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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2007-11-22 Daily Xml
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CRIMINAL LAW (SENTENCING) (VICTIMS OF CRIME) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (18:26): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

At the last election, the Rann Labor Government made a number of promises for the enhancement of victims’ rights. Some of them can be found in the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007. Others are in the Victims of Crime (Commissioner for Victims’ Rights) Amendment Act 2007 and the Statutes Amendment (Victims of Crime) Act 2007 recently passed by the Parliament.

Since coming to office in 2002, the Government has been focussed on tilting the balance in the criminal justice system in favour of victims, not criminals. The Government believes that victims are not bystanders to crime; so they should not be bystanders in the court process. This Bill is part of the pledge that victims who no longer have a voice will still be heard in court.

This Bill deals with further proposals, which require the amendment of the Criminal Law (Sentencing) Act 1988.

The first promise with which the Bill deals is this:

For the first time in our legal history, the Rann Government will give victims of crime advocates the legal right to make victim impact submissions at the sentencing hearing in cases that result in the death, or total permanent incapacity of the victim.

The second promise with which the Bill deals is this:

The Sentencing Act also will be amended to enable the prosecution to obtain, and present, community impact statements to court during sentencing submissions. The community impact statements will be used to inform the sentencing court about the effects on the community of the crimes before the court. For example, with regard to drug production or sale offences, evidence of medical professionals could be called to establish the harmful effects of drugs on individuals and the long-term health consequences of drug abuse. In cases of death by dangerous driving, expert evidence could be called to establish the human and financial cost of road deaths.

The interim Commissioner for Victims’ Rights has also asked for some legislative change. His recommendations are:

Amend the Criminal Law (Sentencing) Act to make it clear that victim impact statements can be given in person, via CCTV, audio or audio-visual recording etc. I have had several requests to cover the costs of victims coming to court to read or listen to their impact statements. This will provide another option, especially for vulnerable victims.

and

Section 52 of the Criminal Law (Sentencing) Act provides for restitution orders (i.e. a court order that the convicted offender return misappropriated property to the victim-owner). 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. The Premier and the Attorney-General pledged to strengthen victims’ rights including their right to compensation.

The purpose of this Bill is to enact these proposals.

Election Promises

First Promise

Before the 2006-2007 election, the Government promised to amend the law on victim impact statements so that the Commissioner for Victims’ Rights has the authority to make submissions at the sentencing stage (either personally or through counsel) on the impact of the crime on victims and on victims’ families in cases resulting in the death or permanent total incapacity of the victims. Funding was allocated for the Commissioner to engage counsel as part of the 2006-07 budget. The Government also proposes that victims be given rights to read their victim impact statements in cases resulting in death or permanent total incapacity as a result of non-indictable summary offences. Former MLC, the Hon Nick Xenophon had also proposed that a similar provision be incorporated in the legislation. The Government said, at that time, that this provision was best placed in the context of the entire victims-oriented reform package.

Section 7 of the Criminal Law (Sentencing) Act now obliges prosecutors to furnish particulars of any injury, loss or damage suffered by a person as a result of the offence for which the defendant was convicted or, in short, any associated offence. Section 7A allows the victim of an indictable offence to read his or her statement to a court before it passes sentence, or the victim can ask the court to permit another person to read the victim’s statement. This policy is to enact legislation to extend the right that is currently confined to indictable offences to summary offences where death or total permanent incapacity to the victim has resulted. For this purpose, ‘total and permanent incapacity’ is defined to mean: ‘the victim is permanently physically or mentally incapable of independent function’. The Bill also amends the Act to assist the giving of victim impact statements by the prosecution in minor summary offences and so that a court may require company officials to be present when a victim impact statement is given in person under section 7A of the Act.

The second pledge is to allow a victim’s advocate to read out the victim impact statement to the court on behalf of the victim. The right should be exercised by an officer of the court, an immediate family member or close relative, a person who, in the opinion of the Commissioner for Victim’s Rights, is suitable for the role, or an employee of a group or organisation devoted to victim support, or the Commissioner for Victims’ Rights (or a person acting for the Commissioner).

Second Promise

Two kinds of community impact statements are proposed. The first type is a type of collective impact statement to be called a ‘neighbourhood impact statement’. A common example is a drug dealer in a street. The neighbours suffer the effects—discarded syringes, much traffic at all hours, increased levels of street and petty property crime and so on. Under the proposal, they would be allowed to give a collective impact statement on how this drug dealing offence has affected them. The second type is more a policy-justification statement—to be called a ‘social impact statement’. In the drug dealing instance, evidence could be given of the harmful effects of drugs generally or this drug in particular (for example). The Bill proposes that both kinds of statements can potentially be given in a sentencing hearing for any offence. It should be possible to collate the statements of individuals into a group statement. The Bill proposes that the provision of these statements be up to the Commissioner for Victims’ Rights and that the prosecution or the Commissioner be authorised to place the material before the court.

Commissioner for Victims’ Rights Suggestions

First Suggestion

Section 7A(3a) of the Criminal Law (Sentencing) Act says: that if the court considers there is good reason to do so, it may exercise any of the powers that it has with regard to a vulnerable witness to assist a victim who wishes to read out a victim-impact statement to the court. This suffices to bring CCTV into play. But the Act should be amended so that it is possible for victim-impact statements to be given via audio or audio-visual recording where there are facilities available for the purpose. The defendant should be present except where the court is satisfied that a real threat has or is being made to the safety of the defendant or the defendant’s representatives or family or where the presence of the defendant will otherwise cause undue disruption. In such cases, the court is authorised to take such steps as are available to it to ensure that the offender is exposed to the message of the victim-impact statement.

Second Suggestion

Section 53 of the Criminal Law (Sentencing) Act provides for orders for compensation on sentence. That sum is defined to be a pecuniary sum and therefore can be enforced in the same way as any order for a pecuniary sum—that is—effectively as a fine. Section 52 of the Act is different. It is about giving back particular property, not a sum of money. This is about returning the particular item stolen (for example). It follows that this cannot be defined as an order for a payment of a pecuniary sum and cannot be enforced in that way. The Criminal Law (Sentencing) Act deals with the matter by providing for default imprisonment. The Commissioner for Victims’ Rights says that this does not work effectively. In some ways that is not surprising, since the analogous old method of collecting pecuniary sums by default imprisonment did not work well either—which is why it was replaced. The Bill will add remedies for restitution orders short of imprisonment. The Bill will give an authorised officer of the Court authority to seize and remove the property where there is default on the order, or quantify the order so that it may be enforced as a pecuniary sum. Once that is done, all the remedies of fine enforcement come into play.

This is the third Bill that forms part of a victims oriented package of reforms to carry out the Rann Government’s pledge to increase victims’ rights in our justice system.

I commend the Bill to members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law (Sentencing) Act 1988

4—Amendment of section 6—Determination of sentence

This clause amends section 6 to make it clear that in sentencing proceedings the court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

5—Amendment of section 7—Prosecutor to furnish particulars of victim's injury etc

This amendment makes it clear that a court dealing with an offence that is not an offence to which section 7A applies may nevertheless, if it considers it appropriate, allow particulars to be furnished in the form of a victim impact statement.

6—Amendment of section 7A—Victim impact statements

This clause amends section 7A of the principal Act in several ways. The inclusion of new subsections (3a), (3b) and (3c) enable a court to assist a person who wishes to read out a victim impact statement to the court to do so by means of a prerecorded reading of their statement, or to exercise the powers the court has in relation to vulnerable witnesses. Subsection (3b) requires that the court ensure that the defendant (or, where the defendant is a body corporate, a representative of the defendant) is present when the statement is read out to the court if the person providing the statement so requests. Under subsection (3c), the court may decline to do so for reasons set out in the provision, but in such a case the court must nevertheless endeavour to ensure the defendant hears the statement being read out via audiovisual link or audiolink or, if that is not possible, by making an audiovisual recording.

The clause also amends the section to enable an appropriate representative (a definition of which is included in new subsection (5)) to request that a statement be allowed to be read out in court and read out such a statement following a request.

The range of offences for which a victim impact statement can be provided is also extended to include certain summary offences (namely one that results in the death of a victim or a victim suffering total incapacity).

7—Insertion of sections 7B and 7C

This clause inserts new section 7B into the principal Act, providing for written community impact statements to be provided to the court. The Commissioner for Victim's Rights is responsible for compiling a statement under the section, and either the prosecution or the Commissioner may provide a sentencing court with the statement.

The statements consist of 2 types. The first is a neighbourhood impact statement, which is a statement about the effect of the offence, or of offences of the same kind, on people living or working in the location in which the offence was committed. The second type is a social impact statement, setting out the effect of the offence, or of offences of the same kind, on the community generally or on any particular sections of the community.

The clause also sets out procedural matters related to the provision, and reading in court, of such statements.

New section 7C provides for the making of rules relating to statements under sections 7A and 7B, provides for a copy of such a statement to be made available to the defendant or his or her counsel and makes it clear that the defendant is entitled to make submissions to the court in relation to the statement.

8—Insertion of Part 9 Division 2A

This clause inserts new Part 9 Division 2A into the Act. The Division provides for action by authorised officers in the situation where a restitution order under the Act is not complied with. The clause sets out the actions that can be undertaken (including seizure of the property or payment of an equivalent amount by the defendant) and the powers an authorised officer can exercise in doing so.

Debate adjourned on motion of Hon. D.W. Ridgway.

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