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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-27 Daily Xml
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STATUTES AMENDMENT (RECIDIVIST YOUNG OFFENDERS AND YOUTH PAROLE BOARD) BILL

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: Given that this bill is based very much on the model for serious repeat adult offenders, in the six years since the adult law was introduced how many declarations have been made by courts that an adult is a serious repeat offender?

The Hon. P. HOLLOWAY: None, to date.

The Hon. S.G. WADE: Given that the minister has advised that there have been no declarations of adults as serious repeat offenders since 2003, I would like to quote a letter from the Attorney-General to Monsignor Cappo, as follows:

You may be aware that the law has, since 2003, provided for adults to be declared serious repeat offenders. In the five years since, no adult has been so declared. The senior judge of the Youth Court tells me that he thinks the declaration of young offenders will also be a rare event. It is quite possible that no young persons, or only one or two, will have received declarations in the first 12 months of the new law.

Given that there have been no declarations of serious repeat adult offenders since 2003, on what basis does the government assert that there will be one or two young people declared recidivist young offenders in the first year of this bill?

The Hon. P. HOLLOWAY: The government cannot be expected to guess the number of declarations that may be made with respect to serious repeat offenders and recidivist young offenders. The making of declarations is the responsibility of the prosecution authorities who make application and, of course, the courts that make the declarations. The making of such declarations relies on the exercise of the court's discretion. The government expects that the courts would seriously consider their responsibilities in the making of such a declaration for offences committed after the introduction of the serious repeat offender provisions in the Criminal Law (Sentencing) Act and the recidivist young offender provision in the Young Offenders Act. I suppose one hopes that the courts will pay some attention to the laws parliament passes.

The Hon. S.G. WADE: On that basis, if we have had no declarations under the adult legislation and have no guarantee of declarations of young offenders under the new bill, why does the government hope there might be any impact on youth crime through this legislation?

The Hon. P. HOLLOWAY: Is the honourable member suggesting that we should not try? If the courts decide for whatever reason that there should not be any, does that mean there is no case for making it? Surely the issue here is whether we believe that there is behaviour that represents serious repeat offending and whether it should be dealt with. I believe there is, as does the government, and I think the public of South Australia believes there is. One can only hope that the courts will do as they should do and reflect the wishes of the elected representatives of this state as expressed through the parliament.

The Hon. S.G. WADE: In the summing up on the second reading of the bill in the House of Assembly on 10 September, the Attorney-General said:

Remember that repeat juvenile offenders are few in number, representing about 15 or 16 offenders, as was estimated to be so in July 2008 by Lisa Perre, Youth Justice, Families SA. These are the 15 or 16 that meet the criteria of a recidivist young offender under the legislation.

That being the case, how long will it take for these 15 or 16 young offenders to be declared as recidivist young offenders in the government's anticipation of this bill being applied?

The Hon. P. HOLLOWAY: I repeat that it is really up to the courts as to whether they exercise that, as they have discretion: that would be part of the act. I have observed in my time in the parliament that the courts do tend, if somewhat slowly, to reflect the wishes of the parliament and the public in this regard and that, whatever their legal reticence might be in relation to exercising their discretion in legislation such as this, I would have thought that the overwhelming wishes of the public of this state—that something be done about such serious offending behaviour—would be reflected. Clearly the timing for that is up to the courts.

The Hon. S.G. WADE: Considering that it has taken six years, and the courts have not overcome their reticence to declare an adult a serious repeat offender, I suggest that the minister is being rather hopeful. Returning to the Attorney-General's comments in the House of Assembly, he indicated that Families SA estimated that 15 or 16 young offenders may qualify to be declared a serious youth offender under this legislation. Later in his comments he said:

We are talking about roughly 16 offenders who are part of the so-called gang of 49.

Will the minister confirm that the 15 or 16 offenders identified by Families SA are all members of the so-called gang of 49, as suggested by the Attorney-General?

The Hon. P. HOLLOWAY: That is not a question that relates to the bill. It is something the honourable member should pursue through the appropriate avenues. Obviously I do not have the information with me as to whether or not these youths are members of the gang of 49. I am sure that everyone in this parliament would agree that the behaviour by many members of that gang of 49, and like-minded behaviour, is not tolerable by the community: on that we all do agree.

What difference does it make whether or not particular individuals are members of this so-called gang of 49? It has been pointed out often enough that the term 'gang of 49' was created more by the media than by anybody else. It is not necessarily a gang, nor is there at any one time exactly 49 members, but it has become a media convenience. The question really is whether particular people belong to a title that the media has created. If one really wants to pursue individual behaviour, I suggest that, first, it is not appropriate in committee on a bill: one would have to be much more prescriptive as to exactly what information one wants about particular individuals.

The Hon. S.G. WADE: I note the minister's reluctance to provide information: the Attorney-General was quite happy to provide it in another place. I remind the minister that in the House of Assembly the Attorney-General said that this legislation was relevant to the government's response to the so-called gang of 49.

The Hon. P. HOLLOWAY: It is, and it relates to the behaviour of individuals who are described as being members of the gang of 49 or are closely associated with them. When people have literally hundreds of offences at a very early age, I believe that is serious repeat offending, and any reasonable person who looks at it would have a similar view.

The Hon. S.G. WADE: I move:

Page 3, lines 3 and 4—Delete 'Recidivist Young Offenders and Youth Parole Board' and substitute 'Miscellaneous Criminal Procedural Matters'

This is one of the smaller amendments and I will treat it as a test clause for the whole cluster. It is important to balance two points here: first, will the government's legislation have any effect on crime? The minister has confirmed this afternoon that the adult equivalent legislation has led to no declarations, so why would we expect any under this bill? That being the case, I reiterate the opposition's view that we do not think it is helpful to establish a class of young offenders as recidivist, as this approach could stimulate criminal behaviour rather than suppress it. It is not a model used anywhere else in the world. There is no stakeholder, other than people on the government's payroll, who have supported this legislation in the consultation phase. Young offenders who repeatedly engage in criminal behaviour can already be treated as adults under the criminal law, which we believe is a much better approach.

Also, this bill needs to be seen in the context of the assertive intensive case management regime that the government promised under its response to the Cappo report. We believe that the government has been tardy in implementing that. They were the arguments that I put in my second reading speech, and they are the key points in the opposition's argument for rejecting the recidivist young offender label. We seek the support of the committee.

The Hon. P. HOLLOWAY: I think it is a rather curious argument that, when you are dealing with young offenders who at a very early age have literally hundreds of offences, calling them serious repeat offenders will somehow or other stimulate them to commit even more. I would have thought that one thing that we might do is actually lock them up for longer periods and actually provide—perhaps for the first time—a long overdue bit of discipline. In some cases, it might actually work in reducing the crime rate. That might be something that does actually work. Perhaps in many cases it should have happened earlier, but that is another story.

The Hon. Mr Wade seeks to move a package of amendments that will remove references and provisions dealing with recidivist young offenders and the youth parole board. The effect of the amendments is to remove the distinction in the treatment of recidivist young offenders from other young offenders. These amendments will remove the court's power to make declarations as well as remove the powers of the Training Centre Review Board to sit as a youth parole board so that it may effectively monitor the progress of repeat offenders in detention, give appropriate consideration for their release and impose appropriate conditions additional to those that may be imposed on less serious offenders.

The amendments will effectively emasculate the reforms central to the government's legislation in dealing appropriately with a group of hard-core repeat young offenders who have not responded to past leniency, and there have been many cases of past leniency. The amendments will remove the centrepiece of the legislation and the government's reforms to tackle youth crime. Indeed, these amendments are virtually identical to the amendments that the member for Bragg attempted to pass in the House of Assembly after voicing her vociferous opposition to the bill. I find it odd that the honourable member should profess his support for the bill and then seek to move substantially the same amendments. His stance in relation to the bill is inconsistent. You cannot both support the bill and move and support these amendments at the same time. The positions are mutually inconsistent.

These amendments in emasculating the bill are hopelessly inadequate because they fail to protect the public from repeat offending, particularly in the aftermath of a crime. The public needs protection from these young offenders who constantly cycle in and out of detention, irrespective of the rehabilitation measures that they may have previously been exposed to. The government opposes the amendments.

Since the Hon. Mr Wade referred to Monsignor Cappo's recommendations, I should point out that recommendation 2 of his report states:

The objects of the Young 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.

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 community safety when sentencing serious repeat young offenders.

Specifically, the Criminal Law (Sentencing) Act has been amended to allow for the declaration of recidivist young offenders who can expect to be sentenced to no less than a custodial term in the event of having committed no less than three serious offences or two sexual offences against children under the age of 14. The custodial term has been increased from a minimum non-parole period of two-thirds of the sentence for young offenders to four-fifths of the sentence for recidivist young offenders.

Amendments to the Young Offenders Act will also allow for the creation of a youth parole board, which will assess the progress of a young offender prior to release as well as oversee the conditional release of recidivist young offenders. The assessment criteria to be considered by the court prior to releasing a recidivist young offender are more rigorous than those that apply to ordinary young offenders and include assessment of behaviour in detention as well as during any previous release from detention, the likelihood of reoffending and the likelihood of complying with conditions following release.

A victim's register will be set up similar to that which is set up under the Correctional Services Act to allow victims to receive information concerning a young offender and to allow victims to make submissions at parole hearings. Finally, the court will retain unfettered powers to impose the most stringent conditions upon a parolee as it sees fit to meet the circumstances of that offender and the protection of the community.

In relation to the provisions regarding community safety, when I was the police minister, these issues came up. If memory serves me correctly, this was one of the principal recommendations of the Commissioner of Police in the Cappo report. When I was police minister, the Commissioner of Police stressed to me very strongly that this was one of the areas in the law that need strengthening.

The Hon. DAVID WINDERLICH: I would like to speak in support of the amendment. I think the whole premise of the bill is based on the notion that longer sentences will make a difference. The government has not presented any evidence that that is the case. There is a lot of evidence from criminologists. I spoke to a criminologist last night who said that that is not, in fact, the issue, that it is about policing, detection and arrest rates; that is what makes the difference.

I am also concerned that the bill occurs in a vacuum without any focus by the government on issues such as crime prevention and restorative justice. In fact, the government has deliberately opposed or run down both those programs. I understand that we are now down to one person in the Attorney-General's Department who handles crime prevention.

I am concerned by the fact that the premise of juvenile detention has been on rehabilitation. Perhaps that needs to change, because we have a very small but nonetheless dangerous class of children. Perhaps for those children this does not apply any more, but I think changing that premise and that aim needs more consideration than we have seen here.

In fact, I think what we have is a feel good, feel tough bill. There is no actual guarantee or evidence that it will do anything, but it makes it look as though the government and parliament are doing something. Irvin Waller, a criminologist from the United States who came to South Australia last year, coined the phrase 'less law more order'.

I think that this sort of bill, in the context of a lack of attention to things like crime prevention, early intervention and restorative justice, is a recipe for more law and less order. We pass laws because it is what we can do and because it gets headlines, not because there is any real evidence that they will make any difference.

The Hon. P. HOLLOWAY: It would be a nice world if everyone could be rehabilitated. The sad fact is that we know that there are some individuals who, particularly in a certain phase of their life, do not respond to rehabilitation. We know that some of the offenders we talked about earlier committed offences literally within hours of being released from incarceration, even though they might have been in detention numerous times before, and that is the sad reality.

It is not that the government is giving up on rehabilitation. You will often hear middle-aged people who have a history of crime come to the conclusion at a later stage in their life that various things happened in their life. However, while they are out there committing quite serious crimes and, in some cases, potentially life-threatening crimes within hours of release, we have to deal with them accordingly. The Hon. Mr Winderlich can pretend that it does not happen, but the sad reality is that it does.

Since these issues were raised, I think it is important that I put on the record some information about the intervention and rehabilitation programs that deal with youth offending. Families SA provides intensive case management for young offenders, especially repeat offenders. Serious and repeat offenders receive a more intensive level of supervision and case management than low-level offenders.

In 2009, Families SA (as per the Cappo report recommendations) established the Intensive Case Management Service, which includes capacity for a pilot outreach home detention surveillance service in Port Augusta. The supervision element of this service provided by the ICMS has the following key features:

rigorous assessment of the young person's background, behaviour and needs; and

a minimum requirement that the youth attend 25 hours of structured programs each week—for example, education, training and offender programs, and work attendance as appropriate—with compliance supported during evenings and weekends.

Core elements cover:

education and training and emphasis on basic literacy and numeracy;

interventions to impact offending behaviour;

restitution to victims;

assistance in developing interpersonal skills;

family/carer support;

support to access services to address individual problems—for example, homelessness, drug misuse or mental health problems; and

through care for youth transitioning from detention into the community, including family/carer liaison, setting up transitional plans, especially education, training and employment opportunities and accommodation post release.

Supervision occurs in the context in which case goals are developed by the young person, case manager, family and support services; communication plans are established; documentation is prepared for court, review/Parole Board and the Community Protection Panel; and formal review and monitoring of case goal achievement occurs.

Further, the member sought information about what the government is doing to prevent children from becoming young offenders in the first place. Families SA's Youth Justice Directorate is generally not involved in pre-crime prevention activity. The directorate deals primarily with youth placed on an order by the courts, that is, community and custodial supervision.

Some youth support services are provided by the Department for Families and Communities. For example, non-government organisations across South Australia are funded to provide youth services through the Family and Community Development Fund. These services target young people at risk, including young people at risk of offending, young people at risk of homelessness, early school leaving and young refugees.

The Kumangka Aboriginal Youth Service is funded through the Department for Families and Communities, the Community Connect branch, to provide individual support, group work and the Streetwork Service for Aboriginal young people at risk of offending. The Streetwork Service is a joint initiative with Families SA's Metropolitan Aboriginal Youth and Family Services (MAYFS) that operates on Friday and Saturday nights in the Hindley Street region.

Streetwork teams collect vulnerable Aboriginal children and young people at risk and take them home. Follow-up work occurs with families in order to stop these vulnerable young people from frequenting the inner city at night. They might bump into the Leader of the Opposition from this place if they were out there!

The Panyappi program is a mentoring program offered through the Metropolitan Aboriginal Youth and Family Services for Aboriginal children and young people at risk. Young people at risk of offending—for example, those frequenting the inner city late at night or with lack of family support or older siblings already in the justice system—are targeted and paired up with a positive mentoring role model.

Families SA at Port Augusta provides the Port Augusta Youth Support Strategy (PAYSS), utilising a Streetwork model. It aims to reconnect children and young people with their family; focus on the prevention of offending and at-risk behaviours; ensure that the young person is transported to safe accommodation; link young people to accommodation, health and support services; and assist young people to become involved in community-based recreation activities.

Of course, there are many things we do as a government to engage and support young people in the community generally, and these are often targeted not at avoiding crime but at promoting positive communities. However, of significance is the Crime Prevention Grants Program, through the Attorney-General's Department, which includes funding for programs that have involved young people.

In an earlier contribution, if not today, the honourable member asked what interventions occur with young offenders and their family before the child moves from disruptive to dangerous. Poor parenting, lack of parental authority and guidance, risk-taking behaviours and even low-level antisocial behaviour on the part of children and young people do not necessarily result in engagement in criminal activity. Intervention with families is based on the intention of ensuring the protection of vulnerable children and young people and strengthening the resilience and capacity of families to care for children and engage them positively in the community.

The Department for Families and Communities funds non-government organisations across South Australia to provide families with children services through the Family and Community Development Fund. Funded programs include 34 Families with Children programs, five special family support grants programs and 14 Stronger Families Safer Children programs.

These programs include counselling and group programs to support families to develop skills in order to deal with risky behaviours. Families SA supports vulnerable families through case management utilising a family holistic assessment framework. When youth offending or risk of youth offending is identified as an issue for a family, Families SA social workers support the family to put strategies in place and to access appropriate support and programs.

As I say, the Hon. Mr Winderlich implied that in some ways the government is not dealing with rehabilitation issues. We are, but the fact is that there is a small number of serious repeat youth offenders within this state who have shown total contempt for the law. Their behaviour is becoming increasingly more dangerous, and I suggest it is up to this parliament to take some action so that that serious repeat offending problem can be dealt with.

The Hon. DAVID WINDERLICH: Will the minister outline the resources allocated to crime prevention in the Attorney-General's Department and schools?

The Hon. P. HOLLOWAY: In the context of this bill, as I said, what we are talking about is dealing with the most serious of those young offenders. I have provided some information more generally, and we can go on talking about that all day, but that is not really the purpose of this bill. Members opposite chuckle. The Hon. Mr Wade seems to think you can rehabilitate everybody.

The Hon. S.G. Wade interjecting:

The Hon. P. HOLLOWAY: He says, no; he does not say that.

The Hon. S.G. Wade: I'd say you never close the door to anyone.

The Hon. P. HOLLOWAY: This government is not suggesting we close the door, but at the same time what the honourable member opposite seems to be suggesting is that we should open the door and let people out, even though they commit crimes within an hour or two of getting out of gaol. They almost pinch the first car when they get out of the door. That is the reality. The honourable member can close his eyes to it, but this government will not; this government will respond to community needs. As I said, the strong argument that has been put to this government is that the issue of community safety needs to be given more prominence in relation to the laws as they affect young offenders in this state. That is what this government is doing.

The Hon. A. BRESSINGTON: I have one question. The minister mentioned that Families SA is there to respond to some of the issues. Will the minister outline what agencies and services Families SA is making available to people who are going through these problems with youth. Certainly, the evidence that I have seen is pretty scant.

The Hon. P. HOLLOWAY: Before the honourable member came in, I did outline in detail a number of programs. If there is family breakdown in our community for a range of reasons and the number of people is growing, obviously, that will put a lot more pressure on the system. I think everyone in here would understand that. Nevertheless, if you look at the budget that has gone into that area in recent years, you will see that it has increased significantly. Whether we can address every problem in the area is another matter. If you look at it over the 7½ years, there have been significant increases in the family area. Unfortunately, demand for the range of services offered by that department has also grown dramatically.

Amendment negatived; clause passed.

The Hon. S.G. WADE: My further amendments are consequential, but I will be moving an amendment in relation to the review.

Clauses 2 to 5 passed.

Clause 6.

The Hon. DAVID WINDERLICH: I have a question that relates to a number of clauses, so I probably need to ask it only once. I am still not clear what is meant by a serious offence. Will the minister give examples of a serious offence? In his earlier comments the minister mentioned hundreds of offences, so there seems to be a quantitative as well as qualitative idea. What makes it a serious offence? Is it the type of offence, or do we come to a point where a number of minor offences become a serious offence because there have been a lot of them?

The Hon. P. HOLLOWAY: The definition under the bill is that a serious offence is one which would attract a penalty of up to five years imprisonment. My advice is that that is the definition that is used in the bill.

The Hon. DAVID WINDERLICH: Does that include any property offences, for example, or are these all offences against the person? I think a few examples would be useful.

The Hon. P. HOLLOWAY: I refer the honourable member to the definition clause of the Criminal Law (Sentencing) Act 1998. The definition clause is 20A, interpretation, which provides that 'serious offence' means:

(a) a serious drug offence; or

(b) one of the following offences:

(i) an offence against the person under Part 3 of the Criminal Law Consolidation Act 1935—

which is assault or that type of offence—

(ii) an offence of robbery or aggravated robbery;

(iii) home invasion;

(iv) an offence of damage to property by fire or explosives;

(v) an offence of causing a bushfire;

(vi) a conspiracy to commit, or attempt to commit, an offence referred to in subparagraph (i), (ii), (iii), (iv) or (v)—

in other words, it is those offences above, so if it is a conspiracy to commit or attempt to commit the above offences—

(c) an offence that is committed in circumstances in which the offender uses violence or a threat of violence for the purpose of committing the offence, in the course of committing the offence, or the purpose of escaping from the scene of the offence.

Clause passed.

Clauses 7 to 23 passed.

Clause 24.

The Hon. S.G. WADE: I move:

Page 18, lines 16 to 23—Delete the clause and substitute:

24—Social Development Committee to inquire into and report on operation of Act

The Social Development Committee of the parliament must, within three years after the commencement of Parts 3 and 4 of the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act 2009, in consultation with the Attorney-General, inquire into, consider and report on the operation of the act (including any effect the operation of the act has had on the criminal justice system in South Australia).

This amendment relates to the government's proposal to have a review. The government's proposal is that it be the Attorney-General and the Commissioner for Social Inclusion who do the review. It is the opposition's view that considering that this bill, according to the government, comes out of the Cappo recommendations and the Attorney-General is responsible for this area of government administration, it would be helpful to have a more independent review of the bill and its impact. To put it in layman's terms, at the moment it is a case of Caesar judging Caesar.

This amendment proposes that the Social Development Committee of the parliament should be involved in the review. In that sense, it reflects the historical role of the parliament in relation to juvenile justice. The other place had a select committee on juvenile justice which I think reported in 2005. Monsignor Cappo indicated that that report was extremely helpful to him in preparing the To Break the Cycle report, and we believe that the Social Development Committee could make a valuable contribution.

First, I seek the government's agreement because the bill is as the government wanted. This is just a review element and we urge the government and other members to see the wisdom of this amendment and accept it.

The Hon. P. HOLLOWAY: The Hon. Mr Wade proposes an amendment for parliamentary review of parts 3 and 4 of the act by the Social Development Committee of the parliament within three years of its commencement. Parts 3 and 4 of the bill substantively amend the Criminal Law Sentencing Act and the Youth Offenders Act by introducing a similar legislative scheme for recidivist young offenders as adult repeat offenders, together with the creation of a Youth Parole Board to deal with the same.

This legislation was drafted in response to recommendations by the Commissioner for Social Inclusion in his To Break the Cycle report to the government. I refer to recommendation 2 of the report which states:

That the objects of the Young 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.

This bill strengthens the Young Offenders Act without undermining the diversionary mechanisms of that act to assist with the rehabilitation of young offenders. Given that, this bill seeks to implement the recommendations of the Commissioner for Social Inclusion. The government believes it is only appropriate that the Commissioner for Social Inclusion reviews the act and, therefore, the government opposes the amendment.

My own view is that I believe that the Social Development Committee can if it wishes at any time in the future, after the operation of this act, look at these sorts of matters. Given that the social inclusion commissioner was so involved with it, it is the government's view that it is only appropriate that the commissioner should review the act. As I said, I would not have thought that would have necessarily stopped parliament from having its own review of these issues at the time if it so wished.

The Hon. S.G. WADE: In response to the minister's comments, I make the point that one can play tautological games but, just as the Social Development Committee (on its own motion) can review the legislation, so can the Commissioner for Social Inclusion. This is a statutory time frame for a review of the act authorised by this parliament. The Social Development Committee has a majority of government members and it may not be convenient for the government of the time to allow the Social Development Committee to do a review of its own motion. We believe that it is appropriate for this council, which has continued to maintain principles of accountability for more than 150 years, to support accountability in this context by charging the Social Development Committee with the responsibility of the review.

The committee divided on the amendment:

AYES (14)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Hood, D.G.E. Lawson, R.D.
Lensink, J.M.A. Lucas, R.I. Parnell, M.
Ridgway, D.W. Schaefer, C.V. Stephens, T.J.
Wade, S.G. (teller) Winderlich, D.N.
NOES (7)
Finnigan, B.V. Gago, G.E. Gazzola, J.M.
Holloway, P. (teller) Hunter, I.K. Wortley, R.P.
Zollo, C.

Majority of 7 for the ayes.

Amendment thus carried; clause as amended passed.

Title passed.

Bill reported with an amendment.

Third Reading

Bill read a third time and passed.

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