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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-09-22 Daily Xml
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STATUTES AMENDMENT (RECIDIVIST YOUNG OFFENDERS AND YOUTH PAROLE BOARD) BILL

Introduction and First Reading

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

Second Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (22:38): 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.

This Bill arises from the Government's concern about the harm done by a small number of young offenders who persist in serious crime despite our best attempts at diversion and rehabilitation. They are few in number but cause disproportionate harm.

Members will recall the amendments made in 2003 to the Criminal Law (Sentencing) Act 1988, providing for the courts to declare an adult offender to be a 'serious repeat offender'. If a declaration is made, then the principle of proportionality in sentencing no longer applies and any non-parole period must be at least four-fifths the length of the sentence of imprisonment. A declaration can only be made against a person who has, on 3 separate occasions, committed a serious offence as defined, resulting in imprisonment (or, in the case of the most recent offence, the prospect of imprisonment). In the case of sexual offending against a child under 14, only 2 separate offences are needed. A declaration is in the discretion of the sentencing court.

The Government believes that we should apply this same principle to recidivist young offenders and this Bill would do that. The Bill proposes that a court sentencing a youth for a serious offence, where the required criminal history exists, would have to consider whether the youth ought to be declared a 'recidivist young offender'. If a declaration were made, then, in sentencing the youth, proportionality would not apply and a sentence of detention could be imposed without a finding that a non-custodial sentence would be inadequate. Further, the present rule permitting conditional release after the youth has served two-thirds of the sentence would be varied for these offenders. The youth would have to serve at least four-fifths of the sentence of detention before becoming eligible for release.

The Bill also proposes that the work of reviewing the progress of a recidivist young offender, and the decision about his or her conditional release, would fall, under the Young Offenders Act 1993 to the Training Centre Review Board constituted as the Youth Parole Board. That is, the Board would be so constituted as to include a police officer or former police officer and a person with skills and experience in matters relating to the effect of crime on victims. The Bill proposes to spell out the factors that the Youth Parole Board must consider in deciding about conditional release without limiting consideration of any other relevant factor. Public safety is to be the paramount consideration, over and above all else. The Board must also consider the youth's behaviour on any previous release from detention, given that the youth will have been previously detained, as well as any reports that have been written about the youth and the circumstances into which the youth is being released. Further, the Bill directs the Board to consider the effect of conditional release on any registered victim and his or her close relatives.

Accordingly, the Bill also proposes to establish a Victims' Register, by analogy with that already operating in the adult jurisdiction under the Correctional Services Act 1982. If an offender is sentenced to detention, then anyone who has been injured, whether mentally or physically, as a result of that offence will be entitled to have his or her details added to the register. If the Board is to consider the conditional release of the youth, it will notify the registered victim, who may make submissions. Those submissions will be weighed in deciding whether to release the youth or not.

In keeping with the Victims' Register, it is proposed to amend the Young Offenders Act 1993 to allow for the release of certain information about detainees. Section 64 will be amended to allow disclosure of information about a detainee's sentence, release from custody, detention centre transfers, as well as any escape, to an eligible person (as defined). It is also proposed to amend section 37 to allow for the release of the terms of a condition of licence to a victim where those terms relate to a victim. These amendments are to be reflected in new section 41A to be inserted in the Act in relation to the conditions of release of a detainee.

The Bill recasts the provisions of the Young Offenders Act 1993 dealing with the work of the Training Centre Review Board. In most cases, these changes are for clarity, however, there is 1 change of substance. Where a youth is believed to have breached the conditions of release, and is brought back before the Board for it to consider whether the youth should be returned to detention, the Bill proposes that the Board will be entitled to consider any breach of a condition of release, not only the particular breach that led to the application. For instance, a youth who is served with a breach application might abscond, which could constitute a further breach. The Board should be able to take into account any breach of the release conditions.

The Bill makes other, more minor changes to the law. It clarifies the operation of section 32(5a) of the Criminal Law (Sentencing) Act 1988 to remove a possible ambiguity. That is, it makes quite clear that, if there is a global sentence under section 18A, and 1 or more of the offences encompassed in the global sentence is an offence that attracts a mandatory minimum non-parole period, the non-parole period that is applied to the global sentence must be a period not less than the greater of any such mandatory period prescribed. The amendments also clarify the backdating of a sentence to a specified date in accordance with the principles in PNJ v The Queen [2009] HCA 6. These amendments are in response to comments made by the Supreme Court in the 2008 case of R. v Dundovic indicating that to interpret the provision otherwise would work hardship to the offender.

The Bill also, incidentally, makes a technical amendment to these provisions, which are, at some points, cast in terms of offences against particular Acts, Parts of Acts or sections. In some cases, the behaviours prohibited by those named provisions may have been unlawful also under predecessor laws. Accordingly, the amendments make clear that corresponding offences under previous enactments can also be taken into account as serious offences.

Further, the Bill would amend section 6(3) of the Young Offenders Act 1993, which is about the recording of informal cautions. It is clear that, when Parliament passed that section, it did not intend that nobody, anywhere in government, could write down anything about an informal caution. Rather, it intended that the informal caution should not become part of a youth's criminal record and could not be taken into account in any future sentencing. It was not to count against him. The Bill proposes to amend the Act to make clear that routine records can be made and kept within government showing that a youth has been informally cautioned, but that such a record is not to be disclosed as part of a criminal-record check (that is, a police clearance such as might be required, for example, for work or volunteering purposes) and cannot be used in any court proceedings about the youth without his or her consent. For avoidance of doubt, the provision is retrospective.

There is also an amendment to the Criminal Law Consolidation Act 1935 to make clear that the supervisory powers of the Minister and the Parole Board over a mentally-incompetent person can be delegated. This will permit, in particular, the delegation of supervisory powers over a youth who is unfit to stand trial or who has been found mentally incompetent to have committed an offence, to an appropriate officer of the Department for Families and Communities, or some other suitable person or body to exercise supervision over youths.

Finally, the Bill provides for a review by the Attorney-General, in consultation with the Commissioner for Social Inclusion, within 3 years of operation and requires that the report of the review be laid before the Parliament.

This Bill is directed at the small number of young offenders who refuse to learn from experience. Those few present a danger to the public that the Parliament cannot ignore. They require longer detention, both so that they understand how seriously society views their conduct and also to keep the public safe. That is not to say that these youths cannot be rehabilitated. We hope they can, and we are carrying out the recommendations of the 'To Break the Cycle' report to that end. We cannot, however, jeopardise the public for the sake of the individual.

I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 269V—Custody, supervision and care

It is proposed to insert 2 additional subsections after subsection (3) of section 269V. Those subsections will allow for the Minister responsible for the administration of the Mental Health Act 1993 or the Parole Board (as the case may be) to delegate a power or function under the section—

to a person for the time being performing particular duties or holding or acting in a particular position; or

to any other person or body that, in the delegator's opinion, is competent to perform or exercise the relevant functions or powers.

Any such delegation—

must be by instrument in writing; and

may be absolute or conditional; and

does not derogate from the ability of the delegator to act in any matter; and

is revocable at will by the delegator.

Part 3—Amendment of Criminal Law (Sentencing) Act 1988

5—Amendment of heading to Part 2 Division 2A

The heading to Division 2A will be amended to reflect the proposed inclusion in this Division of provisions dealing with both adult offenders and recidivist young offenders.

6—Amendment of section 20A—Interpretation and application

The current definitions of serious drug offence, serious offence and serious sexual offence are to be amended so as to include similar offences committed in other jurisdictions and offences against corresponding previous enactments that are substantially similar. Current subsection (2) is to be deleted as a consequence of the inclusion in this Division of provisions relating to recidivist young offenders. Substituted subsections (2) and (3) provide for the application of this Division.

7—Amendment of section 20B—Declaration that person is serious repeat offender

These proposed amendments are related to the inclusion in this Division of provisions relating to recidivist young offenders and the amendments proposed by clause 6 to the definitions used in this Division.

8—Insertion of section 20C

New section 20C is to be inserted after section 20B.

20C—Declaration that youth is recidivist young offender

This new section is substantially similar to section 20C with minor changes to accommodate limitations imposed by the Young Offenders Act 1993 on the sentencing powers of the Youth Court.

9—Amendment of section 23—Offenders incapable of controlling, or unwilling to control, sexual instincts

This amendment proposes to insert a paragraph in the definition of relevant offence that will include in the definition a substantially similar offence against a corresponding previous enactment.

10—Amendment of section 32—Duty of court to fix or extend non-parole periods

This proposed amendment clarifies the position in respect of the fixing of a non-parole period where a court sentences a person under section 18A to the 1 penalty for a number of offences and a mandatory minimum non-parole period is prescribed in respect of any of those offences. In that situation, any non-parole period that is to be fixed by the court—

must be a period not less than the mandatory period prescribed in respect of the relevant offence; and

if there is more than 1 such offence in respect of which a mandatory period is prescribed—must be a period not less than the greater of any such mandatory period; and

must be commenced or be taken to have commenced on the date specified by the court (which may be the day on which the person was first taken into custody or a later date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the person is sentenced).

Note—

See PNJ v The Queen [2009] HCA 6

11—Amendment of section 33—Interpretation

This amendment proposes to insert a paragraph in the definition of serious sexual offence that will include in the definition a substantially similar offence against a corresponding previous enactment.

Part 4—Amendment of Young Offenders Act 1993

12—Amendment of section 4—Interpretation

The amendments proposed to this section will insert a number of definitions required as a result of inserting provisions relating recidivist young offenders and constituting the Training Centre Review Board from time to time as the Youth Parole Board to deal with any such young offender. In particular, a recidivist young offender is defined as a youth who is declared under Part 2 Division 2A of the Criminal Law (Sentencing) Act 1988 to be a recidivist young offender.

13—Insertion of section 5A

It is proposed to insert this section after section 5.

5A—Victims Register

New section 5A provides for the keeping of a Victims Register for the purposes of the Young Offenders Act 1993. This provision is based on a similar provision in the Correctional Services Act 1982 and its purpose is to enable victims to be notified about and make representations before relevant proceedings of the Training Centre Review Board. Provision is also made for the confidentiality of information in the Register.

14—Amendment of section 6—Informal cautions

Subsection (3) of this section currently provides that no official record may be kept of an informal caution. That subsection is to be repealed and 2 new subsections are to be inserted. The effect of the first amendment will be that a record (made or kept before or after the commencement of this proposed subsection) of an informal caution given to a youth will not constitute a criminal record of the youth and may not be referred to for the purposes of a criminal record check or in judicial proceedings. The second proposed subsection will provide that any record of an informal caution made and kept before the commencement of these amendments will be taken to have been legally made and kept.

15—Amendment of section 23—Limitation on power to impose custodial sentence

The amendment proposed to this section is consequential on the proposal to have a power for a court to declare that a youth is a recidivist young offender. Currently, a sentence of detention must not be imposed for an offence unless the court is satisfied that a sentence of a non-custodial nature would be inadequate because of the gravity or circumstances of the offence or the offence is part of a pattern of repeated offending. The amendment would also allow for a custodial sentence where the youth is a recidivist young offender.

16—Amendment of section 37—Release on licence of youths convicted of murder

The first amendment proposed to this section will insert a new subsection (1a) after current subsection (1). New subsection (1a) makes provision for the matters which the Supreme Court must consider when determining an application for the release on licence of a youth serving a life sentence for murder. The paramount consideration of the Court in the case of a recidivist young offender should be the safety of the community. With regard to any other youth, the Court should have regard to the balance to be achieved between the protection of the community and the rehabilitation of the youth. In all matters, the Court should also take into consideration—

any relevant remarks made by the court in passing sentence;

the impact that the release of the youth on licence is likely to have on any registered victim and the registered victim's family;

the behaviour of the youth while in detention;

any reports provided to the Court as required by the Court;

the probable circumstances of the youth after release from detention;

any other matters that the Court thinks are relevant.

It is proposed to insert new subsections into the section that will provide that if a youth is to be released on licence subject to a condition that relates to the victim or the victim's family, the Training Centre Review Board must notify the victim of the terms of the condition. The Board is not, however, required to notify the victim if the victim does not wish to be so notified, or if the Board is satisfied that it is not appropriate, in the circumstances of the case, to notify the victim.

Other proposed amendments to this section will substitute references to a justice of the peace with references to the Youth Court for the purposes of warrant procedures.

17—Insertion of heading to Part 5 Division 3 Subdivision 1

Division 3 of Part 5 makes provision for the release of youths from detention. It is proposed to divide the Division into Subdivisions, the first to be entitled 'Training Centre Review Board'.

18—Amendment of section 38—Establishment of Training Centre Review Board

It is proposed to vary the constitution of the Training Centre Review Board (the Board) by adding 2 persons with appropriate skills and experience in victimology and, instead of the present requirement for 2 currently serving police officers, allow for these persons to be currently serving or retired police officers. It is also proposed to delete current subsections (9) and (10) (see clause 19).

19—Substitution of section 39

Current section 39 provides for reviews of detention by the Board. It is proposed to repeal that section and substitute a new section that will clarify the procedures of the Board.

39—Reviews, etc and proceedings of Training Centre Review Board

The Training Centre Review Board has the following functions in respect of a youth who has been sentenced to detention in a training centre:

to conduct a review of the progress and circumstances of the youth while in the training centre—

(1) at intervals of not more than 6 months; and

(2) at any other time on the request of the Chief Executive;

to hear and determine any other matter relating to the youth assigned to the Board under this Act.

The section then makes provisions relating to proceedings before the Board, including the constitution of the Board, notification of proceedings and representation.

The section also provides that if a period of detention to which a youth has been sentenced will extend past the youth's 18th birthday, the Board must, at the last periodical review before that birthday, consider whether the youth should be transferred to complete the period of detention in a prison (and, if the Board does so determine, the youth will be transferred to prison on or after his or her birthday in accordance with the Board's determination).

20—Insertion of heading to Part 5 Division 3 Subdivision 2

The second subdivision is to be headed 'Leave of absence'

21—Substitution of section 41

It is proposed to repeal section 41 and substitute it with a new Subdivision 3 headed 'Conditional release from detention' (comprising new sections 41 to 41C inclusive).

41—Application and interpretation of Subdivision

New section 41 provides that Subdivision 3 does not apply to a youth—

who has been dealt with as an adult and is serving a sentence or part of a sentence of imprisonment in a training centre; or

to whom Division 2 applies; or

who is serving a sentence of detention of less than 2 months.

It is also proposed that in this Subdivision, if a reference to the Training Centre Review Board, or the Board, is made in relation to a youth who is a recidivist young offender—

the reference will be taken to be a reference to the Youth Parole Board; and

in carrying out any function assigned to the Training Centre Review Board under this Subdivision, the Board must be constituted as the Youth Parole Board in accordance with section 39(2)(b).

41A—Conditional release from detention

New section 41A makes provision for the release of a youth from detention in a training centre.

Before releasing a youth (other than a recidivist young offender) from detention, the youth must have completed at least two-thirds of the period of detention in a training centre and the Board must be satisfied that the youth behaved satisfactorily while detained and there is no undue risk of re-offending if released. The release will be subject to the following conditions:

a condition that he or she not commit any offence;

a condition that he or she be under the supervision of an officer of the Department and that the youth obey the directions of that officer;

any other condition that the Board thinks fit.

The following particular matters apply to the release from detention of a youth who is a recidivist young offender:

the recidivist young offender must have completed at least four-fifths of the period of detention in a training centre;

in determining whether the recidivist young offender should be released from detention—

(i) despite any other provision of this Act, the paramount consideration of the Youth Parole Board must be the safety of the community; and

(ii) the Youth Parole Board must also take the following matters into consideration:

(A) the likelihood of the recidivist young offender re-offending if released from detention;

(B) the likelihood of the recidivist young offender complying with the conditions of release;

(C) if, in relation to an offence for which the recidivist young offender was sentenced to a period of detention in a training centre, there is a registered victim—the impact that the release of the recidivist young offender is likely to have on the registered victim and the registered victim's family;

(D) the behaviour of the recidivist young offender while in detention;

(E) the behaviour of the recidivist young offender during any previous release from detention;

(F) any reports provided to the Board as required by the Board;

(G) the probable circumstances of the recidivist young offender after release from detention;

(H) any other matters that the Board thinks are relevant;

the release of the recidivist young offender must be subject to the following conditions:

(i) a condition that he or she not commit any offence;

(ii) a condition that he or she be under the supervision of an officer of the Department and that he or she obey the directions of that officer;

(iii) any other condition that the Board thinks fit.

The section also provides that if a youth is to be released subject to a condition that relates to the victim or the victim's family, the Training Centre Review Board must notify the victim of the terms of the condition. The Board is not, however, required to notify the victim if the victim does not wish to be so notified, or if the Board is satisfied that it is not appropriate, in the circumstances of the case, to notify the victim.

41B—Release on condition of home detention

This new section substantially re-enacts what is contained in current section 41(5a) and (5b).

41C—What happens if youth fails to observe condition of release

New section 41C provides that if a police office or the Minister considers that a youth has failed to observe any condition imposed by the Board, the police officer or Minister (the applicant) may apply to the Board for an order that the youth be returned to a training centre. The section then sets out the procedure for bringing the youth back before the Board and the powers that the Board may then exercise in relation to the youth.

22—Insertion of heading to Part 5 Division 3 Subdivision 4

A new Subdivision 4 heading ('Absolute release from detention by Court') is proposed to be inserted immediately before section 42 of the principal Act.

23—Amendment of section 64—Information about youth may be given in certain circumstances

It is proposed to amend section 64 by adding a number of subsections that provide for the giving of certain information by the Chief Executive about a youth sentenced to detention or imprisonment for an offence to an eligible person, who may be—

a registered victim; or

a member of the youth's family or a close associate of the youth; or

a legal practitioner who represents the youth; or

any other person who the Chief Executive thinks has a proper interest in the release of such information.

The Chief Executive has an absolute discretion to grant or refuse an application for release of information to an eligible person.

Part 5—Review of Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act 2009

24—Review of Act

This clause provides that the Attorney-General must, within 3 years after the commencement of this measure, in consultation with the Commissioner for Social Inclusion, cause a review of the Act to be undertaken, with a report of the outcome of the review being tabled in Parliament.

Debate adjourned on motion of Hon. S.G. Wade.

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