12 months' and substitute '2 years'

Amendment carried.

The Hon. J.R. RAU: I move:

Amendment No 13 [AG–1]—

Page 67, line 26 [clause 82(3)(a)]—Delete 'direct that the following periods be taken' and substitute:

take the following periods

This follows feedback from the Magistrates Court. It clarifies how the court should take into account periods spent in compliance with an intensive corrections order or in custody in the event of a breach. Again, it is a terminology change.

Amendment carried; clause as amended passed.

Remaining clauses (83 to 127), schedule and title passed.

Bill reported with amendment.

Third Reading

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) (17:55): I move:

That this bill be now read a third time.

Bill read a third time and passed.


At 17:56 the house adjourned until Wednesday 1 March 2017 at 11:00.

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