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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2020-10-14 Daily Xml
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Sentencing (Reduction of Sentences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 22 July 2020.)

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (11:04): I propose to make a contribution in relation to this legislation. It has been introduced to accede to at least one part of the recommendations of the Hon. Brian Martin, AO QC, in a report that he provided in 2020, on instruction from the government, to investigate and report on and provide material as to the current circumstances interstate, and generally to consult with stakeholders and victims advocacy agencies, together with any members of the public. That report has been published by the government.

Superseding that, there has been a Statutes Amendment (Sentencing) Bill, introduced by the government and passed by the parliament only yesterday in all its stages, which comprehensively deals with sentencing reform on discounted sentencing, which has been endorsed by the parliament. It covers the field, so to speak, in respect of this bill, which had reflected a cherrypicked portion of the recommendations made by Mr Martin.

There are a number of weaknesses in this bill progressing in any event because in itself, by virtue of only identifying and progressing a portion of the recommendations, it had failed to deal with a number of matters, including no provisions for transitional clauses. I think it is important that we identify in understanding the government's opposition to this bill, because both are now superfluous, as to the distinctive features of what law has now passed the parliament at the government's behest and also the weaknesses in this.

The reason I want to do so is not that I wish to highlight that there has been a now at-one position of the government and opposition that sentencing discounting of up to 40 per cent for entering a plea of guilty within the first four weeks is not acceptable. The opposition has, via the Hon. Kyam Maher, representing the opposition, made very public and very clear that it does not support the position that had previously been taken by the Labor government that it does need to be changed. He was, of course, pushing, long belatedly, with the new Leader of the Opposition, who has now, notwithstanding being in cabinet himself in the lead-up to the election, had plenty of opportunity to remedy this in his time—but he did not.

The fact is that the opposition has come to accept that this 40 per cent rule was unacceptable to the public. It was the most generous to defendants in Australia when it was introduced. That in itself should have sent alarm bells because there was some public outcry, certainly from the then opposition now government, that this was a step too far and that it was unacceptable then, so much so that in the lead-up to the following elections we committed that we would remedy this and that we would have that comprehensively assessed. That is precisely what we have done.

This is not the first time since the election that the government has said, 'Okay, we have changed our minds now. We do agree that we need to reform this area of criminal law and we want the government to get on and deal with it. They seem to have a new approach to these things, expecting us to have done it yesterday. Nevertheless, they have had a change of heart on some of these things.

Of course, we welcome that. What we do not welcome is a situation where, in the haste to get a headline, either the Leader of the Opposition or some other shadow ministers want to rush out, cherrypick a piece of information which they see as politically advantageous and which the public are already speaking about and speaking out about, throw it into a bill and rush into the parliament with it.

The problem with that is that so many other critical aspects of the law get missed out and we are left with another mess. When I sat in opposition in this parliament, I do not know how many times Attorney-General Atkinson and Attorney-General Rau would come in with legislation—even then with all the benefits of the advice that you have in government—and insist that they do something to make it look like they are stronger, bigger, faster and better than anyone else ever before in the history of the world. The fact is that they kept getting it wrong because either they pushed the envelope or if they had advice they clearly were not taking it.

The greatest example of that, Mr Speaker, with which you would be familiar because it was a matter that, frankly, was an embarrassment to South Australia, was in Premier Rann's era with his attorney-general making public statements about how they were going to deal with outlaw motorcycle gangs in South Australia: that they would push down the fortresses, that they would lock up bikies and that they would make laws in relation to their association which were going to clamp down on this type of organised criminal activity.

They passed laws and there were long debates here in the parliament about whether they were even going to be valid. The criticism at the time was that this law was going to effectively have the rubber stamp of executive assessments by a judge. You, sir, would be very familiar with the fact that we cannot make laws here that require a judge's determination without their assessment. That is, they cannot be asked to simply rubberstamp an executive assessment. For example, if a head law officer or a DPP or a Crown solicitor or someone makes some assessment and hands it over to a judge and that then is essentially rubberstamped; that is not valid law.

In the case of Totani, we had to go all the way to the High Court to deal with that issue. We had the expense and the humiliation that came from that when a piece of law was identified as being invalid and struck down, and what did we have to do? After repeated court challenges, applications to the High Court and the High Court striking it down, we had to come back several years later and start all over again.

I think ultimately Attorney-General Rau ended up having a much more constructive role in trying to remedy what had been an utter failure. It was not only a failure: think of the expense that is incurred and the process of delay that results when there is this, I think, bullish approach to implementing promises that really go beyond the capacity of the parliament. It is embarrassing to the parliament, and I think it was an embarrassing episode for South Australia.

The courts were quite right to identify this position as not being within their usual remit to exercise their judicial power as they were being asked to rubberstamp an executive assessment. The whole episode apparently allows inappropriate or unlawful activity and outlaw motorcycle operations to continue, as well as obviously drugs, prostitution and other areas that were raised at the time as being activity undertaken in organised crime.

It does not actually resolve the issue; it just leaves a lot of pain, a lot of expense and a lot of red faces. I do not want that for South Australia. As the first law officer, I think it is important that we act responsibly and that responsible laws are brought to the parliament. I ask that this bill be opposed.

Time expired.

Mr PICTON (Kaurna) (11:15): I think that if we had been given the previous debate on legislation in regard to this and in the council this week, we would have been happy to end this. But, now that the Attorney has started the debate on it, I am told reliably by the Clerk, who has never been wrong before, that we cannot end the bill now, that we will have to defer it to the next time. Given that the Attorney has now decided to speak on this, with her own particular slant on events as they have transpired, let's remember a couple of facts.

The opposition acted to introduce this legislation to make sure that we could address this issue months and months ago. What did the government do? They did not want to progress this legislation and they in fact took that position in the house so that we could not debate this legislation, we could not get this enacted into law months and months ago before the winter break and, because of that, we saw a series of people using that opportunity to take guilty pleas and to get that sentence discount in the interim, all of which could have been prevented had we debated this, had we gone through this legislation months ago, as we had proposed to do.

The Attorney says that we needed to get the detail right, but even when she brought in a piece of legislation she did not have the detail right. She made a whole series of amendments, and there were even a number of things that we pointed out to her that needed to be fixed. We could have had that debate months ago, we could have had this legislation in place and a whole lot of different sentences could have been made.

It was particularly telling when we saw on the TV news last night the Attorney-General talking about this. A lot of what she was talking about was the money involved in these sentences, the cost to taxpayers for these additional sentences. The people in my community and our communities across the state are more concerned about making sure the sentences are right.

We should have acted on the report, received not months and months ago but I believe the beginning of last year, which the Attorney has been sitting on and which she has not taken action on. We sought to take action, but unfortunately the Attorney-General did not want to do that, the government did not want to do that and, because of that, we had a whole series of results in the courts that could have turned out a different way.

Mrs POWER (Elder) (11:18): I rise to oppose this bill and this very important issue about sentencing, which ultimately speaks to the heart of our justice system. On 22 July 2020, the opposition hurriedly introduced a bill into parliament in response to a highly publicised criminal case, in which the offender received a 40 per cent discount for pleading guilty to sexual offending against a 10-year-old victim. No-one in our community wants to see that happen, and everybody wants to see a sense of justice being brought to those perpetrators.

The opposition has continued to suggest that we have delayed legislation. I know that I and other members, such as the member for King, do not want to see sexual offenders and other perpetrators locked up. That is absolutely outrageous and quite insensitive, given this important issue. Their bill seeks to reduce the maximum sentence discounts available, but it is silent on a number of additional recommendations, which have been incorporated into our own government's bill, which successfully passed parliament yesterday.

In short, the opposition has cherrypicked the easy-fix recommendations to reduce the sentence reductions available. As the Attorney-General outlined, when it comes to making legislation and responding to these important issues that speak to the heart of justice, it is about ensuring that we do so in a responsible, considered way, and that we think through all the consequences and implications of such legislation.

In 2019, the Hon. Brian Martin, AO QC, conducted a review of this scheme and published a report, and the opposition's bill chose to ignore the recommendations and additional issues raised in the report, which required detailed analysis and further consultation with the justice sector, which our government was more than willing to undertake. It is important to note that the sentencing reduction scheme the private member's bill seeks to address was introduced by their very own former Labor government in 2013. Clearly, they have a bit of history of introducing legislation that does not do the job, and now, in opposition, they are looking to amend their own legislation, and this is not the only case where this has occurred. The Martin report found:

the sentencing reduction scheme made victims feel devalued. This perception is further highlighted by the extent of the discount available—40 per cent;

significant reductions are also out of touch with expectations held by the broader community. This dissatisfaction is most keenly felt in relation to serious offences, especially when the prosecution case is strong; and

a significant reduction being applied to a sentence the court has determined to be appropriate suggests that the offender is not receiving the appropriate punishment.

Our own government's bill implemented the majority of the recommendations made in the report, and other issues raised, and seeks to right those wrongs. Thanks to our Attorney-General's bill, which passed in the upper house last night, offenders will no longer get a 40 per cent discount from their sentence if they enter an early guilty plea for serious crimes. The 40 per cent discount for indictable offences for an early guilty plea has resulted in far too many sentences that did not reflect the seriousness of the crime. Examples of excessive sentence discounts handed down when the previous government was in office include:

Andrew Hallcroft, in the so-called wheelie bin murder, who received a 30 per cent discount and just a 15-year non-parole period for the brutal stabbing of Allan Ryan;

Timothy James Chesterman, who sexually abused a 13-year-old boy with a mild intellectual disability, had his sentence reduced by nearly 40 per cent, from 12 years in gaol to seven years, three months. I think everyone in our community would think that seven years, three months is not an adequate sentence for anybody who sexually abuses a 13-year-old boy, or a 13-year-old girl for that matter; and

Alexander Wooldridge, who was sentenced to five years, six months for causing death by dangerous driving and had his sentence reduced to three years, four months for a fatal crash that killed four people and seriously injured another.

It is awful to reflect on those examples. Fortunately, our government has acted on the recommendations of the Martin review and is improving sentencing for such horrific crimes in line with community expectations. We have developed a system that is fairer, more in line with community standards and ensures that the courts take into account a broad range of factors when imposing a sentence and determining the appropriate reduction.

The new laws in our government bill mean that guilty pleas for some major indictable offences such as manslaughter, causing death by dangerous driving, rape and unlawful sexual intercourse would be eligible for a discount of:

up to 25 per cent, reduced from 40 per cent, where the guilty plea is entered within four weeks of the first appearance;

up to 15 per cent, reduced from 30 per cent, where the guilty plea is entered after the first four weeks but on the day of or before the committal appearance;

up to 10 per cent, reduced from 20 per cent, where the guilty plea is entered from the day after the committal appearance until the defendant is committed to stand trial;

up to 5 per cent, reduced from 15 per cent, where the guilty plea is entered between when the defendant has been committed to stand trial and immediately after the first arraignment date; and

up to 5 per cent, reduced from 10 per cent, where the guilty plea is entered prior to the commencement of the trial, where the court is satisfied that there is a good reason to do so.

The goal of the government bill is still to encourage early guilty pleas while ensuring justice is seen to be done and is done. I commend the Attorney-General on the bill passed last night, which strikes this balance.

The Hon. D.C. VAN HOLST PELLEKAAN (Stuart—Minister for Energy and Mining) (11:24): I rise to make a few short comments on this situation. We looked at this issue very carefully with regard to the broader perspective of what we believed we needed to do in government to correct what the previous government had done in this area. We also looked at the current opposition's bill in which, I guess it is fair to say, they were trying to correct what they had done when they were in government. We came to a very clear position with regard to what needed to be done, but we also determined that what the opposition was trying to do was insufficient in that regard. It was very clearly insufficient.

Two speakers before me have used the word 'cherrypicked'. I think that is a pretty fair description of what the opposition was trying to do. It is a matter of record that just yesterday a government bill on this broader topic passed both houses. It is just a fact that the government bill, led by our Attorney-General and Deputy Premier, that passed both houses was clearly superior to the one we are debating at the moment.

It is just not good enough for the opposition to throw up a bit of a scattergun approach, if you like—'We will do this and this and this'—without really thinking things through thoroughly, as the Attorney-General has done. I do understand why they wanted to undo their bad work from when they were in government previously. The idea that it is okay in anybody's mind, other than perhaps in the criminal's mind, that a person could commit a crime and by admitting their guilt to the crime and therefore speeding up justice—and, yes, there is a value on that—should be entitled to a 40 per cent discount on the sentence, just does not fly.

With regard to the bill that we are debating at the moment, yes, I understand why the opposition wanted to correct their previous mistake. Yes, I understand that this bill goes some way towards that, but it does not go nearly far enough in that regard. Mr Speaker, I am not a lawyer, as you know, and I do not ever profess to have great strength in that area, but I do believe that I know what people on the street feel.

I know that to regular mums and dads, whoever they happen to be, whether they are well off or not so well off, this is an issue that clearly is in need of repair. Regular people in South Australia, normal people just like me and everybody else in this chamber, believed it was an area that needed repair. The bill that we are debating right now does not propose to do that repair properly, and so the government opposes this bill.

Ms LUETHEN (King) (11:28): I rise also to oppose this bill. As per the statements of my colleagues, the Attorney-General and the members for Elder and Stuart, I just want to make very clear that, as promised at the last election, we have fixed a dangerous and terrible law introduced by Labor. The Labor bill is hurried and it creates another mess. We have taken advice and listened to the recommendations of Brian Martin QC and introduced a government bill which will see dangerous sex offenders locked up for longer, as they should be to keep our community safe. Laws need to be brought into this parliament that are drafted, well advised and responsible. This is exactly what we have done in successfully passing the sentencing bill in both houses to remove these discounts.

Debate adjourned on motion of Ms Hildyard.

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