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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-02-12 Daily Xml
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CRIMINAL LAW (SENTENCING) (VICTIMS OF CRIME) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 22 November 2007. Page 1587.)

The Hon. D.G.E. HOOD (17:54): It will come as little surprise to members that Family First supports this bill. I have said on many occasions that Family First and I will support any legislation that empowers victims of crime. In fact, I have personally attended court with victims on numerous occasions and helped them in parliament or in publicising their case as necessary and, of course, I am happy to do so.

The plain truth is that victims still often feel powerless and totally left out of the court process. In earlier years that was not necessarily the case. In fact, I read recently that there were no public prosecutions for most crimes in England before the 19th century. Instead, the victim, or a relative of the victim, would ordinarily initiate proceedings. Police forces began to form in England from about 1829 onwards, as policing law and order was increasingly seen as the role of the state. In 1823, a British statute first gave the attorney-general in the New South Wales colony power to prosecute crimes and misdemeanours on behalf of the state, and we inherited that some time later.

So, the initial system, with its many faults, gave the victim a powerful say in determining justice and in resolving their case. That simple system changed, of course—and perhaps necessarily. However, in the process, few could argue that victims would not have been silenced as their rights were subsumed by police prosecutors and the DPP.

Some victims complain that the legal system has ignored their submissions, or even held them in contempt, as their pain and suffering is put through an untouchable and unsympathetic machine called the South Australian court system. There is considerable force in saying that victims should be able to have a direct voice in the criminal court.

Family First strongly supports the use of victim impact statements and any expansion of a victim's voice to put it nearer to parity with the strong voice a defendant has in our courts today. Members should recall that defendants can choose to represent themselves in court, choose their legal representation and, in fact, direct their legal representative to make certain submissions or take their defence down a certain course. Victims do not have that luxury and, in many ways, are subject to the discretion of the police and the DPP.

This bill expands the scope of a victim's ability to place their submissions before the court, making it clear in clause 6 that such evidence can be given by CCTV or, indeed, by recording. Some members have referred to the wording in the bill that makes it clear that, where possible, the defendant must be present when a victim impact statement is read. I note that some judges, including Judge Barrett, make a habit of seeking a response from the defendant to the victim's impact statement. Anything that provides an offender something of an insight into the damage that he or she has caused is certainly a good thing, and I commend the judge on that.

In fact, this bill does not change the law significantly in that regard. Since 2001, section 9B of the Criminal Law (Sentencing) Act has required the defendant to be present 'throughout all proceedings relevant to the determination of sentence'. This provision was rushed through after Peter Liddy infamously refused to listen to any of his victims' impact statements. One of his victims had travelled from interstate and one had travelled from the country, and they were unable to read their statements. They described Liddy's move as 'woeful and disgusting'. They were completely correct in their observation.

I also regard community impact statements in clause 7B as important. There are many crimes in our community where there is no apparent or direct victim. For example, someone caught cultivating a large cannabis crop may not have directly injured one particular person, and this may be the reason why cultivation of up to 10 cannabis plants for personal use results in only a $500 fine. I have introduced a private member's bill to rectify this.

In sentencing in drug offences, there is rarely a victim who will jump up and down against the penalty imposed, but offences such as drug cultivation cause crime and damage to the whole community, and it is completely appropriate that community organisations (perhaps local Neighbourhood Watch groups) should be able to make appropriate submissions, whether or not anyone was directly or personally impacted.

One thing we would not want to see is pro forma victim of community impact statements. DPP prosecutors should not feel compelled to tender something from a stack of pro forma community impact statements on various topics. For example, we would not want to see the same photocopied pro forma anti-speeding community impact statement read out in court following every dangerous driving trial. It would be a waste of court time and simply slow down an already very slow court process and system. The DPP may have to make some procedural decisions in that regard.

About a week ago I had a terrific meeting with the Commissioner for Victims' Rights, Michael O'Connell (previously the victim of crime coordinator). It is terrific that we have someone with his skills and dedication in the role. As members will be aware, he played a major part in the drafting of this bill and was keen that Family First supported the measures. I am indeed happy to do so and advise that Family First supports the second reading of the bill.

The Hon. A. BRESSINGTON (17:59): I rise to support the Criminal Law (Sentencing) (Victims Of Crime) Amendment Bill. No doubt many of us in this place have at some time in our lives experienced being a victim of a crime, either by being personally affected or knowing of a family member, colleague or friend who has been directly a victim. Crimes can have a troubling impact at the lower end of the spectrum, such as theft of property, and at the more serious end can have a traumatic and devastating impact, such as those cases where physical violence has occurred.

I support any legislation that strengthens and supports the rights of victims and enables offenders an opportunity to truly grasp the gravity and magnitude of their offending. However, I have two problems with this bill. First, it is restricted to those who have been the victim of a sexual offence or to an appropriate representative such as a relative of a victim killed or incapacitated in the course of a crime. Secondly, the bill acknowledges the victim only once their matter is placed before the courts, which is all fair and well if as a victim you are one of the unlucky few whose case is serious enough to warrant the police resources of detection and investigation to bring a sound, if not watertight, case to the courtroom in the first instance.

Unfortunately, I have discovered that many victims in the community are not acknowledged as being victims at the very beginning of the process when they have first sustained an injury or a loss. Similarly, there are countless crimes in which the consequences to the victim may be so enormous as to affect them forever. This bill offers nothing to the family of six whose $40,000 van is written off due to vandalism, or the parents of a runaway teenager who has been supplied drugs by a local dealer.

Since August last year, a member of my staff was a victim of what appeared to be petty theft, predominantly of CDs, DVDs and mobile phones, amongst an array of other small household items. The offender was well-known to the staff member and a frequent visitor to their home. Although personal items, including jewellery, were stolen, no one item was worth more than $200 and, as the theft took place over some months, it was difficult to prove that the items had been stolen, as opposed to lost, and who had actually stolen the items in that time.

In fact, when the staff member made a police report it was made clear that the police considered the theft to be petty crime and barely worth providing resources to pursue it. It was not until a unique and personal item was identified at a pawn shop linking the item to the staff member and the suspect that the size of her offending became apparent. The staff member had lost goods valued at over $5,000 made up of small items.

Since that time two other victims of the offender have been identified but not before the staff member had to carry out her own research and policing to prove who the offender was, what had been stolen, where the items had likely been sold, and over what period of time and on what dates. In fact, more than two weeks after the initial report and proof of the stolen items were supplied to the police, the police did not interview the suspect, arrest her nor search her premises for other stolen goods likely to have been in her possession (one of which would have been a video camera stolen from my office and purchased on my global account).

What is more, my staff member had to effectively coerce the original investigating officer to do his job, often under a great deal of duress, and only to be told that he could not tell the victim how the investigation was progressing and at what point they were in their investigation. At other times during this process the victim was made to feel that she was obliged to justify why they were conducting their own investigations into the theft in the first place, which included buying back stolen items that remained on sale in the pawn shop for four days after police should have routinely required the pawn shop to cease trading in those items. So much for victims' rights!

In fact, when this victim pointed out to the investigating officer that the investigation thus far was so poor that it was doubtful that the police had the will to charge the offender and that, even if police were to charge the offender, a conviction would not stick due to the massive holes in their chain of evidence, the officer became indignant and berated the victim for telling him how to do his job rather than being motivated to do it competently. The state of play currently is that the victim is left with a potentially watertight case that has been undermined significantly by a half-hearted, sloppy and inept police investigation.

The range of excuses given have been the typical ones: 'We are under-resourced and understaffed,' 'We have other priorities,' and 'It's been too hot to go out and get statements from witnesses and other victims.' So, again, the prosecution of this offender is doomed never to succeed, despite the police being supplied with proof of the fact that a crime had been committed; the known residential addresses and other contact details of the offender; many dates when the offences had been committed; names and identifying details of the offender's other victims; and even pawn shop dockets with her name and address on them, showing that she had traded in these stolen goods, which were provided to us by four pawn shop owners and handed over to the police. In fact, it would be fair to say that the majority of victims in the community are rarely able to supply such extensive information about the crimes committed against them.

Although many weeks have passed since the theft was first reported, it was only after a change of investigating officers to one more conscientious and motivated to do his job (after, of course, my staff member mentioning that we would take this to another level) that two of the offender's victims finally had a small number of goods returned. However, many others have not been returned; in fact, some of the other items that were eventually returned were items that the victim had not even realised had been stolen.

Some of those items even carried the victim's name, address and telephone number and, clearly, it had not been followed up by questioning the pawn shop owner, who was clearly happy to receive the goods without further question. In the case that I have described, the victim is not interested in punishing the offender, but has offered to assist them with rehabilitation and counselling. However, as the victim is not recognised by the system as a victim, the opportunity will elude them and deny the offender the knowledge that she can have access to possibly the closest next of kin she has known since childhood.

I would also like to place on the record the details of the video camera that was stolen from my office by the same person. It was up to my office to circulate the serial number of that video camera. I was under the impression that the police had a screen that they could pull up in their office from which they could check the serial number of stolen electronic equipment such as this and be able to trace which pawn shop it was registered at to be sold. No such investigation took place. As a matter of fact, I was told that, if I wanted to take this any further, I would have to hire a lawyer and pursue any sort of charge in the civil jurisdiction of the courts, which I find quite amazing.

The camera was worth almost $1,000 and it was bought on my global account. We ended up having to travel down to Noarlunga to pick up the docket and the camera and return them to the police. Again, the excuse given was that it had just been way too hot to go out and do this sort of policing and, 'We are understaffed and under-resourced, and we just have far better things to do with our time, really.' I find that absolutely unacceptable. I would think that anything stolen from this place, in particular, would be considered to be a serious offence and pursued with the evidence, without the threat of having to go to the media to get some sort of action taken with respect to it.

An honourable member interjecting:

The PRESIDENT: Order! I remind the member that it is the responsibility of members not to let people walk willy-nilly around Parliament House unsupervised.

The Hon. A. BRESSINGTON: That was not the case.

The PRESIDENT: Quite often a number of strangers walk around Parliament House unsupervised.

The Hon. A. BRESSINGTON: That was not the case. She was contained in my office.

The PRESIDENT: I am taking the opportunity to inform all members that there are too many people walking around Parliament House unsupervised.

The Hon. A. BRESSINGTON: That was not the case.

The PRESIDENT: The member is saying that the video was stolen from under her nose.

The Hon. A. BRESSINGTON: A staff member left my office to get her a drink of water. She got into my cupboard and stole the video. That is not the issue. The issue is the fact that we had the serial number and we reported the serial number to the police. There was no follow-up and no investigation, and it was left up to my staff to track down that serial number, travel to Noarlunga, pick up the camera and docket, and drop it off to the police. That is the issue: it is not whether people were walking around unsupervised.

The PRESIDENT: The issue is that we all have a responsibility, not just the police.

The Hon. A. BRESSINGTON: I accept that. If she was left wandering around my office I would not bring up this issue; but she wasn't. Following the passage of this bill, I hope the police minister will take considerable time to examine more closely the police policies and procedures which are serving to delay, protract and inhibit the detection and conviction of offenders—much more so than promising to involve a small and exclusive group of victims whose injuries and losses have been validated by a court in some token capacity—so that all victims are given the opportunity to inform the offender of the gravity and magnitude of their offending.

Debate adjourned on motion of Hon. J. Gazzola.

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