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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-02-14 Daily Xml
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CRIMINAL LAW (SENTENCING) (VICTIMS OF CRIME) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 13 February 2008. Page 1694.)

The Hon. S.G. WADE (17:38): This bill amends the law dealing with the sentencing in criminal cases and continues South Australia's journey to develop the law so that victims are positively involved in criminal cases. This is to the benefit of all parties. For the victim, their involvement recognises the fact that the crime has an enduring impact on them and often assists them to recover from and minimise the impact of that crime.

For the offender, victim involvement can often bring home the reality of what they have done and be a first step towards rehabilitation. For the judiciary, victim involvement ensures that judges are properly informed of all relevant facts so that they might more wisely wield the sanctions of the criminal law to promote justice and community safety. For society, victim involvement is important to help maintain balance in the criminal justice system and promote a healthier, safer community.

The criminal justice system is not a genteel jurisdiction but, as history tells us, once the system is undermined, civil society becomes increasingly brutalised. I am extremely concerned by this government's willingness to reflect on the judiciary and the legal profession and the damage it is doing to the criminal justice system and, therefore, in due course to victims.

Sometimes the government makes attacks, other times it allows attacks. Earlier this week, the Hon. Dennis Hood acted honourably by apologising for statements he made in an explanation to a question last year. I await an apology from the Attorney-General. As the chief law officer of this state, the Attorney-General has the responsibility to maintain and protect our judicial institutions. Following the Hon. Dennis Hood's comments, the Courts Administration Authority immediately issued a statement indicating that the attack was based on incorrect information. However, in his response, the Attorney chose not to highlight this fact and, instead, he said repeatedly that the DPP would appeal the sentence if it was felt to be inadequate, reminding listeners that 'when the public was outraged by the case of Paul Habib Nemer, the government decided to instruct the DPP to appeal against the sentence in that case and, eventually, Nemer served a term of imprisonment'.

In the furore that ensued, I could find only one reference to the Attorney-General citing the facts. The facts put paid to the suggestion of leniency, but the Attorney-General kept the issue alive by raising the prospect of DPP action, which could only be taken in relation to the case decided that day, not the other cases referred to.

I would certainly not want the Attorney-General defending me in a court of law. Rather than give the court my watertight alibi, he would be more likely to go straight to making a plea bargain. In the other place, in speaking to this bill, on the very day of Justice Shaw's sentencing, the member for Hammond made some very thoughtful remarks on the issue of general deterrence and the fact that judicial sentencing should not be driven by the media. In summing up the second reading debate on this bill, on that afternoon, the Attorney-General said, 'In light of Judge Shaw's sentencing today, I am sure the media will find the member for Hammond's remarks most enlightening'. What an outrageous remark! The Attorney-General was eagerly awaiting a media scrum, which could only have oxygen in the absence of the facts. The community would be better served and safer if the Attorney-General gave less attention to how issues can be spun in the media and more attention to the law, justice and the interests of victims.

The government's persistent failure to uphold the judiciary and the legal profession does the victims of crime no service. Because of the government's approach, victims are more likely to lack confidence in the independence and impartiality of the judiciary. They may well come to believe that judges are biased in favour of the offender. They are less likely to feel that justice has been done and they are less likely to get closure and heal from the ordeal.

I note the recognition in the explanatory notes that the Hon. Nick Xenophon also proposed legislation with similar provisions to those incorporated in this bill. The government said at the time that the Hon. Nick Xenophon's amendments were best placed in the context of the entire victim-oriented reform bill. This bill is relatively straightforward. The government is simply not willing to acknowledge that any good idea could come from the opposition benches. As usual the government says no.

Government members remind me of Carol Beer, the travel agent in the television series Little Britain. Her standard reply to customers when they ask questions is to type something into her computer and flatly reply 'Computer says no'. When the customer decides to leave, she coughs at them. In this place, almost every time a hapless government backbencher rises to speak on a private member's bill, they say 'Government says no'. This government's arrogance means that it is pathologically unable to engage in the collective elements of the legislative process. For them it is just about crunching numbers and managing the media.

I turn now to the detail of the bill. It proposes four changes to the law. First, in relation to summary offences in the event of death or incapacity, the bill proposes that prosecutors must (and victims or their representatives may) read the victim's impact statement not only in indictable offences, as is the case currently, but also in cases resulting in death or permanent incapacity as a result of non-indictable summary offences.

Secondly, the bill provides that a victim can have an appropriate representative to read out the victim impact statement to the court on their behalf. As shadow minister for disability, I welcome the introduction of these provisions. While these provisions are available to any South Australian who finds themselves to be a victim of crime, I expect that they will be particularly pertinent for South Australians with a disability. I look forward to the opportunity to explore these provisions in more detail in committee.

Thirdly, the bill provides for community impact statements. The community impact statements will be used to inform the sentencing court about the effects on the community of the crimes before the court. The bill anticipates that there will be two types of statements: a neighbourhood impact statement and a social impact statement. The bill proposes that both kinds of statements can potentially be given in relation to the same sentence hearing for the same offence. It should be possible to collate the statements of individuals into a group statement. Government documents suggest that such statements will be prepared by the Commissioner for Victims' Rights. I share the concerns of the Hon. Dennis Hood over the possibility that these statements might develop into pro formas. The opposition is willing to support this element of the bill, but the opposition will also be keen to monitor its practical implementation.

Fourthly, the bill provides for the indirect delivery of victim impact statements. The bill enacts an amendment suggested by the Commissioner for Victims' Right to make clear that the victim impact statements can be given in person or, alternatively, via closed-circuit television, audio or other audio-visual recording. The government advises that it has received several requests to cover the costs of victims coming to court to read or listen to their impact statements, and the government suggests that this amendment will provide another option, especially for vulnerable victims. I am concerned that this clarification not be used to discourage personal attendance of the victims because, for many victims, that would serve to dilute the benefit of a victim impact statement.

At the conclusion of the second reading I would appreciate the minister's advice as to how much is currently allocated to enable victims to appear personally at criminal sentencing hearings. In addition, I seek an assurance from the government that it will increase, or at least maintain, the funds currently available to victims to personally appear at trials.

Fifthly, the bill provides for restitution orders. Apparently, this innovation was also suggested by the Commissioner for Victims' Rights. The bill provides for restitution orders. Unlike section 53, which provides for compensation orders that can be enforced like any other pecuniary order, an order made under section 52 appears to be unenforceable, and the bills seeks to address this. In closing, I reiterate that the opposition supports the bill and looks forward to exploring some of the issues it raises at the committee stage.

Debate adjourned on motion of Hon. J. Gazzola.

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