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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-10-18 Daily Xml
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CRIMINAL LAW (SENTENCING) (GUILTY PLEAS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 16 October 2012.)

The Hon. S.G. WADE (15:36): My remarks are in continuation, and I thank the house for leave to do so. Both the previous bill and the bill before us today seek to create a graded scale of sentencing discounts available to those who plead guilty in the early stages of proceedings.

At common law, a criminal sentence may be reduced in response to an early guilty plea by between 25 and 33 per cent. Despite the Attorney-General's assertion that the maximum discounts are consistent with existing common law guidelines, the discounts available under this bill go beyond the common law and can be as high as 40 per cent.

Over 10 years, this Labor government has constantly repeated its mantra that it is tough on crime by ramping up penalties, but now the government is proposing to introduce the highest sentence discounts in Australia. Increase the penalties and increase the discounts, you end up with a zero sum game. However, the council needs to consider whether the changes in this bill go far enough to redeem a bill that previously did not win its confidence. Discounts for early guilty pleas, as I said in my contribution on the sentencing considerations bill, are often criticised. As one article put it in relation to sentence discounts:

[They are]...[a] plea bargain in its crudest form. It puts an inappropriate burden on the accused's choice to plead guilty, undermines proper sentencing principles, risks inducing a guilty plea from the innocent, undermines judicial neutrality and independence, and does not directly address [the issue of]...time and delay which motivated its introduction by the courts.

In addition, sentencing discounts, if too broad, can undermine public confidence in the courts. It is important that we consider the impact of this bill on the confidence of the public in the justice system. Experience of a similar bill in the United Kingdom is salutary. A proposal in the United Kingdom to decrease the sentence for early pleas was mauled by the popular press. Under the heading, 'Ken Clarke, the paedophile's pal', The Sun newspaper of 17 June 2011 railed:

Ken Clarke was blasted last night over the latest scandal in his crusade for soft justice—halving sentences for thousands of paedophiles.

Within four days, Prime Minister Cameron scrapped the proposal because, in his words, sentences would have become too lenient and criminals would have been sent the wrong message. This parliament needs to be careful that it does not undermine public confidence in the sentencing process by changes that it makes.

Repeated efforts by this government to enshrine secrecy, to underfund the courts and to replace public information with propaganda have already significantly undermined trust in the courts and the wider justice system. We need to be careful as a parliament that the legislation we pass does not do further damage.

Many in the community do not understand the sentences delivered by the courts and may well be baffled by a sentence discount regime such as this, which is not simple. It may well provide less clarity to offenders, victims and the community.

I think that the other point that needs to be made is that this initiative focuses very much on the behaviour of defendants and their lawyers. But there are a whole range of other initiatives that could be taken to reduce court backlogs, and many of those initiatives would have a lower risk to public confidence. Some of these matters might be reforms in relation to the committal process, prosecution disclosure, early prosecution decisions on charging and matters such as legal aid funding, yet this government is not foreshadowing action on any of them.

In that context, it was extremely disturbing this morning for me to receive correspondence from the Aboriginal Legal Rights Movement. Only today, that movement provided me with advice which undermines the government's rationale for this bill. Let me outline their argument. The Attorney-General John Rau tried to justify these measures in the other place, saying that 24 per cent of matters in 2008-09 and just over a third of matters in the following two years did not proceed to trial because of defendants pleading guilty in the late stages of proceedings. This, he says:

...represents a waste of limited court, prosecution, police, forensic science, Legal Services Commission and prison resources.

What the government did not indicate was that, of the 161 late vacations of trial related to late guilty pleas in the Adelaide courts in 2008-09, 43 per cent of these were entered for lesser charges offered by the DPP. In other words, the Office of the DPP offered late reductions in charges in return for a guilty plea.

Conversely, then it means that only 15.6 per cent of the late vacations of trial in Adelaide were due to a defendant pleading guilty late to the charge which was originally put against them. This compares to 15.4 per cent which were vacated in Adelaide due to a nolle prosequi (a decision of the DPP not to proceed) and 15.7 per cent of trials that had to be vacated due to no judge being available.

Considered as a whole then, the late decision of the Office of the DPP resulted in approximately 27 per cent of cases being vacated compared to late guilty pleas contributing to 15 per cent. This bill aims to incentivise an early guilty plea for that 15 per cent, but even if as much as a third of these defendants would have otherwise pleaded guilty earlier under the scale proposed in this bill, that would only equate to 5 per cent of the total Supreme and District Court trials that were vacated.

This information undermines the government's rationale for the bill. The bill may, at best, address a few cases, but it is arguable whether it will have the significant effect the government is assuring us that it will have. In this regard, I will be quoting from a copy of a letter attached to the letter to me from the Aboriginal Legal Rights Movement addressed to the Attorney-General, dated 16 October 2012:

...You will note that a significant number of the late guilty pleas which resulted in late vacation of trials had resulted from late concessions by the DPP in relation to pleas to lesser charges. It seems to ALRM that these figures are very significant, and indicate that late guilty pleas occur because of late decisions of the DPP, as well as from late decisions by defendants.

As such a Defendant in that predicament should not be prejudiced as to loss of appropriate discount in circumstances where they had offered and had had rejected an early plea and the matter was only resolved on the court house steps, by the DPP accepting the plea originally offered. I ask that you give this matter due consideration in the Parliament.

The opposition has received a number of representations raising concerns about the detail of this bill. Some of these matters are matters for judgement. The opposition will not be moving amendments to the bill on all these matters, but we will be monitoring the impact of the bill as a whole. The opposition will be moving to see South Australia follow the lead of Western Australia in amending the maximum sentence discount for an early guilty plea to 25 per cent.

As I indicated earlier, the Weatherill government has chosen to lift sentence discounts beyond the common law level to a top discount of 40 per cent. Since the sentencing considerations bill was tabled in this parliament, the Western Australian parliament has legislated in this area. Western Australia has chosen not to establish a graduated regime of sentence discounts as this bill does. Western Australia is setting a maximum discount of 25 per cent.

In this context, I would like to quote the second reading speech on the bill by the Western Australian Attorney-General, the Hon. Michael Mischin, delivered on Thursday 16 August 2012:

This bill continues the government's program of making court processes more transparent to the community by setting a maximum discount of 25 per cent for a guilty plea and requiring courts to openly state the percentage discount they grant in recognition of a plea of guilty. It demonstrates the state government's commitment to ensuring that the Western Australian criminal justice system is simple, transparent and understandable to both the general public and offenders facing courts, and produces results in sentencing that accord with community expectations.

The government recognises that some credit should be given for a plea of guilty for essentially utilitarian reasons, against a backdrop of the presumption of innocence and the entitlement of an accused to have the prosecution prove its case against him or her beyond reasonable doubt.

Currently in Western Australia, cases suggest an early plea of guilty may attract a sentence of between 20 per cent and 35 per cent, depending on the circumstances. However, the trend has been for a standard discount of 25 per cent to be given for a plea of guilty, and not only for one at the earliest reasonable opportunity. Limiting the discount available for a plea of guilty will assist with addressing community disquiet about the sentencing process.

The Sentencing Amendment Bill 2012...limits the discount to a maximum of 25 per cent off the sentence that an offender would otherwise serve.

The Liberal opposition thinks this is a strong argument. This discount level of 25 per cent provides the incentive to offenders, whilst still protecting the interests of victims and the wider community. The government's focus is all about an incentive to offenders: fess up early and we will give you 40 per cent off. You can commit the crime; you won't necessarily have to do the time.

We consider the government has gone too far and that we should legislate in a similar manner to our sister state of Western Australian and limit the maximum discount to 25 per cent. After all, on one hand Western Australia and South Australia both share the same common law. The Western Australian government has, consistent with the common law, suggested a discount of 25 per cent.

The South Australian government wants to give what is more than 50 per cent more, namely, 40 per cent. Secondly, as we hear repeatedly from this government, we are part of a national community. What message does it send to defendants if, in Western Australia, they are offering 25 per cent discount yet in South Australia you get 40 per cent?

In contrast, the opposition's focus is on the victim and their best interests. We acknowledge that there is a community benefit and in fact a benefit to victims in having guilty pleas made early, but this should not go so far as to undermine the interests of victims and the interests of justice in fair penalties. The most objectionable element of the original bill was the 'no discount' period.

While there is now a residual 10 per cent discount, I seek an explicit confirmation from the government as to whether the good reason discount available at the door clearly covers the benefit to victims and witnesses of a full trial being averted. That question is fundamental, and I seek an answer from the government in the summing-up stage.

The courts are about delivering justice, justice that the community can have confidence in, justice for the offender and the victims and the community. In closing, I go back to the question I raised earlier: is this bill worth supporting?

As I noted, the bill contains a number of changes that address some of the concerns raised during the debate on the last bill and it again vindicates the good work of this council to produce better laws. The question we need to ask ourselves and which we will continue to consider in the second reading and the committee stages is whether this bill is worth supporting. We look forward to that discussion.

The Hon. CARMEL ZOLLO (15:49): I rise to add my support to this bill. The Hon. Stephen Wade has just placed on the record some statistics attached to a letter he received from the Aboriginal Legal Rights Movement, and I am certain the minister will be responding to him, either in summing up or in committee.

The bill before us is an important measure to both improve the effectiveness of the criminal courts and help tackle present delays and ease the pressures on victims and witnesses. The bill introduces a formal graduated framework to regulate the granting of discounts in sentence for pleading guilty. Such a scheme has been widely supported, both in South Australia and elsewhere, by lawyers, judges, law reform agencies and victims groups.

In essence, the earlier the plea, the greater the potential discount in sentence. This is how it should be. The courts should be able to list cases in the most effective manner. Victims and witnesses should know at the earliest possible time that they will not have to testify and can try to get ahead with their lives without the grim prospect of a trial hanging over their heads. This legislation is about assisting victims and witnesses. At present, the theory is: the earlier the guilty plea, the greater the discount in sentence should be; but it is well known that, in practice, defendants may well receive a significant discount in sentence despite literally pleading guilty on the day of trial.

As former Justice Duggan noted in the consultation process, the theory that the guilty plea should be early to attract a significant guilty plea is often ignored in practice. This is wrong. Defendants should not be able to delay—often for tactical reasons—without some good reason, pleading guilty at a very late stage and still receive a significant discount in sentence for their belated plea of guilty.

This bill encourages defendants to plead guilty at an early stage and seeks to tackle the real problem of delays due to late guilty pleas. However, the present bill, consistent with the amendments that were moved in the Legislative Council on the last occasion, confers ample discretion to the court to avoid penalising defendants who may have delayed pleading guilty through either no fault of their own or for some other good reason. I have to stress that it is about ample discretion to the courts.

There is ample protection for defendants in the bill. The Law Society accepts that, with these changes, its original main concerns regarding the previous bill are allayed. This bill will not lead, as was asserted last time in debate by the opposition, to undue leniency in sentences. If anything, by preventing significant and undeserved discounts for late guilty pleas, the bill will help prevent undue leniency. The figures in the bill do not prescribe discounts: they merely fix the maximum amount a court can go to in its discretion. In the consultation process, different people had different views about the precise figures. Some wanted a little more, some wanted a little less. It would be impossible to achieve uniformity. The figures in the bill are consistent with what in theory should be the existing practice.

The Hon. Stephen Wade mentioned what has occurred in Western Australia. Clearly, after a consultation process here in South Australia, what I have outlined would appear to be the consensus. It was most unfortunate that this bill was defeated in a previous version when it was last before this chamber. It was difficult to identify any consistent or coherent theme to the opposition's position on that occasion. As was highlighted by the Attorney-General in the House of Assembly debate, a great deal of work and preparation over several years had gone into that bill. The previous bill, and indeed this bill, draw on the important work of His Honour Judge Rice, the Criminal Justice Ministerial Task Force and an extensive consultation process.

This bill is an important measure to promote court effectiveness and to assist vulnerable witnesses and victims who should not have the prospect of a trial hanging over their heads for many months only for the accused to plead guilty on the day of trial. I urge all honourable members to give this bill on this occasion their support.

The Hon. K.L. VINCENT (15:53): I will be brief, as I merely wish to place on the record my concerns regarding this bill, and I note that they seem to be concerns that several members also share. I would first like to point out that I am not opposed, as a general position, to codifying in legislation the discounts that the judiciary might elect to give to an accused person in the event that they choose to enter an early guilty plea. I am, however, unable to support this particular bill as I believe there are some serious problems with the way the issue has been approached.

I hold grave concerns that the bill holds far too optimistic a view of this state's criminal justice system. I fear that the expectation that within four weeks of their first appearance in court a defendant will have all the information before them to enable them to confidently enter a plea and that they will have, in the first instance, been charged with the appropriate offence is a fanciful one.

While I recognise that there are a range of discounts available, it seems highly unusual to me that we should, in effect, punish the accused for the failure of those prosecuting them to lay the appropriate charges or provide accurate information in a timely manner. I hold similar concerns regarding the need for the judiciary to consider—when determining how great a discount to provide—whether or not a defendant has pled guilty to all of the charges laid against them. The apparent presumption here is that an accused person must be guilty of all the charges brought if they are guilty of one of them.

This section makes no reference to whether or not a finding of guilt must be made in relation to such charges. Is the accused to be penalised for pleading not guilty to charges in relation to which they are found not guilty or charges upon which the prosecution tenders no evidence? While I reiterate that, again, I am not opposed to the general objectives of this bill, the apparent deficiencies that I have highlighted prevent me from supporting its passage in its present form.

The Hon. M. PARNELL (15:56): The last time we considered this issue we had a single bill before us, the Criminal Law (Sentencing) (Sentencing Considerations) Amendment Bill 2012. The government has now seen fit to divide that into two bills and, in the process, make some changes. I last spoke on this matter on 29 September 2011. I do not propose to go over all of the issues I raised back then, but I do want to touch on a couple of issues. I say at the outset that I will speak briefly to this bill but my remarks can be taken to equally apply to the second bill, as I consider that the two form part of a package. I will just speak the once but I will have my remarks considered as part of each bill.

Last time, I said that the Greens supported the concept of sentencing discounts being applied by judges and magistrates in certain circumstances, such as early guilty pleas and for cooperation with the police. That position stands, and that is basically the subject matter of these two bills—they are two principles that we support. The question that was before us in the earlier sentencing bill is the question that is before us now; that is, whether or not the regime currently contained (primarily) within the common law should be codified and, if so, whether the range of sentencing considerations and discounts in the bill are, in fact, an improvement on current arrangements. That is the fundamental question before us.

I also note that one of the key considerations for the Greens in these matters is the extent to which it is appropriate or desirable for the parliament to interfere with judicial discretion. We have seen in the past that where the parliament has gone too far in trying to direct judges as to what to do the High Court has come down on us like a tonne of bricks, and we have seen that in the serious and organised crime legislation. We have also seen, in relation to His Honour Chris Kourakis' decision as to the validity of the hoon driving and car crushing measures, that there are some serious doubts that arise when you try to overly constrain the judiciary from performing its role.

I have serious fears for other legislation that is before this parliament, such as the notion of confiscating every asset owned by a drug dealer regardless of how that asset was acquired. I think that that is certain to be the subject of court action if it gets further, but also, on the same issue, I notice that sometimes the government is prepared to go in the other direction and tries to give the courts a little more latitude and a little more ability to exercise their discretion. Again, another bill before us in relation to the non-publication of the identity of defendants in sexual offences is a case in point. So with the majority of bills it seems we are trying to constrain the judiciary but there is occasionally one that crops up where the government tries to give the judiciary a bit more latitude.

I was very interested to hear the statistics which the Hon. Stephen Wade alluded to. I have not seen that letter which he referred to but, if the contents of it are correct, it would appear that the contribution made to cases falling over in the superior courts due to late pleas of guilty has been overblown. If the figures that the Hon. Stephen Wade referred to are correct, then it looks like it is only some 15 per cent of cases where that is the problem, which means that 85 per cent of the problem is elsewhere.

Again, if the Hon. Stephen Wade's figures are correct, it seems that the unavailability of judges is as significant as late pleas of guilty in terms of cases not proceeding. The Hon. Carmel Zollo suggested that the Attorney would be keen to address those statistics and I think she is right. I am very keen to hear the response of the government, because it is one thing to identify one part of the problem but we need to identify the whole of the problem.

The Greens' position, as I have said before, is that we prefer in matters of sentencing that the balance should be struck by the parliament determining the considerations to be taken into account, and then the judges being given some latitude to determine how those sentencing considerations are applied. That is basically how it works. We have a list of things that judges have to take into account in section 10 of the sentencing legislation but this bill goes that step further in applying actual percentage figures.

I note that the opposition has some amendments on file which we need to thoroughly consider but, at first blush, it seems as if the Liberal approach, which is to reduce the percentage discounts available, in fact, makes it much harder for judges to exercise discretion and the range within which they can move is reduced. I am not sure that that is the right way to go but I look forward to the debate on that point.

One issue that I raised in the briefing that I had with government officers was to what extent the judiciary has the ability to work around this legislation. When I say 'work around', I do not mean to suggest that judges would not comply with the law of South Australia, but it seems to me that the work around goes like this: if a judge decides that an appropriate penalty for someone is two years in gaol, and if a 30 per cent discount was available, then the judge would sentence them to three years in gaol, apply the 30 per cent, and it comes back to two years.

If the judge is thinking that two years is an appropriate period and there was only a 15 per cent discount available, they would sentence them to 2½ years gaol, apply the 15 per cent and we are back at two years. In the lowest of the proposed statutory figures, with the 10 per cent discount, (my maths might be a bit rubbery here) the judge would sentence them to two years and a month and a half or something and then apply the 10 per cent discount and we are back to two years.

At one level I am wondering whether the parliament is perhaps being too clever by half because it would also seem that applying these statutory figures for discounts could have implications for the appeal process where people appeal against their sentence. I do not pretend to be an expert in this field, but my guess would be that whether it is an appeal by the prosecution because a sentence was manifestly inadequate or an appeal by a convicted person that the sentence was manifestly excessive, it would seem that at present they could appeal on a range of grounds.

It could be the head sentence and the quantum of any discount that was applied. If the quantum of discount is actually set out in legislation, presumably all that is left is the head sentence. Given that in most of our criminal provisions it is only a maximum that is set out in the legislation, there is a great deal of discretion for the judge to work out where on the scale of offending a certain person's conduct fits.

I might put that as a question on notice for the minister: what is the implication for appeals against sentence by either the prosecution or the defence by locking in certain percentages? Does that make it less likely or more likely that appeals will succeed? With those observations the Greens, whilst we have serious reservations, as I say, about the fundamental principle behind the legislation—which is that codification is good—are happy to see this bill through the second reading stage and we look forward to the debate in committee.

Debate adjourned on motion of Hon. G.A. Kandelaars.

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