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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2020-07-22 Daily Xml
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Bills

Sentencing (Serious Repeat Offenders) Amendment Bill

Introduction and First Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (15:46): Obtained leave and introduced a bill for an act to amend the Sentencing Act 2017. Read a first time.

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (15:47): I move:

That this bill be now read a second time.

This bill seeks to address a number of issues with the serious repeat offender provisions in part 3, division 4 of the Sentencing Act 2017, which I hereafter refer to as 'the act'. The act became operational on 30 April 2018, but some of the issues with the serious repeat offender provisions were already present when they formed part of the repealed Criminal Law (Sentencing) Act 1988.

The serious repeat offender provisions contained in part 3, division 4 of the act are designed to ensure that offenders who have committed a certain number of serious offences and continue to offend are punished more severely for their subsequent offending. There is a list of serious offences that, upon conviction, count towards the threshold for becoming a serious repeat offender and being sentenced as such.

In order to count towards the threshold, offences (other than the serious firearm offences) must have a maximum penalty of imprisonment of at least five years and, in the case of the first two categories, a term of imprisonment must have actually been (or, in the case of offences before the court where the provisions are considered, will be) imposed.

There are four categories of offending which, if met, will mean that a person will automatically be taken to be a serious repeat offender. These are:

(a) when a person has committed on at least three separate occasions a category A serious offence to which the division applies;

(b) when a person has committed on at least three separate occasions a serious offence to which the division applies;

(c) when a person has committed on at least two separate occasions a serious sexual offence against a person under the age of 14 years; and

(d) when a person has committed on at least two separate occasions a category A serious offence.

Once an offender meets the threshold in any of these four categories they automatically become a serious repeat offender and must be sentenced as such for all subsequent offences, whether they are serious or not, for the rest of their life.

When sentencing a serious repeat offender, the sentencing court is not bound to ensure that the sentence it imposes is proportional to the offence, or any non-parole period that must be at least four-fifths of the sentence. The automatic application of these provisions can only be varied if the offender gives evidence on oath that satisfies a court that their circumstances are so exceptional as to outweigh the paramount consideration of protection of the community and personal and general deterrence, and that in all the circumstances it is not appropriate for them to be sentenced as a serious repeat offender.

Prior to 2016 the now repealed Criminal Law (Sentencing) Act had slightly different provisions, with only a person who was convicted of three category A serious offences on separate occasions automatically taken to be a serious repeat offender. Offenders in the other three categories were only serious repeat offenders if the court declared them to be; in other words, the court retained a discretion in relation to these other three categories.

With the enactment of the new Sentencing Act 2017, which commenced operation on 30 April 2018, the court's discretion was removed and all four of the categories operated automatically. The removal of the court's discretion created an overlap and inconsistency between the two categories (a) and (d), making category (a) now redundant. Confronted with this anomaly, some judges opted to construe this in the defendant's favour, that is, not applying category (d) and therefore requiring the offender to have committed three rather than two offences for sentencing them as a serious repeat offender.

The changes in 2017 also created an overlap between categories (a) and (b) in that all the category A serious offences in (a) were also serious offences in (b). This means that the distinction between three category A offences and three serious offences is essentially meaningless. The bill makes amendments to remove these overlaps and inconsistencies. The current provisions are also difficult for the courts, prosecutors and defence counsel to apply in practice due to the imprecise way in which the offences are described.

The report provided by SAPOL about an offender does not generally contain sufficient information about the circumstances of offending or the provisions of the legislation under which historical charges were brought to apply the serious repeat offender provisions. It therefore becomes necessary to access other records such as sentencing remarks or offenders' case files to ascertain the circumstances of the offending and exactly what aspects were proved beyond reasonable doubt in the resulting convictions. The concept of a home invasion illustrates this difficulty.

To amount to a home invasion, as defined in the current provisions, the offence charged needs to be a serious criminal trespass in a place of residence contrary to section 170 of the Criminal Law Consolidation Act 1935. However, the current provisions also require that a person was lawfully present in the residence at the time or that the offender was reckless about whether anyone else was present. Substantial research is therefore necessary to determine whether these elements were present and that the court found them to be proved beyond reasonable doubt such that the offence counts as a serious repeat offender provision.

Where an offender has an extensive criminal history it becomes necessary to examine a large number of offences to determine whether a category A serious offence or an offence to which this division applies, serious offence, serious firearm offence or other criteria are met for the two or three offences. In the case of serious sexual offences, it is necessary to determine whether there are two separate offences against victims under 14.

Where offences were committed under interstate legislation, the task of obtaining more detail as to the circumstances surrounding an offence is even more difficult. Prosecutors must work out from a bare description in a criminal history report, the section of the interstate law that was contravened and whether the same conduct at the relevant time would have amounted to the offence contrary to South Australian law for which a penalty of at least five years' imprisonment was applicable.

It may be necessary to seek more information from the interstate authorities. Researching of an offender's criminal history in this way is labour intensive, has resource implications for prosecuting authorities and the courts and can lead to delays in sentencing. In addition, there is some doubt as to whether suspended and community-based custodial sentences are to be counted for the purposes of these provisions. Well, it is another piece of legislation we have to clean up. This bill addresses all of these issues.

Given the extent of the changes required, sections 52 and 53 of the act have been rewritten in a simplified form. Under the bill, the inconsistency between categories (a) and (d) and overlap between categories (a) and (b) are removed. Section 53(1) provides that a person will automatically become a serious repeat offender if they, whether an adult or as a youth, have been convicted of at least three serious offences committed on separate occasions or at least two serious sexual offences (defined in section 52 to be offences where the victim is under the age of 14 at the time of the offence).

There is greater clarity as to which offences are included as serious offences, with the new descriptions in section 52 referring, where relevant, to the section in the Criminal Law Consolidation Act 1935 (the CLCA) that creates them. All of the current category A offences are included in the list of serious offences and so the confusing concept of category A offences has been dispensed with.

As is the case currently, serious sexual offences that are committed against persons over 18 years are serious offences to which the threshold of three offences applies. Offences committed interstate are to be assessed by reference to conduct to determine whether they should be counted towards the serious repeat offender threshold in this state. Suspended and community-based custodial sentences are not counted as sentences of imprisonment for the purposes of these provisions.

Other matters of detail to note include the replacement of 'home invasion' with the offence of serious criminal trespass in a place of residence, namely, an offence under section 170 of the Criminal Law Consolidation Act, and the addition of aggravated criminal trespass to the list of serious offences. The reference to violent offences has been omitted, noting that this category of offence is already covered by the inclusion of all offences under part 3 of the Criminal Law Consolidation Act. An offence under section 51 of the Criminal Law Consolidation Act (sexual exploitation of a person with a cognitive impairment) has been added to the definition of 'serious sexual offence'.

Pursuant to the transitional provisions in schedule 1, the amendments will apply to a sentence imposed after their commencement regardless of whether the offence was committed before or after that commencement or whether the defendant is being sentenced at first instance or on appeal. The amended provisions do not affect any sentence already imposed. Corresponding amendments are made to section 55(1) of the act, which establishes the threshold for a court to make a declaration of a youth as a recidivist young offender. The court retains a discretion as to whether to sentence a youth as such.

This is a relatively small bill, but it is an important one that will ensure that serious repeat offender provisions are more readily understood and applied. They mandate a robust sentencing response to those who repeatedly flout the law by ensuring they can be more harshly punished for an offending once the threshold of serious offences has been reached and that any non-parole period is at least 80 per cent of the head sentence.

I do not in any way criticise the former government for the introduction of serious repeat offender legislation. I had a lot to say about its application to youths at the time, but I commended the government for developing this aspect in the sentencing law, but there were mistakes made and clearly they have been identified. They make it very difficult for police investigators generally, obviously those assessing interstate matters, and also the courts in trying to work out where they start with the application of this law. Without this clarity it is going to continue. I urge members to consider this.

I appreciate the significant work of the courts, the DPP's office, SAPOL, the Legal Services Commission and the Law Society, in particular. I mention it at this point because these things seem to be simple when we prepare legislation, but this is yet again a circumstance where it has really unravelled in its application. It is not easy to resolve, but we have worked on it and this one is ready to progress. I seek leave to have the explanation of clauses inserted without my reading it.

Leave granted.

EXPLANATION OF CLAUSES

Part 1—Preliminary 1—Short title 2—Commencement 3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Sentencing Act 2017

4—Substitution of sections 52 and 53

This clause substitutes a simplified version of section 53 (and necessary associated definitions in new section 52).

5—Amendment of section 55—Declaration that youth is recidivist young offender

This clause makes matching amendments to section 55(1).

Schedule 1—Transitional provisions etc

1—Application of amendments

The transitional provision clarifies that the amendments apply to sentencing occurring after commencement (but not to any sentencing that has already occurred).

Debate adjourned on motion of Mr Odenwalder.

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