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

Second Reading

Adjourned debate on second reading.

(Continued from 8 September 2009. Page 3069.)

The Hon. D.G.E. HOOD (18:19): Until recently we had some 43 specific sections containing different offences for the damaging of property and causing arson. These are provisions inherited from the Imperial Malicious Damage Act 1861—a long time ago—which lasted in this state right up until 1986.

It was an unusual scheme in that there were different offences and different penalties depending on the type of object that was destroyed. There were different offences depending on whether the object destroyed was a house, for example, or a tent, a stable, a coach house, an outhouse, a warehouse, an office, a shop, a mill, a malt house–and on it goes. Even various types of different crops had different offences, whether they be hay or corn, grain or cultivated vegetables, wood, etc.

This has been remarked on elsewhere in other second reading contributions in this place. The Criminal Law Consolidation Act amendment (No. 90 of 1986) replaced all those different offences with a much simpler regimen found in sections 84 and 85. The specific offences were replaced by a general regimen of offences relating to property damage as a whole, and the government argues that the offence and penalty structure implemented in 1986 is still not optimal.

Indeed, the government is critical that the section offers different penalties depending on the value of the property damaged or attempted to be damaged. South Australia is unique in applying different penalties depending on the value of property damaged, and our approach has been criticised by the Model Criminal Law Officers Committee.

One example given to illustrate the problems inherent in offering different penalties dependent on the value of the property damaged was a man setting fire to a single tree resulting in a whole forest catching fire. Another example focused on a person with no knowledge of art causing damage to two paintings, one of which is priceless. On the current rules he would face a minor summary offence for the low value piece of art and a District or Supreme Court hearing for the other one, even though he may not have been able to tell the difference between them. It is quite an unusual situation indeed.

Because of the current regimen, I understand that a youth who burned down the Seaford Primary School in about 2002 ended up being convicted only for burning down a clothes locker despite the fact that the whole school burnt down, apparently because that was the only intent that could be proven. That does not make much sense to me.

I am aware of another case dealt with by the District Court several years ago, a southern suburbs case, in which a defendant was charged with burning down the house of a former partner. In fact, the evidence was that he set fire to the bed in which she allegedly had an affair and, unfortunately, the flames took hold. The question therefore is: was it his intention to burn just a bed or the whole house?

The truth is that fire is so unpredictable that it is unreasonable to assume that an offender can accurately calculate the amount of damage that flames will do once they take hold, and it is no doubt inappropriate to put too much weight on the final damage figure that may result from the fire caused by a particular defendant. Intent is the issue, surely.

I still have several concerns regarding the drafting of this bill, and I am surprised that proposed section 6(3) provides that the penalty for damaging property other than by fire or damaging property other than buildings or motor vehicles by fire is imprisonment for 10 years. Nevertheless, in proposed section 6(4), the offence of threatening to damage—so not actually damaging, but threatening to damage—in its aggravated form carries imprisonment for 15 years.

The bill would bring into effect a strange situation in which the penalty for the threat can be more than the penalty applied for the actual act of setting fire to the property. This seems unclear to me. As the member for Goyder pointed out in another place, the bill also results in a penalty for threatening to commit arson at 15 years' imprisonment being greater than the penalty for threatening to kill someone which is actually 10 years' imprisonment.

Even putting those inconsistencies aside, the bill also appears to leave in place section 85B of the Criminal Law Consolidation Act which provides for a maximum 20 year penalty for setting a bushfire. I find it difficult to understand that arson of a house or a motor vehicle results in life imprisonment under this bill while setting a bushfire that may consume dozens of houses results in a lesser maximum penalty, being 20 years' imprisonment. This seems to me to be clearly inconsistent.

I will place a question on notice to the minister as to whether there has been any thinking as to better contextualising the penalties in this bill, or maybe the government has a reason why it believes this is appropriate. If so, I would certainly be interested in hearing that. Perhaps the minister would be kind enough to address that during the appropriate stage of the committee. With that being said, Family First is certainly happy to support the general thrust of this bill despite the fact that it does appear to have some inconsistencies. I look forward to the committee stage of the bill.

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (18:24): I thank honourable members for their contributions to this important bill. The Hon. Mr Wade is, I believe, right: this is, at base, a straightforward reforming measure. The Hon. Mr Winderlich asked two questions. First, he asked why it is that special attention is paid to criminal damage caused by fire and explosives. It has always been so. The reason lies in the threat that damage by fire and explosives posed in closely inhabited towns centuries ago. One need only draw to mind the Great Fire of London. Blackstone's Commentaries states:

Arson, ab ardendo, is the malicious and wilful burning of the house or outhouse of another man. This is an offence of very great malignity and much more pernicious to the public than simple theft: because, first, it is an offence against that right of habitation, which is acquired by the law of nature as well as by the laws of society; next, because of the terror and confusion that necessarily attend it; and lastly, because in simple theft the thing stolen only changes its master, but still remains in esse for the benefit of the public, whereas by burning the very substance is absolutely destroyed. It is also frequently more destructive than murder itself, of which too it is often the cause: since murder, atrocious as it is, seldom extends beyond the felonious act designed; whereas fire too frequently involves in the common calamity persons unknown to the incendiary, and not intended to be hurt by him, and friends as well as enemies. For which reason the civil law punishes with death such as maliciously set fire to houses in towns, and contiguous to others; but is more merciful to such as only fire a cottage or house standing by itself.

Secondly, the Hon. Mr Winderlich asked why the maximum penalty for arson is life imprisonment. The answer lies partly in what has gone before. Because of the severity with which the old law treated arson, the penalty was death. When in the early 1800s the death penalty was removed from any offences (such as rape, forgery, counterfeiting and the like), it was also removed from arson. But the heat of the debate was about the death penalty, so the remedy in each instance was to substitute life imprisonment. That is why we still have it for rape, for example, and, for the same reason, arson. No government in this state has yet seen fit to reduce the maximum penalty applicable to arson.

Bill read a second time and taken through its remaining stages.

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