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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 (Reduction of Sentences) Amendment Bill

Introduction and First Reading

Mr MALINAUSKAS (Croydon—Leader of the Opposition) (10:32): Obtained leave and introduced a bill for an act to amend the Sentencing Act 2017. Read a first time.

Standing Orders Suspension

Mr MALINAUSKAS (Croydon—Leader of the Opposition) (10:32): I move:

That standing orders be so far suspended as to enable the bill to pass through all remaining stages without delay.

The house divided on the motion:

Ayes 21

Noes 23

Majority 2

AYES
Bedford, F.E. Bettison, Z.L. Bignell, L.W.K.
Boyer, B.I. Brock, G.G. Brown, M.E. (teller)
Close, S.E. Cook, N.F. Gee, J.P.
Hildyard, K.A. Hughes, E.J. Koutsantonis, A.
Malinauskas, P. Michaels, A. Mullighan, S.C.
Odenwalder, L.K. Piccolo, A. Picton, C.J.
Stinson, J.M. Szakacs, J.K. Wortley, D.
NOES
Basham, D.K.B. Chapman, V.A. Cowdrey, M.J.
Cregan, D. Ellis, F.J. Gardner, J.A.W.
Harvey, R.M. (teller) Knoll, S.K. Luethen, P.
Marshall, S.S. McBride, N. Murray, S.
Patterson, S.J.R. Pederick, A.S. Pisoni, D.G.
Power, C. Sanderson, R. Speirs, D.J.
Teague, J.B. Treloar, P.A. van Holst Pellekaan, D.C.
Whetstone, T.J. Wingard, C.L.

Motion thus negatived.

Second Reading

Mr MALINAUSKAS (Croydon—Leader of the Opposition) (10:39): I move:

That this bill be now read a second time.

I rise to talk to the Sentencing (Reduction of Sentences) Amendment Bill, which the South Australian parliamentary Labor Party believes should be an absolute priority of the parliament. I would like to put on the record our disappointment that the government decided to vote against the suspension of standing orders so as to enable the swift passage of this bill through the parliament.

We on this side of the chamber believe that nothing is more important than our obligation to protect the children within our community. Nothing is more important than providing parents with the confidence that their parliamentarians—the people in positions of leadership—are acting swiftly and expeditiously to make sure that the laws of the land are strong and protect everybody against those who would do them harm.

That obligation goes beyond the protection of children; it goes to protecting the community against other would-be offenders of serious categories of offences. I think that is particularly pertinent in light of recent stories that have appeared in the media and shocked many South Australians and concerned us all. The objectives of the bill are simple: community safety and confidence in our justice system. It achieves these objectives by reforming the current sentencing reduction scheme set out in section 40 of the Sentencing Act 2017. This scheme applies when an offender pleads guilty to an offence and the matter does not go to trial.

Offenders can receive a discount of up to 40 per cent, with the amount reducing in steps down to 10 per cent depending on how early a person pleads guilty. This bill will reduce the maximum level of discount by five percentage points across the board for guilty pleas to indictable offences. For the most serious offences, the bill goes even further by reducing the discount by another 10 percentage points. This means that child sex offenders like Mr Bahrami can only receive a 25 per cent discount instead of a 40 per cent discount.

This serious category will include murder, rape, causing death or serious injury by use of a vehicle, and sexual offences. Most importantly, it will cover sexual offences against children and the sexual exploitation of children. The recent sentence handed down to Mr Bahrami for the aggravated indecent assault of a 10-year-old girl is a tragic illustration. Bahrami will be entitled to release around April 2022. We cannot afford for this to be repeated. Not only that, but this is an example that should never have happened.

The government has sat on the report of a retired Supreme Court justice for more than one year. This Attorney-General has sat on this report for more than one year. She has somehow tried to blame COVID-19 as an excuse for this, but COVID-19 has not prevented the Attorney-General from prioritising the ability of SCs to change their titles to QCs. This matter, however, somehow escapes the ability of the Attorney-General to respond to that report.

It was only after Labor announced that it would legislate and sent a copy of our bill to the government that it promised to do the same. Yet again, the Attorney-General is following the lead of Labor; however, we still have not seen the government's bill. This is just another example of all talk from an Attorney-General who prefers to deal with gift card legislation and titles for senior lawyers rather than community safety. The community expects and deserves better.

Labor has brought this bill because the government has failed to act on this issue and bring its own bill to the parliament. The government has a report that it commissioned in September 2018 and was provided to the Attorney-General in June 2019. What Labor seeks to do in this bill is act on the recommendations of the government's own report.

The report was prepared by the experienced and well-respected Brian Martin QC. Mr Martin holds an Order of Australia, is a former judge of the Supreme Court of South Australia and later a chief justice of the Northern Territory. The report makes 12 recommendations for changes to the Sentencing Act and those changes encompass a wholesale reduction of discounts. In the report, Mr Martin makes the following observation:

It is apparent from my conclusions that, in my view, the sentence reduction scheme is not meeting community expectations and is a source of disquiet among reasonably minded members of the community. Further, in respect of major indictable matters, the scheme has not achieved the appropriate balance between the benefit to the community of an early plea of guilty, and the need to ensure that offenders are adequately punished and held accountable to the community. However, it must be recognised that the disenchantment with the current maximum percentages is primarily experienced in cases of serious crimes.

The report also considers that the current maximum is too high and states:

…there is a widespread view within the community that, put simply, 40% is too high. This is a major source of distress for victims.

What has the government and, in particular, the Attorney-General done with this report and its 12 recommendations? The short answer is absolutely nothing. Apparently, they are consulting on a draft bill and the Attorney-General, as I said, claims that COVID-19 is the source of the delay. Where are the priorities from the Attorney-General in regard to community safety? Labor has supported the government at every turn in other areas.

The Attorney-General is pressing ahead with the Legal Practitioners (Senior and Queen's Counsel) Amendment Bill 2020 because there is potential confusion about titles for senior lawyers. During the COVID-19 period, most bill briefings from the government have involved a videoconference with a ministerial staffer and a representative from the department. For that bill, the Attorney-General walked from her ministerial suite on Pirie Street to Parliament House to personally assure the opposition that the bill was not her priority. The bill was not her priority, yet it demanded her walking from Pirie Street to parliament to make that statement.

The government then sought to progress that bill at every opportunity—so prioritising changing titles while community safety comes second. She has made no mention of reports from retired judges about sentencing reform. This shows the government's true colours: if you are a group of well-connected professionals, then you get a bill into parliament ASAP, but if you are a victim of a child sex offence the perpetrator can get out early because the government has other priorities.

Instead of acting on a report that gathered dust in her in-tray for more than a year, the Attorney-General took the extraordinary step of blaming judges. She called out judges, and I quote:

…for failing to exercise flexibility in sentencing and giving criminals 40 per cent discounts almost without exception.

It is a brave Attorney-General who criticises the judiciary when she could have fixed the problem at any time in the past year. We have seen the government this week blame administrative errors for potentially illegally claiming tens of thousands of dollars in taxpayer funds, but they are just following the Attorney's example of not taking personal responsibility for their actions.

The Martin report recognised that sentencing judges require some additional guidance in implementing the sentencing reduction scheme and made recommendations to that effect. Labor's bill acts on these recommendations. This means that, even when offenders plead guilty early enough to qualify for the lower maximum of 25 per cent, they may get less. The bill requires consideration of matters such as the offender's reason for pleading, the strength of the prosecution care and prior offending.

Finally, on the recommendation of Brian Martin, the bill empowers the court to increase the percentage reduction by up to 5 per cent in rare and exceptional circumstances. Again, consistent with the expert advice, the new reductions will only apply to the District Court and Supreme Court, which hear indictable offences. The Magistrates Court will retain the current maximum discount levels for less serious summary matters.

The government has an opportunity to fix this today. By passing this bill, Labor seeks to prevent another appalling sentencing outcome like the Bahrami case. If the parliament supports the bill, we can achieve this by the end of the week, before we rise for the winter break. If the government is against us on this bill, then it is on their heads if another case like Bahrami comes before the courts before this is fixed. Labor told the community our plan. Labor gave our bill to the government. Labor is standing here today to protect the community. All we need is the government to stand up and support sensible reforms to protect our children and our community.

Upon the advice of the shadow attorney-general, I took the rather unpleasant step of familiarising myself with some of the tragic detail of what occurred in the Bahrami case. I do not intend to explain that or put it on the record in this house because it is sincerely too tragic to mention. All of us in this place, particularly those of us who are parents, understand that children should never be subjected to the sort of horrific crime and tragedy that occurred in a set of Kilburn toilets.

We cannot undo that tragedy, but what we can do is go a long way to making sure that it does not happen again. That is our solemn obligation. That is what that the people in this community expect of us. It was unfortunate to read in the judge's sentencing remarks a reference to his concern that there was a prospect of reoffending occurring in this matter, which begs the question: how can someone get out in potentially less than two years' time?

If you were familiar with what Bahrami did, if you were familiar with the depth of the tragedy that has been imposed upon that 10-year-old girl and others who were made to witness that event, if you were familiar with the fact that the judge is concerned about the risk of reoffending, and you were familiar with the fact that that is all culminating in a potential risk being realised to the community in fewer than two years' time through the release of this individual, then you would feel absolutely compelled to act on this legislation today because any delay is a denial of the tragic reality that this yet may happen again.

These horrific crimes happen and when they happen the parliament needs to be able to say to itself quite honestly that it has done everything it possibly can to ensure that those individuals are in gaol for as long as possible, under the law, to ensure that the community is protected. I have less interest in the desire for retribution than I have in community protection: this government's responsibility, this Attorney-General's solemn obligation to the people who she claims to represent. There is no good reason to not pass this bill today. It is the government's own report that has underpinned the development of this bill. It should be completely bipartisan.

The Attorney-General has put on the public record that she wants to do something about this—well, now she has that chance. She has sat on her hands for in excess of 12 months. She has talked a good game when it became an issue in the media, but now is her opportunity to show her true colours: vote for this bill all the way through, right here and now.

Put the law of the land in place so that people like Bahrami, when they offend again in a serious manner, cannot find themselves released with a 40 per cent discount. Empower the courts to do their job to keep our community safe and we can all go home and rest easy in the knowledge that we have done our jobs. Anything less is a failure of that duty. We will not have it on this side of house; the choice is now yours. I commend the bill to the house.

The Hon. V.A. CHAPMAN: I will make a few brief remarks in relation to why the government will not be supporting this bill.

The SPEAKER: Attorney-General, as per standing order 238—

Members interjecting:

The SPEAKER: Please, members! After the bill is published, the second reading may be moved at once or made an order of the day for a later time. The second reading of the bill is moved immediately after its first reading since the suspension of standing orders did not get up. The debate on the bill is at once adjourned until a future day. So, at this point in time, we must adjourn.

The Hon. V.A. CHAPMAN: Okay, I am happy with that. Thank you.

The Hon. S.C. Mullighan: The library has some Benny Hill music, if you'd like me to get it for you.

The SPEAKER: Member for Lee, I am trying to sort this out, thank you.

Debate adjourned on motion of Mr Pederick.

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