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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-15 Daily Xml
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STATUTES AMENDMENT (RECIDIVIST YOUNG OFFENDERS AND YOUTH PAROLE BOARD) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 22 September 2009. Page 3251.)

The Hon. S.G. WADE (11:04): I rise on behalf of the opposition to support the bill. A week ago, a crime wave that started in September escalated into one of the most concerning crime events in South Australia in recent years. Ordinary South Australians were anxious going to and from and being at work or even just driving around going about their daily business. On Thursday the police formed a task force, Operation Dimension, to try to deal with the outbreak, and I thank the police for their efforts and congratulate them on progress being made in their investigations and the prosecution of these offences.

In this context, early this week the Attorney-General went on radio and criticised this council for stalling this legislation, which he claims was necessary to deal with the crime outbreak. I remind the council of the facts. The government introduced this legislation in the House of Assembly in May, but did not pass it in the assembly until September. If there is a case for stalling, it lies with the government, which has control of the House of Assembly. This council received the bill on Wednesday 22 September; when the Attorney-General made his comment the bill had lain only one full day on the council table, and here we are addressing it on the fourth sitting day since the bill arrived.

The opposition's view on this bill is that we support the increased focus on community safety. However, it is our assessment that the government's proposal to introduce a class of recidivist young offender is likely to undermine community safety because in the youth context it is likely to stimulate rather than suppress criminal behaviour.

In concluding the second reading debate in the House of Assembly, and particularly over the past week, the Attorney-General has claimed that this bill is in furtherance of Monsignor Cappo's recommendation in the To Break the Cycle report. That recommendation states:

The objects of the Youth Offenders Act 1993 (Part 3, section 3) be amended to strengthen the requirement to take account of community safety when sentencing serious repeat young offenders. The strengthening of these provisions should occur in the context of a stronger focus on rehabilitation.

In speaking on the Statutes Amendment (Young Offenders) Bill 2007 on 17 October 2007, the Attorney-General advised that the bill implemented recommendation 2 of the To Break the Cycle report. In that speech the Attorney-General said:

The government also addresses Cappo's recommendation 2, which has urgent action status.

He went on to say:

Thus clause 6 amends section 3 to provide expressly for the case where a court is to sentence a youth who is being dealt with as an adult. The clause directs the court to consider general deterrence, public safety and rehabilitation. This is an attempt to balance two key factors noted by the Cappo recommendation: protection of the public and rehabilitation of the youth.

In May 2009, 18 months after the Statutes Amendment (Young Offenders) Bill 2007 passed this parliament, in the second reading on this bill in the House of Assembly the government did not even claim that it was implementing Cappo's recommendations. Minister Hill, representing the government, said:

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.

Later, he went on:

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.

The To Break the Cycle report is referred to in passing and as the context for the bill, not the impetus; yet, recently, the Attorney-General has repeatedly claimed that this bill implements the Cappo report. For example, in his summing up on the second reading of this bill in the other place, the Attorney-General asserted:

The bill was designed to meet, specifically, recommendation 2 of Monsignor Cappo's report...and we are doing that. The bill meets recommendation 2 of the Cappo report in that the bill amends the Criminal Law (Sentencing) Act and the Young Offenders Act to strengthen the requirement to take account of public safety when sentencing serious repeat young offenders.

I express my concern at two levels. First, the parliament and the people of South Australia should be properly informed of the drivers of policy and legislation. They should not be subjected to the rewriting of history for political purposes. Secondly, I see the Attorney-General's reframing of this story as a Cappo implementation issue as yet another attempt by a morally weak government to try to muster some semblance of credibility by trying to associate itself with a church voice. The government's actions also highlight the lack of credibility it has on anything to do with reducing crime.

Since 2002, when this government was elected, violent assault in South Australia has increased steadily. In 2008, 17,178 people were victims of assault. That is roughly 50 people per day in South Australia being violently assaulted. I would urge the council to be very wary of claims by this government that a proposal is implementing the Cappo report. In any event, if the government does want to associate with the policy prescriptions of Monsignor Cappo, the government selectively chooses those bits of the prescription that suit its political rhetoric. In a letter dated 20 July 2008 on this bill, at that stage in draft, Monsignor Cappo said:

...I would like to communicate my in-principle support of the draft bill. I would also like to take the opportunity to emphasise that any legislative changes that enable a young person to be deemed a recidivist offender should only be used in the most severe cases of repeat offending. For this group of young people, a continued focus on rehabilitation must remain. Using detention as the sole means to manage this group of young people cannot be an option if we are to justly improve community safety.

The key clause in what Monsignor Cappo said is, 'For this group of young people,' that is, even the recidivist offenders, 'a continued focus on rehabilitation must remain'. Yet, in The Australian newspaper yesterday, the Attorney-General makes clear that he is giving up on rehabilitation, and he is quoted as saying:

The policy of this government is that there are some offenders who are part of the gang of 49 who may have been susceptible to rehabilitation when they were much younger and may again in the future be amenable to rehabilitation but are not currently amenable to rehabilitation.

The attitude of the Attorney-General was laid bare when he referred to the people involved in the crime spree as 'pure evil'. 'Turds' or 'scum' may be colourful descriptors, but the epithet of 'pure evil' takes the issue to a different and sinister level. People who are pure evil are, by definition, devoid of anything good, and good cannot take seed where all there is is evil. There is no scope for reform, and any attempts at rehabilitation are pointless.

Of course, we cannot afford to waste rehabilitation resources on people who are not open to it. However, we cannot afford to write off any people as pure evil, either. Even before a criminal turns away, we need to stand ready to be nimble in our services to ensure that we take advantage of any windows of opportunity that may come to convince people that their criminal behaviour is not in the interests of anyone. But, if we have written off offenders as pure evil, we have closed the door on rehabilitation. We miss opportunities when they come. We are condemning future South Australians to unnecessarily becoming victims of crime. If we do not take every opportunity to force offenders to address their criminal behaviour, they will be released back into the community with a higher risk of reoffending, and that means more victims than there needs to be. So, the government is failing to heed Monsignor Cappo's call for a continued focus on rehabilitation. The Attorney-General agrees with Cappo only when it reinforces his prejudices.

The government is also failing to deliver the community's supervision of offenders that Monsignor Cappo says is required. In this regard I quote again from the letter of Monsignor Cappo on the draft bill, as follows:

The To Break the Cycle investigation identified there is a very small group of young offenders who are responsible for the majority of youth crime, some of whom pose a significant risk to both themselves and the broader community. It is this very small group of young people for whom the only sensible, immediate course of action is detention that is coupled with assertive individualised case management. For all young offenders, the focus should be delivery of individualised case management within the community setting.

Monsignor Cappo insisted on assertive, individualised case management. In a press release dated 22 May entitled '$11.5 million to break the cycle of youth offending', the Attorney-General announced that $11.5 million will be devoted in the state budget to breaking the cycle of youth offending. About half of the funding was to establish a community protection panel at a cost of $5.6 million. The release described the CPP in the following terms:

Intensive case management and concentrated support services will be provided to serious repeat offenders. A panel of experienced members of the community and government will oversee this, and will recommend their return to custody if they do not fully take part in tailored programs.

A media report on the ABC of that day quotes the Attorney-General as saying:

We're spending much of the money on a community protection panel that intensively case manages the so-called 49 and returns them to custody if they don't accept the offers that are given to them to turn away from crime.

So, where was the intensive case management when the so-called gang of 49 was running amok in the past few weeks? If the gang of 49 is being intensively case managed by the panel, as the Attorney-General promised, why did the police have so much trouble locating the perpetrators in recent weeks?

If the gang of 49 is being intensively case managed by the panel, how has the gang got out of control? Surely, at least some of them would have been returned to custody as the Attorney said they would be. Yet, the government's responses in the House of Assembly are not reassuring. On Tuesday, in answer to questions in the House of Assembly, the Attorney-General was not able to advise the parliament when the panel was established. He was unable to advise how much of the allocated $5.6 million had been spent on the panel. He was not even able to tell the parliament how many members of the gang of 49 are under the management of the panel. He took all the questions on notice.

Clearly, the Attorney-General is not on top of one of the key elements of the government's strategy to deal with youth offending—a strategy which was recommended by Monsignor Cappo and a strategy which I endorse. Apparently, the government is not delivering the assertive, individualised case management to the gang of 49 that South Australians were promised. The government's failure to effectively deliver on crime and to intensively case manage those offenders will not be hidden by its chest-beating on bills like this one.

I turn now to some of the key provisions of the bill. In 2003 the government amended the Criminal Law (Sentencing) Act 1988 to provide for courts to declare an adult offender to be a serious repeat offender. Through this bill, the government seeks to apply this same principle to recidivist young offenders. The opposition supported the introduction of serious repeat offenders for adults but we do not consider that it is appropriate for the juvenile justice jurisdiction. In that, we are not alone. The model in this bill was not recommended in the To Break the Cycle report. It has not been tried anywhere else in the world and I am not aware of any stakeholder, not on the government payroll, who is supporting the proposal.

I remind the council that we already have legislation which allows juveniles to be treated as adults in the criminal justice system. If a young offender's behaviour is so severe that they should be treated as an adult, then transfer them to the adult system but, while a young person still has a credible prospect of engagement with rehabilitation, society should use its best efforts to divert that young person from criminal behaviour. The opposition will be supporting the moves to strengthen youth parole because we believe that it helps young people to focus on addressing their offending behaviour.

What do we think might be the impact? The government estimates that there will be about 15 or 16 offenders who will meet the criteria of recidivist young offender. Presumably, that is the group that the Attorney-General calls 'pure evil'. What does he want to do with them? Does he want to exile them? Does he want to execute them? No, the Attorney-General's response to pure evil is to commit them to a few more months of detention. I remind the council of the statement that Monsignor Cappo made which I quoted earlier:

It is this very small group of young people for whom the only sensible, immediate course of action is detention that is coupled with the assertive, individualised case management.

The government knows how to deliver detention, but it is failing to deliver assertive individualised case management.

My colleague, the shadow attorney-general, provided a fuller rebuttal of the government's proposals in the other place. I will also be moving amendments to make the review independent of the government by making it a matter for the Social Development Committee. The opposition supports the bill but, as I foreshadowed, it will be moving amendments to it.

The Hon. A. BRESSINGTON (11:19): I rise to indicate that I will also be supporting this bill, but I would like to make a few brief points. I have received e-mails from police officers who have made it very clear that this gang of 49 is not a gang of 49; that is what it has been dubbed by the media. Most of these young people do not even know each other. They are breaking off or splintering into pairs or groups of three at a time.

They have created a reign of terror over the community which requires that some tougher action be taken. I do believe that treatment and rehabilitation is always the ultimate goal, but I also believe that there is a waking up phase, if you like, for people who are going to be exposed to treatment and rehabilitation, but that does not necessarily work as the immediate intervention.

I heard Monsignor Cappo on the radio with Leon Byner the other day saying that he agreed with the action that the government is taking with this group. He believes there are about 16 or 17 young people who are beyond rehabilitation right now. I believe it is that number of 16 or 17 young people that this bill truly targets as young recidivists. I believe that young people who commit these crimes need to be dealt with by a sentence that fits the crime. We cannot say that these young people are newcomers to the scene.

I support this bill and I am pleased that the Attorney-General picked up my amendment in the lower house and expanded on it. I would have taken my amendment further if I had thought that the government would support it. However, I am pleased that he has taken it on board and taken it another step further.

Debate adjourned on motion of Hon. R.P. Wortley.

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