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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-02-05 Daily Xml
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STATUTES AMENDMENT (VICTIMS OF CRIME) BILL

Second Reading

Second reading.

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (16:46): 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 Government made pledges to improve victims' rights. Some of them have already been enacted in the Statutes Amendment (Victims of Crime) Act 2007 and the Victims of Crime (Commissioner for Victims' Rights) Amendment Act 2007. Others were enacted in the Criminal Law (Sentencing) (Dangerous Offenders) Amendment Act 2007.

The remaining pledges are:

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 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 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 CCT., 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.

Section 52 of the Criminal Law (Sentencing) Act provides for restitution orders (i.e. 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. Making it clear how section 52 will be enforced might alleviate some of the pressure to amend the compensation laws.

The Criminal Law (Sentencing) (Victims) of Crime) Amendment Bill 2007 was introduced into Parliament on 24 October 2007. The Bill was laid aside on 19 June 2008.

The Government proposes to re-introduce the Bill with changes.

Election Pledges

First Pledge

The first pledge contains two policies:

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. It follows that 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. The reason for this is some prominent cases where the relevant offence has been reckless or negligent driving and death has resulted. It should be noted that it would also apply to, for example, industrial accidents constituting summary offences under workplace-safety law. The Bill has also been amended to take account of a submission put by the Minister for Industrial Relations so that victim impact statements in occupational health, safety and welfare prosecutions may be given 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 defendant is required to be present, but where the court is satisfied that a threat to the defendant or the victim has been made, the court should make special arrangements for this process. For these purposes, 'total and permanent incapacity' is defined to mean: 'the victim is permanently physically or mentally incapable of independent function'.

The Government now proposes an addition to this amendment. The addition is that section 7 of the Criminal Law (Sentencing) Act be amended to state that a court, when asked to allow a victim of violent offences to read his or her impact statement, should be encouraged to do so. The onus is on the court to exercise discretion in favour of the request. If the court chooses not to allow a victim to read his or her statement then the court should state its reasons, so the reason can be given to that victim should he or she ask.

The second policy was to allow a victim's advocate to read out the victim impact statement to the court on behalf of the victim. The Government has decided to broaden this policy and I will outline what is proposed about that later in this speech.

Second Pledge

Two kinds of community-impact statements are proposed. The first type is a collective statement of harm, to be called a neighbourhood-impact statement. A common example is a drug dealer in a street. The neighbours suffer the effects—discarded syringes, lots of 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 (for example). It was intended that the election policy promise would deal with the enactment of provisions for both types. The Government 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 many individuals into a group statement. The Government 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: '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 is equipment available for the purpose. The defendant should be present except in a case 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 a case, the court is authorised to make arrangements for the offender to be present by electronic or other means.

Second Suggestion

Section 53 of the Criminal Law (Sentencing) Act is the order for compensation upon 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. 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 Government proposes to add remedies for restitution orders short of imprisonment. The Government proposes to give an authorised officer the power to enter land and seize the property in question, or to cause the value to be enforced as a pecuniary sum, which means that remedies such as (for example) suspension of driver's licence and dealings with the Registrar of Motor Vehicles.

Additional Government Amendments

The Government has decided to take this opportunity to remedy some other injustices or matters affecting victims' rights that have been brought to its attention since the former Bill was introduced into Parliament.

it is proposed that the Criminal Law (Sentencing) Act be amended to allow victims to suggest a sentence, if they choose, in their impact statement. The court could take notice of the suggestion, as it does take notice of the prosecutor's and defence counsel's submissions on an appropriate sentence. The court simply takes the request into account but is not compelled to act as requested by any party.

it has been brought to the Government's attention by the DPP that there is a deficiency in the right of a victim to make a victim-impact statement where the accused is found unfit to stand trial or not guilty by reason of mental impairment. The current legislation contains provision for determining the view of the 'victim'. Section 269R of the Criminal Law Consolidation Act says:

269R—Report on attitudes of victims, next of kin etc

(1) For the purpose of assisting the court to determine proceedings under this Division, the Crown must provide the court with a report setting out, so far as reasonably ascertainable, the views of—

(a) the next of kin of the defendant; and

(b) the victim (if any) of the defendant's conduct; and

(c) if a victim was killed as a result of the defendant's conduct—the next of kin of the victim.

The DPP has argued that the 'victim' should have the same rights as the usual victim to prepare his or her own statement and to read it out to the Court. The Government agrees with the DPP that there is a rough equivalence between the disposition phase of the hearing and a sentencing hearing. But these defendants/accused are in a different position from the normal defendants. They may suffer from a very significant mental illness or intellectual disability. There is little point in subjecting such people to the reading out of a victim impact statement (although, of course, the court may be appropriately informed, as is now the case). In my opinion, there is only benefit in allowing the elocution of a victim impact statement where there is some prospect that the defendant/accused will understand it to an appreciable degree. The usual absolute right must therefore be subject to an overriding judicial discretion.

The Commissioner for Victims' Rights and the Crown Solicitor have brought to the Government's attention the need to amend the law to prevent a prisoner from taking civil action against a registered victim who makes submissions to the Parole Board in accordance with the Act. The necessity became obvious when a prisoner serving a life sentence for murdering his former wife's partner in 1991, applied for parole. As a registered victim, the prisoner's former wife exercised her right under section 67(4)(ca) of the Act to make a submission to the Parole Board. The Parole Board refused the application for parole and in accordance with section 67(9) of the Act, gave a copy of the reasons to the prisoner. The written reasons included statements made by the former wife against the interests of the prisoner. The claim was dismissed but it is possible that he will appeal this decision and that the matter will continue to cost the Government financially and the victim emotionally. This will be an amendment to the uniform defamation law. It is necessary to keep so far as is possible to the uniform law. In the model Bill there was provision for each State Act to contain a schedule to expand the circumstances of publication that attracted absolute privilege. It was agreed that States and Territories could give absolute privilege to certain publications, such as of their Law Reform Commissions. The provision is—

(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.

(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if—

(a) the matter is published in the course of proceedings of a parliamentary body etc

(b) the matter was published in the course of proceedings in any Australian court or Australian tribunal etc

(c) the matter is published on an occasion that, if published in another Australian jurisdiction, would be an occasion of absolute privilege etc

(d) the matter is published by a person or body in any circumstances specified in schedule 1.

The current South Australian Act does not have (d), because the Government could not think of anything else that we thought should be accorded absolute privilege. Victoria and Queensland have it, but have nothing in their schedules. NSW particularly wanted to have a schedule, because that is what they had done with their earlier Act. The NSW schedule contains a long list.

Item 7 of the NSW Schedule is:

Without limiting section 27(2)(a)-(c), matter that is published:

(a) by the State Parole Authority or the Serious Offenders Review Council in a report or other document under the Crimes (Administration of Sentences) Act 1999, or—

(b) in the course of any proceedings of the following bodies:

(i) the State Parole Authority or a Division or committee of that Authority etc

The Bill mirrors this approach because (a) it maintains consistency with the scheme of the uniform Defamation Acts and (b) because it would keep all the law about defamation in one place.

The Commissioner for Victims' Rights has recommended an amendment to the Victims of Crime Act to provide for a payment for grief and a payment for funeral expenses in criminal-neglect cases that involves death. Currently, these payments are limited to homicide cases. Homicide is defined to mean murder or manslaughter. Criminal-neglect is not a homicide offence for this purpose. In a recent criminal-neglect case, an infant was killed by either his mother or her male partner (who was not the infant's father). Both adults were convicted of criminal neglect. As the convictions were for criminal-neglect rather than murder or manslaughter, the infant's father was not entitled to a grief payment or payment for funeral expenses. The maximum amount for funeral expenses is $7,000 and the maximum grief payment is $10,000.

The Commissioner for Victims' Rights has also suggested an amendment to the Criminal Law (Sentencing) Act to make it mandatory, for a court, other than in exceptional circumstances, to impose a restraining order in cases where defendant is guilty of a sexual offence. He cites a case where a District Court judge declined to issue a restraining order on the basis that a good behaviour bond would be adequate despite there being no condition to prohibit the defendant from contacting the victim. The Government thinks there is merit in amending the legislation to require a court when sentencing a defendant for a sexual offence to consider imposing a restraining order, on the defendant to prohibit the defendant from contacting the victim. The onus would be on the court to exercise discretion in favour of the request. If the court chooses not to impose a restraining order then the court would be required to state its reasons. The failure to make an order would be appealable.

Schedule 2 of the Freedom of Information Act contains a list of exempt agencies. They include such agencies as the Ombudsman, the Attorney-General, in respect of functions related to the enforcement of the criminal law, the DPP, the Parole Board and so on. It is the Government's opinion that the Commissioner for Victims Rights should be added to this list.

The Commissioner for Victims Rights has suggested that the Victims of Crime Act be amended so that a right that may be exercised by a victim may be exercised by another on behalf of the victim. This is an extension of the proposal originally made about the right to read a victim impact statement and was the subject of an amendment to the Criminal Law (Sentencing) Act in the original Bill. It is therefore proposed to amend the Victims of Crime Act in the same way as originally proposed and so encompass and broaden the original proposal. The right is confined to an officer of the court, an immediate family member or close relative, or, in the absence of these, a person who, in the opinion of the Commissioner for Victims' Rights, is suitable to act in the role, or, in any event, an employee of a group or organisation devoted to victim support, or the Commissioner for Victims' Rights (or a person acting for the Commissioner).

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 must nevertheless allow particulars to be furnished in the form of a victim impact statement unless the court determines that it would not be appropriate in the circumstances of the case.

6—Amendment of section 7A—Victim impact statements

This clause amends section 7A of the principal Act in several ways. New subsection (3a) enables 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 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. The section also makes it clear that a statement to be furnished to a court under section 7A or 7B may contain recommendations relating to sentence.

8—Amendment of section 19A—Restraining orders may be issued on finding of guilt or sentence

This clause provides that a court must, on finding a person guilty of, or on sentencing a person for, a sexual offence (which is defined in the clause), consider whether or not a restraining order should be issued against the defendant and, if the court determines that a restraining order should not be issued, give reasons for the determination.

9—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.

Part 3—Amendment of Criminal Law Consolidation Act 1935

10—Amendment of section 269R—Reports and statements to be provided to court

Section 269R deals with reports and statements to be provided to a court determining proceedings dealing with persons who are declared liable to supervision under the mental impairment provisions in the Criminal Law Consolidation Act 1935. This clause amends section 269R to allow for the furnishing of victim impact statements where a court is fixing a limiting term in proceedings relating to an alleged indictable offence or prescribed summary offence. The court is required to deal with the victim impact statement in all respects as if it were furnished under section 7A of the Criminal Law (Sentencing) Act 1988 except that, if the court is satisfied that the defendant is incapable of understanding the victim impact statement or that, having regard to the nature of the defendant's mental impairment, it would be inappropriate for the defendant to be present when the statement is read out (as required by section 7A(3b) and (3c)), those requirements will not apply.

The amendments also allow for the Crown or the Commissioner for Victim's Rights to furnish a court fixing a limiting term with a neighbourhood impact statement or a social impact statement (and the court is required to deal with such a statement as if it were furnished under section 7B of the Criminal Law (Sentencing) Act 1988).

Part 4—Amendment of Defamation Act 2005

11—Amendment of section 25—Defence of absolute privilege

This clause provides that a matter published in circumstances specified in proposed new Schedule a1 will be published on an occasion of absolute privilege.

12—Insertion of Schedule a1

This clause inserts a new Schedule a1 into the Act specifying matter published by the Parole Board of South Australia in a report or other document under the Correctional Services Act 1982 or any other Act or published by a registered victim of an offence (within the meaning of the Correctional Services Act 1982) in the course of, or for the purposes of, any proceedings of the Parole Board of South Australia relating to the offender.

Part 5—Amendment of Freedom of Information Act 1991

13—Amendment of Schedule 2—Exempt agencies

This clause makes the Commissioner for Victims' Rights an exempt agency for the purposes of the Freedom of Information Act 1991.

Part 6—Amendment of Victims of Crime Act 2001

14—Amendment of section 4—Interpretation

This clause amends the definition of homicide in the Act to extend it to an offence against section 14 of the Criminal Law Consolidation Act 1935 (criminal neglect) where the victim dies.

15—Amendment of section 20—Orders for compensation

This clause makes some minor amendments of a consequential and clarifying nature.

16—Insertion of section 32A

This clause inserts a new section allowing any rights of a victim (whether under this Act or any other Act) to be exercised on behalf of the victim by an appropriate representative chosen by the victim for that purpose (except as prescribed by regulation).

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

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