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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-09-08 Daily Xml
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STATUTES AMENDMENT (PROPERTY OFFENCES) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 15 July 2009. Page 2922.)

The Hon. S.G. WADE (17:51): I rise today on behalf of the opposition to indicate our support for this bill. This is a very straightforward bill and my contribution will not be a long one. By way of background, the bill brings before us the recommendations of the Model Criminal Codes Officers Committee of the Standing Committee of Attorneys-General and seeks to alter the way in which the penalties for a property offence are calculated.

As part of the 1986 reforms of the statutes relating to property offences, South Australia adopted a penalty regime which created a direct correlation between the financial cost of the damage done to the property and the penalty for that offence. The Attorney-General, the Leader of the Opposition and other opposition members in another place all noted that this direct correlation between the cost of damage and the penalty was not an ideal principle on which to base the penalties for property offences. It is clear that the value of the property which is damaged does not necessarily reflect the seriousness or impact of the offence. In its report on criminal damage, the Model Criminal Codes Officers Committee noted that South Australia is the only Australian jurisdiction which has this correlation in its laws. The report observed:

Apart from the likelihood of bracket creep and other considerations…damage to valuable property may be trivial in extent…It is preferable to rely on exercise of the sentencing discretion in particular cases than attempt to discover legislative formulae which will dissolve these complexities.

The model committee therefore recommended that a general offence of criminal damage be enacted, with a maximum penalty of 10 years' imprisonment, to reflect the fact that not all property offences are major offences and should not, therefore, be treated as major indictable offences. The seriousness of a property offence will be directly related to the value of the property, which will determine whether the offence is a major indictable offence, a minor offence, or a summary offence. However, the specific penalty for the offence will still be at the discretion of the court.

It is important to note that the bill maintains a separation between arson and other forms of property damage. The offence of arson maintains a maximum penalty of life imprisonment, although an offence of arson can be committed only where it is in relation to a building or a motor vehicle. Under the amendments proposed by the bill, it is also an offence to threaten to damage another person's property and, again, there are three levels of offence: basic, aggravated, and an offence aggravated by a threat to commit arson.

In closing, I point out that the Attorney-General has stated that the new method of determining the seriousness of an offence based on value, with the penalty determined by the court, is a similar method to that used in respect of theft. This is a sensible approach to determining sentences, and we are pleased to see that for once the government—and, indeed, the Attorney-General—recognises the importance of the discretionary powers of the judiciary in relation to sentencing. We can only hope that the Attorney-General will be able to generalise the principle. The independence of the judiciary and the separation of the executive and the judicial arms of government are important principles of the Westminster system of government.

As I said, the opposition supports the bill and looks forward to its passage through the remaining stages.

The Hon. DAVID WINDERLICH (17:54): I am happy to support the second reading of the bill; obviously, it has the intent of simplifying what, in the past, has been a complex area of law. I note that the report refers to a host of old English statutes, covering all sorts of specific offences for damaging a house, a tent, a stable, a coach house, an outhouse, a warehouse, an office, shop, mill, malt house, hop house, and on it goes. Clearly, this area of law needed some simplification.

A first attempt was made in 1986 when it was reduced down to three sections covering the same field, containing a series of offences sorted by whether the damage was by fire or explosives, whether or not the offence was attempted or completed, and the value of the property damaged or attempted to be damaged. We are now taking another step towards simplification by removing the differentiation between the intention to commit damage and the actual act of damage.

However, it does raise a couple of questions for me, which I hope will be resolved during debate in the committee stage. The first question relates to the focus on damage by fire or explosives. I assume there are good historical reasons for this, because it has been sitting around in previous legislation, but, under this bill, if a person, without lawful excuse, by fire or explosives damages property that is a building or a motor vehicle, whether the property belongs to the person or to another, they can receive the maximum penalty of imprisonment for life. If they damage something without lawful excuse by means other than fire or explosives, the maximum penalty is 10 years.

I am not convinced that this makes sense. There are many ways to damage or destroy property. You could ram a house or run over a car with a big Mack truck; you could start an avalanche or bulldoze a dam wall and flood property; you could chop down a tree so that it falls on your neighbour's house, push their car off a cliff, or simply go through a house with a sledgehammer; and you could even infest a house with white ants, creating a new offence of malicious infestation. Any of these methods could cause greater damage than the use of fire or explosives, so I look forward to an explanation as to why there is such a focus in the legislation around property damage.

The second question I have is about the values implicit in these penalties. Under this bill, if you damage property using fire or explosives you could be imprisoned for life. That is equivalent to the maximum penalty for homicide, rape, or the persistent sexual exploitation of a child. It is not far above kidnapping: 20 years for a basic offence, and 25 years for an aggravated offence. If you destroy property, or threaten to damage another's property, the maximum penalty is 10 years; the maximum penalty for the mutilation of female genitalia is seven years' imprisonment.

We talk a lot in parliament about the messages we send with the legislation we pass; I am not sure whether we want to send the message that damaging property, even relatively minor damage to property and even if it is by means of fire or explosives, is of equivalent gravity to homicide, rape, or the persistent sexual exploitation of a child. Given that life imprisonment is our maximum penalty, do we (and I genuinely do not know the answer to this question) impose that maximum penalty for property offences, when that is all we can impose for serious offences committed against a person?

I have not yet decided whether that is sensible, or whether in fact there should not be some gradient of severity of penalty by what we value—and I assume we value human life, freedom from rape, and avoiding sexual exploitation of children above protecting property. If we do, you would think our penalties would reflect that. As I say, I have an open mind on this, but it is a question that I hope will be resolved during debate in the committee stage.

Debate adjourned on motion of Hon. J.M. Gazzola.

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