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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-09-04 Daily Xml
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CRIMINAL LAW (SENTENCING) (GUILTY PLEAS) AMENDMENT BILL

Introduction and First Reading

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

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (21:45): 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.

The Criminal Law (Sentencing) (Guilty Pleas) Bill 2012 regulates and makes transparent the sentencing discounts given to offenders who plead guilty. The main objective of the Bill is to improve the operation and effectiveness of the criminal justice system by reducing current delays and backlogs in cases coming to trial. It encourages offenders who are minded to plead guilty, to do so in a timely way. A secondary objective of the Bill is to tidy up the operation of section 10 of the Criminal Law (Sentencing) Act 1988.

The Bill identifies 3 pivotal stages in major indictable cases which are the core around which provision for discount for guilty pleas can be made. The Bill provides for a modified and simplified 2 stage process for matters dealt with summarily, to reflect the different nature of the typical summary case and operational considerations in the Magistrates Court.

The Bill provides for a graduated series of discounts for pleas of guilty. The quantum of the discounts are dependent on the timing and circumstances of the guilty plea. The earlier the plea, the higher the discount. The Bill restricts the conferral of discounts for late guilty pleas but it permits adequate discretion to a court to ensure that defendants who may plead guilty at a late stage through no fault on their part or for some good reason are not unfairly prejudiced. Any perception that the Bill will allow offenders to escape their 'just deserts' and appropriate punishment by pleading guilty is mistaken.

The figures for the discounts in the Bill are not intended to be overly rigid or mechanically applied. They merely provide the upper limit at which a discount for a guilty plea can be set. Though there may be debate as to what should be the precise upper limits, the figures in the Bill are not overly generous. They are consistent with existing sentencing practice. What the Bill achieves is the codification of the rule that the earlier the guilty plea, the greater the discount. It places some limits on the freedom of the courts in providing discounts in sentencing.

The Bill is not radical or revolutionary. Its major effect is to make transparent and regulate what already happens or, at least, what should be happening, in the State's criminal courts on a daily basis. There has been strong support in both Australia and overseas amongst law reform agencies, judges, academics and legal practitioners for a statutory scheme to encourage early guilty pleas and regulate discounts for guilty pleas. Such a reform helps tackle delay and thus assists all parties in the criminal justice process, especially victims and witnesses.

The Bill is taken from the Criminal Law (Sentencing) (Sentencing Considerations) Bill 2011 (the Sentencing Considerations Bill). It was unfortunate that the Sentencing Considerations Bill was defeated in the Legislative Council in March 2012. There appeared to be no consistent or coherent theme to the opposition to the Bill; a Bill which had resulted from major and considered reform, drawing on the work and input of many sources and interested parties. The Sentencing Considerations Bill provided for a comprehensive legislative framework for the provision of sentencing discounts for pleading guilty and/or cooperating with the authorities (both for normal cooperation and exceptional cooperation in the context of serious and organised crime) and also tidied up and clarified aspects of the operation of section 10 of the Criminal Law (Sentencing) Act 1988. The subject matter of the Sentencing Considerations Bill is simply too important and beneficial to be left unaddressed following its defeat in the Legislative Council and the Government remains resolved to proceed with the reforms with appropriate changes.

The original Bill has been split into 2 new Bills. Exceptional cooperation in relation to serious and organised crime is the subject of the Criminal Law (Sentencing) (Supergrass) Bill 2012 now before Parliament. The guilty pleas portion of the Sentencing Considerations Bill is covered in the present Bill. Both the Criminal Law (Sentencing) (Supergrass) Bill 2012 and the Criminal Law (Sentencing) (Guilty Pleas) Amendment Bill 2012 (the present Bill) are intended to be complementary in operation.

The present Bill is quite different from the original version that was first introduced in 2011. The present Bill includes the Government Amendments to the original Bill that were unsuccessfully moved in the Legislative Council. These changes are designed to clarify aspects of the Bill's intended operation and, in particular, to make it clear that the Bill is not to prejudice defendants who through no fault on their part enter a late plea of guilty. Any discount for normal cooperation is for future consideration and has been left out of the Bill in light of the major practical problems that it gives rise to.

The 2011 Bill was carefully drafted to promote the Government's policy to encourage early guilty pleas but not so as to prejudice or disadvantage offenders whose delay in pleading guilty was due to unforseen circumstances beyond their control. Both the 2011 Bill and the present Bill contain a general exemption allowing any court to confer a discount of up to 30% for a late plea of guilty if the guilty plea is entered at the first practicable opportunity and the reason for the delay is beyond the control of the defendant. It was considered that this provision was adequate to protect the position of the defendant who pleaded guilty late in the proceedings through no fault of his or her own. However, to dispel any lingering concerns, the present Bill puts the situation beyond any doubt and there is now further specific provision to allow a discount in sentence in certain circumstances for a late plea of guilty if good reason exists for the delay in pleading guilty. The Law Society accepts that, with these changes, the main concerns that it previously expressed about the Bill are now removed.

The present Bill represents a sensible and balanced model. Furthermore, contrary to some assertions, the present Bill should not result in the granting of unduly lenient sentences for offenders through excessive discounts. The figures for the maximum discounts in the Bill for a guilty plea are consistent with existing common law guidelines. Indeed, by preventing a court in the absence of some good reason from treating a belated guilty plea on the doors of trial in the same way as a prompt and early guilty plea, the Bill will help prevent the granting of excessive and undeserved discounts for late pleas of guilty.

A great deal of effort and preparation going over several years has gone into the Bill. The Opposition's approach has been unhelpful and obstructive. It is a bit rich of the Opposition to talk about alleviating the pressures on the criminal justice system and helping victims when all it does is seemingly oppose anything concrete that the Government comes up with. Whenever the Government makes a move to legislate to try and improve the effectiveness of the criminal courts, to tackle delays and assist victims and witnesses, maximise the use of prosecutors' time and minimise the amount of time defendants have to frustrate the system, the Opposition comes up with new arguments to oppose whatever the Government is proposing to do.

Background

The Bill draws on recommendations made by His Honour Judge Rice of the District Court several years ago and, later, the Criminal Justice Ministerial Taskforce (CJMT). At the relevant time, the Criminal Justice Ministerial Taskforce was chaired by the then Solicitor-General (now Chief Justice) Chris Kourakis QC and comprised the Commissioner for Victims Rights and representatives from the State and Commonwealth Offices of the Directors of Public Prosecutions, South Australian Police, the Law Society, the Bar Association, the Legal Services Commission, Aboriginal Legal Rights Movement, the Department of Treasury and Finance and the Attorney-General's Department. The Courts Administration Authority was represented in an observer capacity.

In its first report, the CJMT highlighted the need to reform and rationalise the recognition to be given to offenders for guilty pleas. Amongst its recommendations was the introduction of a graduated series of sentence discounts to offer incentives for defendants to plead guilty at an early stage and to discourage delays in pleading guilty.

The original Bill was the subject of an exhaustive consultation process with many expert commentators. The draft original Bill was placed on the Attorney-General's Department website and public comment was invited. The final version of the original Bill was the subject of further comment by the heads of the judiciary and the Joint Courts Criminal Legislation Committee. The original draft Bill was sent for comment to a range of interested parties. Comment was received from the then Chief Justice, the Joint Courts Criminal Legislation Committee the Chief Judge, the Chief Magistrate, the Senior Judge of the Industrial Court, the Senior Judge of the Environment, Resources and Development Court, the Senior Judge of the Youth Court, the Law Society, the State DPP, the Commonwealth DPP, the Legal Services Commission, the Victim Support Service, Prisoners Advocacy, the Commissioner for Victims' Rights, the Police Commissioner, the Bar Association and Volunteering SA. The Solicitor-General for South Australia, Mr Martin Hinton QC, provided expert advice to the Government and officers of the Attorney-General's Department in finalising the Bill.

The result of the consultation process was inevitably mixed. Though there was near unanimous support for the Government's objectives to encourage early guilty pleas and to improve the effectiveness of the criminal justice process, there was an inevitable difference of emphasis in how this should be attained. On the one hand some parties considered that the figures for the discounts in the original Bill were too generous while, on the other hand, some respondents considered that the figures were too low and that the Bill was too restrictive of judicial discretion, especially in respect of guilty pleas entered just before trial. These concerns have been addressed in the present Bill to widen the court's discretion in certain circumstances to cater for a late guilty plea.

The problem

The increasing backlogs and delays in cases coming up for trial in South Australian higher courts have been a major and longstanding concern. If allowed to continue, this trend will seriously erode public confidence in the criminal justice system and cause major problems in the administration of criminal justice. It is a well known and apt maxim that 'justice delayed is justice denied'. Though this applies to defendants, it applies especially to victims and witnesses and has an especially adverse effect on vulnerable victims, such as children or those with an intellectual impairment.

The criminal trial list remains unsatisfactory. In most recent years, the number of new criminal cases received in higher courts has exceeded the number of cases finalised. The number of criminal cases still 'in the system' has therefore significantly increased. The 2009-2010 Courts Administration Authority Annual Report showed that, although the number of new cases received at the District Court had remained largely steady from the previous year, the number of criminal trials listed but not heard at both the Supreme Court and the District Court, had actually increased despite more cases being dealt with and concluded during the year in the District Court. The increased number of cases finalised in the District Court was insufficient to reduce the current lengthy backlog of cases pending in that court. The 2010-2011 Courts Administration Authority Annual Report showed a significant improvement in easing the District Court's backlog of outstanding trials but delay remains a major problem in the courts and late guilty pleas are a leading contributing factor to such delays.

Efficiency in the system is the responsibility of all those that participate in it. No single participant can solve the problem acting alone. It is for this reason that the Government will continue to look at a range of measures designed to contribute to the efficient administration of the criminal justice system without compromising justice.

The impact of the problem

Some of the many aspects of the negative consequences of long delays include:

1. Increased risk of offenders escaping justice through attrition of witnesses, including deterioration of witnesses' recollection of key events over time. This is a major problem with vulnerable witnesses, such as children or those with an intellectual impairment.

2. Compounding of the well known adverse psychological effects on victims of crime with delays inherently extending the period of anxiety for victims awaiting participation in trials and the giving of evidence. Again, this is a particular problem with vulnerable witnesses such as children or those with an intellectual impairment.

3. Increased legal aid and public prosecution costs as current protracted criminal procedure provides for many pre-trial hearings.

4. Increased prisoner time spent on remand by people who either will not get a sentence of imprisonment at all or who will be sentenced to imprisonment for a period equal to or less than that spent on remand—at a well-known cost to the prison system. South Australia has the longest remand times in Australia.

5. Police, prosecution, forensic science and defence (especially the Legal Services Commission) resources devoted to preparing and processing cases unnecessarily for trial, when those limited resources could be better devoted elsewhere.

6. Unproductive use of limited judicial time and resources, especially reserving courts for trials that ultimately turn out to be non-effective.

A guilty plea just before trial is especially undesirable as it magnifies many of the adverse effects of delay. The longer a case remains in the courts' list, the greater the delay it causes in other cases being reached. Consequently, getting cases out of the list should contribute to a reduction in delay.

What causes the problem

The number and timing of not guilty pleas has been clearly identified as a major, though not the sole, contributor to delays and inefficiencies in the criminal trial process. Defendants are perfectly entitled to plead not guilty and to require the State to establish their guilt beyond reasonable doubt, However, at common law there is almost universal acceptance that there may be a reduction in sentence for an early plea of guilty. In R v Place (2002) 81 SASR 395, 412-413, the Court of Criminal Appeal endorsed an earlier statement by Chief Justice King about the importance of a discount for a plea of guilty and the pragmatic rationale for such a discount in assisting the orderly and effective administration of criminal justice. Discounts in sentence were intended to encourage guilty persons to admit their guilt, instead of putting the State to the cost and trouble of a criminal trial and thereby contributing to the congestion of the criminal lists and distress to victims and witnesses. The Chief Justice observed that this is an important public policy consideration and judges were to be encouraged to foster an awareness amongst people charged with criminal offences, and those who advise them, of the advantage to be gained by a guilty person by acknowledging his or her guilt at the first reasonable opportunity. The Bill reaffirms and reinforces this important common law policy.

The present practice in relation to reducing sentences by reason of a guilty plea is unsatisfactory. An offender who pleads guilty to an offence before trial will attract a sentence discount varying in quantum but generally up to a third where the defendant pleads guilty at the first opportunity and up to 50% where the defendant pleads guilty at the first opportunity and provides substantial assistance to the Crown.

Over recent years, it appears that, as Justice Duggan noted in the consultation process, the common law requirement that the plea be early is too often overlooked. Reductions of 20% and 25% are not uncommon for pleas entered within a few weeks of trial and defendants even receive significant discounts for a guilty plea literally entered at the doors of court on the day of trial. There does not appear to be sufficient difference in practice between the reductions for early guilty pleas and those much closer to trial. The trend of belated guilty pleas is undesirable and should be actively discouraged. Late guilty pleas represent a wasteful use of limited public and judicial resources and are unhelpful to all the parties in the criminal justice process, including defendants.

A guilty plea is far swifter to progress and finalise than a criminal trial. Clearly, any defendant is entitled to plead not guilty and to insist that the State prove his or her guilt beyond reasonable doubt. But what is a source of considerable and particular concern is the continuing substantial number of defendants who plead not guilty initially and are committed for trial, only to plead later in the proceedings, often literally at the doors of court on the day of trial.

The problem of late guilty pleas has been a recurring one over recent years. The State DPP noted that in 2008-2009 late guilty pleas were the cause of 188 of the 686 fixed higher court trial dates that had to be vacated. This represented over a quarter of the higher court trials that did not proceed. In 2009-2010 late guilty pleas were the cause of 308 of the 883 fixed higher court trial dates that had to be vacated. This amounts to well over a third of the fixed higher court trials that did not proceed to trial. In 2010-2011 late guilty pleas were the cause of 386 of the 1073 fixed higher court trial dates that were non-effective. This again amounts to over a third of the fixed higher court trials that did not proceed to trial. Over half of the defendants who are sentenced in the District Court, only plead guilty at the District Court and not in the Magistrates' Court at committal. This all represents a waste of limited court, prosecution, police, forensic science, Legal Services Commission and prison resources. The situation places major pressures on the operation of the District Court and other agencies and contributes to South Australia's high rate of prisoners on remand. It is common for trials to take well over a year from committal to be heard. This all puts acute pressures on victims and witnesses.

The problem of court delays is major and complex. There is no simple answer. It is clear that additional resources, (even if available), would not, of itself, solve the problem. The Government has already increased the number of District Court Judges and provided additional courtrooms in an attempt to alleviate the problems. The District Court's figures for 2010-2011 show that the Courts Administration Authority has made significant progress in addressing delays but it is clear that major problems still remain. It is timely and appropriate to consider other avenues such as encouraging early guilty pleas through this Bill and other linked measures to improve court effectiveness.

The Bill in detail

The Bill has a number of major features and, where appropriate, provides for a different application in matters heard summarily compared to those dealt with in higher courts, to reflect the different procedures for those matters.

The Bill provides, in all cases, a discount of up to 40% for pleading guilty within 4 weeks of the defendant's first scheduled appearance, whether in person or through a legal or other representative, in a court in relation to the case. The defendant will be admitting his or her guilt at the earliest opportunity. This discount applies to all offences. It is expressly contemplated on the basis that the prosecution will not have effected full disclosure of its case. There will be some offenders who will be willing to plead guilty without sight or consideration of the prosecution's detailed evidence. More often than not a summary of the alleged offence, an 'apprehension report', will be the only information available. The defendant will be admitting his or her guilt at the earliest opportunity and the police or other investigative agency will be spared the time-consuming task of compiling a brief of evidence that would otherwise be required. This higher discount is expressly confined to this class of case and can only be varied in narrow circumstances, namely that a court was not available within the 4 week period to take the plea.

For major indictable charges not dealt with summarily under the Statutes Amendment (Courts Efficiency) Bill 2012, the committal is another suitable focal point under existing legislation and practice for the defendant to be properly expected to offer a meaningful and informed decision as to plea. At present, it is clear that far too many offenders plead not guilty at committal, only to plead guilty later in the proceedings. The encouragement and expectation should be for those defendants, who are likely to plead guilty in respect of major indictable offences, to do so, before or at committal and not at some later date.

The Bill provides for a discount of up to 30% for a guilty plea after four weeks from the defendant's first scheduled appearance but before the committal for trial. This will typically be after the prosecution has completed the bulk of its investigation and supplied the bulk of its evidence to the defence and the defence lawyers are in an informed position to advise their client as to the strength of the prosecution case and to the appropriate pleas.

The Bill provides for a discount of up to 20% for a guilty plea in the period after committal and up to 12 weeks from the arraignment date set at committal. This discount is not absolute and limited exceptions are provided in the Bill. This third stage of 12 weeks after the arraignment date accords with the preference expressed in the consultation process by the Chief Judge. This third stage is designed to maximise effective court listing and to tackle the all too common present practice of belated guilty pleas. For those offenders who are still likely to ultimately plead guilty but who have not already done so within 4 weeks of charge or at committal, then the third focal point is designed as a final 'filter' to catch such defendants and encourage them to plead guilty before the considerable inevitable final effort involved in preparing for trial.

There is a need for a relatively strict approach in this area. The Bill's policy is to discourage the all too common present practice of defendants pleading guilty just before the trial. In order to tackle this culture, a point in time long before a listed trial date should be the cut off for a discount in the ordinary course of events. This will facilitate the aim of the Bill in achieving cost savings and efficiencies through early guilty pleas.

Under the Bill, there will generally be no discount in the higher courts if the guilty plea is entered in the period after 12 weeks of the first arraignment date and up to, and including, the first trial date. However, the Bill is not inflexible or absolute. It is not intended to unfairly or unduly prejudice defendants.

If the reason for the delay in any case, whether at the higher or summary courts, in the defendant pleading guilty is beyond his or her control and he or she has pleaded guilty at the earliest practicable opportunity, the court will still have a limited discretion to confer a discount in sentence up to 30%. This exception cannot usefully be further defined. It may, for example, be due to the late service of important evidence that has a major bearing on the strength of the prosecution case. The plea of the defendant may be accepted to a lesser or alternative offence. The defendant may even have provided a firm and reliable offer to have pleaded guilty to a lesser offence to the court and the prosecution, but the prosecution initially rejected that proposal but accepts it on the day of trial. The reason for the delay in pleading guilty may even be due to other factors or parties, such as the court. The reason for the delay may not lie with either the defendant or his or her lawyers for the discount to be available. The onus is on the defendant to satisfy the court that this exception is made out. It is not contemplated that this will require lengthy hearings or the calling of witnesses to resolve. Indeed, it is contemplated that, in most cases, this will be capable of being achieved either 'on the papers' or on the basis of counsel's submissions without the calling of any evidence.

The Bill allows a further discretion for a discount of up to 15% for a guilty plea in the District or Supreme Court in the period of 7 days following an unsuccessful legal argument by the defendant. It is not intended that this discretion will arise for a guilty plea following a frivolous or untenable legal argument put on behalf of a defendant. However, the defendant may have a valid legal argument to raise such as that a vital piece of evidence such as an incriminating confession or the result of a search should be excluded but be perfectly willing to plead guilty without any further delay if that legal argument is rejected by the court. This provision therefore provides that if a defendant pleads guilty within 7 days immediately following an unsuccessful application by or on behalf of the defendant to quash or stay the proceedings or a ruling adverse to the interests of the defendant in the course of a hearing of the proceedings, the defendant can still receive a discount of up to 15%. To assist with alternative court listing arrangements and to minimise the stress and inconvenience to the all the parties and witnesses in the proceedings, the guilty plea would have to be entered after committal and at least 5 weeks before the first date set down for the commencement of the trial at the District or Supreme Courts. This timing is dependent upon the court listing the defendant's case for legal argument during the period in question as the clause clarifies.

The phrase 'commencement of the trial' is already well understood (see R v Wagner (1993) 68 A Crim R 81 and Attorney-General's Reference (No 1 of 1998) (1998) 49 SASR 1).

The Bill provides that the defendant will still be entitled to the applicable and relevant discount if the court did not list his or her case in the period in question. It has the specific effect in the context of the 15% discount that if the court did not list the pre trial legal argument in the period after committal and at least 5 weeks before the first date set down for the commencement of the trial at the District or Supreme Courts, the defendant is still entitled to a discount in sentence of up to 15% if the defendant pleads guilty within 7 days immediately following an unsuccessful legal argument.

Though court listing practices are clearly an issue for the Chief Judge, the Chief Justice and the Courts Administration Authority, it is hoped that this provision will encourage the parties in the proceedings to identify issues in dispute well in advance of the trial and the court to list pre-trial legal arguments significantly in advance of the trial date, rather than leaving them to the morning or day before a jury is empanelled. The introduction of binding rulings in the Statutes Amendment (Courts Efficiency) Bill 2012 should help provide the support for listing legal arguments significantly in advance of trial.

The Bill further clarifies that a defendant is still entitled to the relevant and applicable discount if the court for any other reason outside the control of the defendant is unable to hear the defendant's case during the period in question. It has the specific effect that if the court for reasons outside the control of the defendant was unable to hear the pre-trial legal argument in the period after committal and at least 5 weeks before the first date set down for the commencement of the trial at the District or Supreme Courts, the defendant is still entitled to a discount in sentence up to 15% if the defendant pleas guilty within 7 days immediately following the unsuccessful legal argument. This is subject to the requirement that a court must be satisfied that the only reason that the defendant did not plead guilty within the relevant period was because the court did not sit during that period; the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or the court was, because of reasons outside of the control of the defendant, unable to hear the defendant's matter during that period.

The 15% discount is confined to cases before the higher courts. It is unnecessary to extend this discount to the Magistrates Court given the very different nature of both the cases and listing pressures and practices in that court.

The final exception is that any criminal court has a residual discretion in limited circumstances to provide a discount in sentence of up to 10% if it is satisfied that a good reason exists for the defendant's delay in pleading guilty. It is accepted in certain circumstances that, despite the late guilty plea, there is merit in a residual discretion for a late guilty plea if good reason exists to avoid an unnecessary trial, especially in a sexual case and/or one involving a vulnerable witness. This residual discretion will only apply once any other discretion in the Bill (including the 30% and 15% discounts) for conferring a discount for a late plea of guilty has been considered and discounted. This residual discretion will be available in both the Magistrates' Court and the District and Supreme Courts. Good reason is deliberately not defined. It will depend upon the sense and discretion of the court in each particular case.

The timing of the stages for pleading guilty in the higher courts will be capable of variation by Regulation. This is if, as is quite possible, working and listing practices and pressures in the higher courts should change in due course. It is more efficient that the periods can be changed to reflect these practices and pressures by regulation as opposed to having to return to Parliament to change the periods. There is a need for the law to be responsive in this regard.

The Magistrates Court is the workhorse of the criminal justice system and deals with over 90% of criminal cases. The Bill provides for a simplified regime to reflect the differing practices and pressures applying where matters are dealt with summarily. The Bill provides for a discount of up to 30% for a guilty plea after 4 weeks of the first scheduled appearance, whether in person and/or through a legal or other representative, but before 4 weeks of the first date set for trial for matters dealt with summarily. This will typically be after the prosecution has satisfied its pre-trial obligations of disclosure so that the defence lawyers are in a position to advise their client as to the strength of the prosecution case and the appropriate pleas.

The Bill provides that no discount is permitted for matters dealt with summarily if the guilty plea is entered in the 4 weeks before the first trial date. A limited exception of conferring a discount of up to 30% for a late guilty plea is provided in similar terms to that for the higher courts if the delay in pleading guilty is beyond the control of the defendant and the guilty plea is entered at the earliest practicable opportunity. A further residual discretion of up to 10% is provided for a late guilty plea if a good reason exists for the delay in pleading guilty.

As with the higher courts, the timing of these stages in the Magistrates Courts will be capable of variation by Regulation. This is if, as is quite possible, working and listing practices and pressures in the Magistrates Courts should change in due course. As with the higher courts, it is more efficient that the periods can be changed to reflect these practices and pressures by Regulation as opposed to having to return to Parliament to change the periods.

The Bill contains an overriding provision for any court to be able to decline to provide all or part of a discount for a guilty plea within the ranges in the Act having regard to public interest considerations, namely where the gravity of the offence and/or the circumstances of the defendant are such that the sentence that would arise from conferring the discount would be so inadequate as to 'shock the public conscience'. This expression is not new and is consistent with that already used in governing prosecution appeals against sentence. It is expected that the use of this provision will be rare but it is a necessary provision to make very clear that the courts' discretion is to award up to the level of the discount—it need not award the level of discount, especially for the most repugnant offender or offences. In fact, it need not award a discount at all if the circumstances demand such a course.

It is not intended that the Bill will affect the general way in which the criminal courts go about formulating the correct sentence applicable in any given case. The High Court has said that the correct method for determining an appropriate sentence is by a process of 'instinctive syntheses' of all the relevant circumstances. The Bill is not intended to displace this approach to sentencing. The Bill only modifies this approach to the extent that it requires the court to state in its sentence the amount of any discount that it is providing to reflect the guilty plea. The Bill does not require the court to go beyond this and to state any discount for any other mitigating factor. These will still be left to the operation of the common law and section 10 of the Criminal Law (Sentencing) Act 1988.

The Bill retains the existing requirement that the court, in determining sentence, may not have regard to the fact that a mandatory minimum sentence is prescribed for the offence, even though it may result in the court fixing a longer non-parole period than the court might think was otherwise appropriate in the circumstances. This especially arises with respect to the general 20 year non-parole period provided for offences of murder. The policy and content of this requirement has been discussed by the Court of Criminal Appeal in its recent decision in R v A (2011) SASCFC 5. The Government will carefully consider its position on this important issue and respond to the court's judgement in due course. The present Bill is not the appropriate vehicle to reconsider the issue of mandatory non-parole periods, especially in respect of murder.

Though the consultation process for the original Bill revealed considerable support for retaining section 10 of the Criminal Law (Sentencing) Act 1988 as a central source of reference of the general principles of sentencing, the Bill, nevertheless, uses this opportunity to 'tidy up' the operation of that section. It is not a major restructure. Although section 10 in its original form merely set out the established common law principles of sentencing, section 10 has become increasingly unwieldy over recent years with the addition of various, sometimes ill defined, provisions. Therefore, for ease of reference and practical application, the Bill inserts a new section 10(1) that lists the original sentencing factors from 1988 whereas the additional factors added since 1988 have been included in a separate section 10(2). This should assist and 'tidy up' the operation of the provision.

Two consequential issues were also raised in the consultation process that are corrected in the Bill. First, a 'paramount consideration' identified in the existing section 10 of the Criminal Law (Sentencing) Act 1988 is the 'paramount need' to protect children from 'sexual predators' by ensuring the need for deterrence. The State DPP has identified that this provision is undermined in practice by some judges insisting that the prosecution prove something more than sexual offending against children, namely that the offending was 'predatory' rather than opportunistic. The State DPP suggests that the term 'sexual predator' be changed to 'an offence involving the sexual exploitation of a child'. This suggestion makes sense and accords with what was the original intention of Parliament in inserting this provision. Secondly, problems were raised with the interpretation of the existing provision dealing with the lighting of bushfires. This has been replaced by an amended provision which makes it absolutely clear the extreme gravity with which Parliament regards the offence of lighting a bushfire.

It is appropriate to provide a means of oversight at the end of 2 years after the Bill's commencement to evaluate its effect. A suitable person recommended by the Chief Justice will be appointed by the relevant Minister to conduct an inquiry into the operation of the new law after 2 years. The inquiry will specifically look at the transparency of the Act in respect of the sentences given to defendants and the effect of the Act in improving the operation and effectiveness of the criminal justice system.

Any perception that the Bill either goes too far and unfairly restricts the conferral of discounts or on the other hand is too generous and will lead to excessive discounts is mistaken. The Bill is both balanced and fair. It is necessary to restrict the conferral of discounts for belated guilty pleas in the manner stated in the Bill so as to tackle the underlying culture of late guilty pleas. There is adequate discretion in the Bill to avoid unfair or undue prejudice to defendants who plead guilty late in the proceedings for reasons beyond their control or for other good reason. Not only must the underlying culture of late guilty pleas be addressed but there are other linked issues that also require major reform. It is acknowledged that defendants and their lawyers are not to be solely blamed for the current delays arising from late guilty pleas. The effectiveness of the committal process and the need for timely and effective prosecution disclosure and accurate and informed and early prosecution decisions on charging are also significant. A prerequisite if the Bill is to achieve its stated objectives of reducing delays and encouraging early guilty pleas is sufficient and timely prosecution disclosure of its evidence. It must be emphasised that the problems of delays and inefficiencies in the criminal courts are complex and involve different agencies. The answer to these problems is as much administrative and cultural as legislative and new laws or additional funding will not necessarily address or resolve these problems.

There are problems in the present arrangements for public legal aid funding which perversely discourage early decisions and resolution and encourage delays and cases been taken to trial and contribute to guilty pleas been entered literally at the doors of court. There is an ongoing review that is looking at the funding arrangements by the Legal Services Commission in criminal proceedings, especially to outside lawyers.

The Bill should not be viewed as an isolated measure or a sole panacea. Rather it is an integral part of a series of wider and ongoing series of linked reforms that the Government is taking to improve the effectiveness of various aspects of the criminal justice process and to continue to address court delays and backlogs and improve the position of victims and witnesses.

This Bill is a major step forward in this Government's determination to address court delays. It sets a benchmark in Australian criminal justice reform.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law (Sentencing) Act 1988

4—Amendment of section 9—Court to inform defendant of reasons etc for sentence

This clause substitutes subsection 9(1) of the principal Act to require a court, when sentencing a person who is present in court (whether in person or by video or audio link) for an offence to state the sentence it is imposing and the reasons for the sentence.

A court is not, however, required to state any information that relates to a person's cooperation, or undertaking to cooperate, with a law enforcement agency

5—Insertion of section 9E

This new section is to be inserted at the beginning of Division 2 of Part 2 of the principal Act. That Division is entitled 'General sentencing powers'.

9E—Purpose and application of Division

This section clarifies the relationship between Part 2 Division 2 of the principal Act and the common law. The provision also makes clear the fact that, unless a particular provision in the Division expressly provides otherwise, nothing in the Division affects mandatory sentences, mandatory non-parole periods and similar special provisions.

6—Substitution of section 10

Current section 10 is to be repealed and a new section substituted.

10—Sentencing considerations

This section sets out the matters a court must, or must not, have regard to when sentencing a person for an offence.

7—Insertion of sections 10B and 10C

New sections are to be inserted immediately before section 11 of the principal Act.

10C—Reduction of sentences for guilty plea in Magistrates Court etc

This section sets out a scheme whereby a sentence that a court would have imposed for an offence may be reduced on account of the defendant pleading guilty. This section (as opposed to section 10D) applies where the sentencing court is the Magistrates Court, some other court sentencing for a matter that was dealt with as a summary offence, or in the circumstances prescribed by the regulations.

The maximum amount a sentence can be reduced is dependant upon when the defendant pleads guilty; subsection (2) sets out the maximum discounts available in relation to pleas at various stages in the proceedings.

The section provides for a defendant to receive the maximum available reduction despite having pleaded guilty outside the relevant period if the reason he or she could not meet the deadline was one set out in subsection (3).

The section also sets out matters a court must have regard to in determining the quantum of any reduction under the new section.

10D—Reduction of sentences for guilty plea in other cases

This section provides a scheme of the same kind as in section 10C in circumstances where that section does not apply. For example, this new section applies to the District Court and Supreme Court sentencing indictable matters.

The scheme is essentially the same as in section 10C, modified to take account of the different stages of proceedings applicable in relation to indictable matters.

8—Repeal of section 20

This clause repeals section 20, the effect of which is now located in new section 9E.

9—Substitution of Schedule

The current Schedule in the principal Act is to be repealed and a new Schedule is to be substituted that provides for an inquiry to be held 2 years after the commencement of the amendments proposed in this measure into the effect (if any) of the operation of the amendments on providing transparency in respect of sentences and improving the operation and effectiveness of the criminal justice system.

Schedule 1—Transitional provision

1—Transitional provision

The transitional provision provides that amendments made by this measure to the principal Act apply to proceedings relating to an offence instituted after the commencement of this measure, regardless of when the offence occurred.

Debate adjourned on motion of Hon. J.M.A. Lensink.


At 21:46 the council adjourned until Wednesday 5 September 2012 at 14:15.


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