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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-11-15 Daily Xml
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CRIMINAL LAW (SENTENCING) (GUILTY PLEAS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 13 November 2012.)

The Hon. D.G.E. HOOD (15:58): On 15 March 2012 I spoke on the package of bills introduced by the government concerning serious crime, including the Criminal Law (Sentencing) (Sentencing Considerations) Amendment Bill on which the bill that we are presently debating is based. A short summary of the points that I then made are, firstly, that sentencing is obviously a complex process, and a requirement for a court to specify the amount of a percentage discount of a sentence because of a guilty plea makes the process more complex.

Sentencing is not a simple, mathematical calculation, obviously. Initially there was some judicial resistance to stating a percentage discount for a guilty plea, as I understand it, but the tide has turned over time and it became accepted that the advantages of specifying the percentage discount was such that it should be done.

Secondly, the common law already has a scheme in place for a court to state percentage discounts using judicial discretion. The reason for legislation to cover the same issue is so that defence lawyers, as I understand it, can show their clients what the legislation actually says and the defendant can see in black and white that an early guilty plea can gain a significant reduction in sentence. A defendant will see this as a greater encouragement for an early plea than reliance on the general discretion of the courts based on common law. That makes sense to me.

These points apply equally to the present bill which is quite similar to the previous bill in its terms and purpose, as we know. In the context of the present bill, I have had cause to review in some detail the numerical percentage discounts for guilty pleas set out in the bill. I note that there are amendments to this bill proposed by the Hon. Stephen Wade which I am favourable to. My own consideration of this issue led me to the conclusion that what is needed is a significant discount so that there is very real incentive for a person charged to plead guilty where appropriate—that is, assuming that they are guilty—yet a maximum discount that is not so high so as to indicate to a court that the percentage discount presently given should be increased in the future.

It seems to me that if a person pleads guilty at a very early stage and thereby avoids the need to arrange witnesses and prepare a trial, a fair maximum discount would be a third (or 33⅓ per cent). That is still a substantial discount, I think anyone would agree with that. Consider, for example, a six-year prison sentence discounted to four years—a very attractive proposition, I would imagine, to the accused or the perpetrator. It is for that reason that I will propose an amendment—indeed, I have filed an amendment that members would have to that effect—with other percentage discounts being adjusted in a corresponding way.

Let me emphasise that I strongly support the concept of the bill, that is, that an incentive should be given for pleading guilty early where someone is genuinely guilty, and I think it is fair to say that both the government and the opposition have taken that view. I think the stand against serious crime, and even less serious crime, to make it more expedient for the courts is one that should be encouraged where appropriate. The number of cases going through the courts system is such that it places a strain on the administration of the justice system—something we are all aware of.

That is one reason to encourage early guilty pleas by defendants but perhaps the major reason to encourage early guilty pleas is that, upon entry of a plea, witnesses no longer have to face the prospect of giving evidence and being cross-examined which can be very daunting and, in the cases of serious and violent crimes, a very unpleasant task for witnesses in particular if they are related or somehow attached to the victim.

The earlier this position is reached—that is, that a plea is entered and a discount agreed upon—the less traumatic it is for potential witnesses and the less time and cost is wasted in preparation for a trial which is something everyone benefits from. My view, therefore, is that any system to encourage guilty pleas—and I stress where the person is actually guilty, of course—is a positive move and something that we would support. Family First certainly supports this bill. As I said, there are amendments in the name of the Hon. Stephen Wade and myself. I think we are yet to see how they fall.

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) (16:03): I thank honourable members for their valuable contributions to this through the second reading stage of this bill and I thank members who indicated support for this important legislation. This bill is an important measure to encourage early pleas of guilty. It is intended to help address delays in the criminal courts and to reduce the stress on victims and witnesses. For years courts have taken into consideration the timing of a plea when determining whether a discount to the sentence ought to be granted to that plea. This bill does no more than place a ceiling on the available discount, depending on the time and circumstances in which the plea was made. The bill does not in any way encourage the application of a higher discount than that which is already available under common law.

The bill also recognises that a delay in pleading guilty may not necessarily be the fault of the defendant. The bill includes a discretion for the court to still provide discounts for a late plea. It is important at the outset to correct the Hon. Mr Wade's claim that the common law does not currently allow for a discount beyond 33 per cent. I am advised that this statement is incorrect and I invite the Hon. Mr Wade to consider the Queen v Ellis (1986) 6 NSWLR 603 and Ryan v the Queen (2001) 206 CLR 267.

The bill incorporates the guilty plea aspect and the incidental sentencing changes from the Criminal Law (Sentencing) (Sentencing Considerations) Amendment Bill. That bill was unfortunately defeated earlier this year. This bill and its earlier iteration was the result of an extensive consultation process with expert parties, including members of the judiciary and the Joint Courts Criminal Legislation Committee.

The opposition's approach to this bill has been inconsistent and unhelpful. The opposition stated that the earlier iteration of this bill was too harsh in its application to defendants, both in terms of the amounts of the discounts and the scope for granting them. Amendments were filed by the opposition that would have increased both the maximum amount for discounts and the discretion to grant discounts.

I pause here to note that the Hon. Mr Wade, in his second reading contribution, strongly condemned a United Kingdom proposal to allow sentencing discounts of up to 50 per cent, the exact percentage preferred by the Hon. Mr Wade himself in his original amendments to this bill. I draw that inconsistency to the attention of the chamber. I digress: ultimately, the Hon. Mr Wade's amendments were not moved. It appears that in the intervening period before the current bill was introduced, the opposition has performed a fabulously executed backflip and now wants a much lower discount for early pleas of guilty. The government commends the Hon. Stephen Wade for recognising the error of his earlier approach but is disappointed that his second approach is as misconceived as his first. The government will put forward its position on these amendments during the committee stage.

In his second reading contribution, the Hon. Mr Parnell asked whether a judge may fix a head sentence in light of the available discount rather than fix a head sentence that is appropriate in all of the circumstances of the offence, and then later apply the appropriate discount to that head sentence. I have been advised that the answer to this query is that there is no way for the parliament to prevent this method of circumventing the legislation. Parliament must trust the courts to apply the law as laid down in parliament and in the common law and not to apply tricky arithmetic, if you like, to achieve a desired result. Again, I thank honourable members for their contribution and their support and look forward to dealing with this expeditiously through the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

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

Page 3, line 7 [clause 4, inserted subsection (1)]—After 'offences,' insert 'in simple language,'

Clause 4 of the bill removes the current obligation on the court to explain a sentence to a defendant in simple language. The specific provision in the act is as follows:

9(1)(b) cause an explanation of the legal effect and obligations of the sentence and, where appropriate, of the consequences of non-compliance with it, to be given in simple language to the defendant.

This requirement gives the person being sentenced the best opportunity to understand the implications of their sentence. The government wants to remove it by this bill. There is a chronic problem with sentenced prisoners, parolees and those on bail offending and reoffending. They are at greater risk of offending and reoffending when they have not clearly understood their sentence. Ironically the provision before us may actually contribute to further court backlogs for breaches committed out of ignorance rather than malice. I previously filed amendments to address this concern, but apparently the government did not consider them worthy to be included in the tabled bill.

Again, the government bill raises access to justice issues. Those who are guilty of crimes are entitled to understand the consequences of their actions and their punishment. This understanding is fundamental to their appreciation that justice has been done. It is fundamental to effective deterrence. It may also facilitate rehabilitation. A sentence will hardly hit home to the offender if they cannot actually appreciate what it means for them. I commend the amendment to the council.

The Hon. G.E. GAGO: The government opposes this amendment. It is the government's position that South Australian magistrates, judges and justices do not need to be told to speak in simple language. The judicial officers of this state are well aware of their obligation to ensure that those who are sentenced understand the sentence and the reason for that sentence.

The Hon. D.G.E. HOOD: Family First supports the amendment.

The Hon. J.A. DARLEY: I will not support the amendment.

The committee divided on the amendment:

AYES (9)
Bressington, A. Brokenshire, R.L. Dawkins, J.S.L.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A.
Ridgway, D.W. Stephens, T.J. Wade, S.G. (teller)
NOES (10)
Darley, J.A. Finnigan, B.V. Franks, T.A.
Gago, G.E. (teller) Kandelaars, G.A. Maher, K.J.
Parnell, M. Vincent, K.L. Wortley, R.P.
Zollo, C.
PAIRS (2)
Lucas, R.I. Hunter, I.K.

Majority of 1 for the noes.

Amendment thus negatived; clause passed.

Clauses 5 and 6 passed.

Clause 7.

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

Page 5, line 28 [clause 7, inserted section 10B(2)(a)]—Delete '40%' and substitute '25%'

I indicate that the opposition proposes that this should be treated as a test amendment for amendments Nos 3 and 4 and 6 to 10 standing in my name. As I indicated in my second reading speech, the Liberal opposition is moving to decrease the maximum sentence discount proposed in the bill from 40 per cent to 25 per cent. Under the common law, discounts on sentences between 25 per cent and 33 per cent are available if criminals plead guilty early. The bill proposes increasing the basic discount by at least one fifth.

As I also noted during my speech, the government of Western Australia has tabled the Sentencing Amendment Bill 2012 setting out 'a maximum discount of 25 per cent for a plea of guilty and requiring courts to openly state the percentage discount they grant in recognition of a plea of guilty'. I note that other states have not codified this area. We share the same common law as other states and, in particular, Western Australia. It would be strange if our codification of the discount was going to be 15 percentage points higher than theirs.

Further, I am uncomfortable with such a large discrepancy with a sister jurisdiction on a general discount. Surely, penalties will vary between jurisdictions, but for general sentence discounts to vary so significantly acts as a perverse incentive to crime in South Australia. This is Labor's message to criminals: come to South Australia; if we get a conviction against you we will give you a discount more than 50 per cent higher than Western Australia.

The opposition amendments propose the upper limit of the discount be reduced to 25 per cent in line with recent Western Australian developments and that other discounts be reduced to generally maintain the proportions of the government's codification. As I said, the opposition amendments propose the upper limits be reduced to 25 per cent. Accordingly, where a discount of 40 per cent is proposed by the government, our amendments reduce it to 25 per cent; a discount of 30 per cent would be reduced to 15 per cent; and, finally, that where a discount of 15 per cent or 20 per cent is proffered by the bill, that this be reduced to 10 per cent.

We support the retention of a discount of 10 per cent at the doors of the courts to ensure that there is always at least some incentive for people to plead guilty even up until the last minute. This guilty plea, while it may have consumed significant public resources will, nonetheless, save victims and witnesses from reliving their experiences in court.

I have spoken at length for the need to reform the government's proposal to put the emphasis on justice rather than administration. The opposition amendments are a step towards this. It is hypocritical for the government to ramp up penalties while increasing the discount. They are driving with one foot on the accelerator and one on the brake. It is completely disingenuous and shows how directionless the government has become on justice policy. In contrast, the opposition amendment provides a clear alternative that shows a commitment to transparency in the justice system and a focus for justice for victims. I commend the amendment to the council.

The CHAIR: Mr Wade, you have mentioned that this was a test for which amendments—just to assist me and the committee?

The Hon. S.G. WADE: Certainly. I submit to the chamber that they are amendments Nos 3 and 4 and 6 to 10.

The CHAIR: Thank you very much.

The Hon. G.E. GAGO: The government rises to oppose this amendment. The effect of this amendment would be to cap the maximum discount for a plea of guilty entered within four weeks of the defendant's first appearance in court at 25 per cent rather than the 40 per cent contained in the bill. This amendment wholly undermines the intention and operation of the bill. The reduction of the maximum discount available to an amount less than that provided currently by the common law is misconceived.

The Hon. D.G.E. HOOD: I move:

Page 5, line 28 [clause 7, inserted section 10B(2)(a)]—Delete '40%' and substitute '33⅓%'

Like the Hon. Mr Wade I see this as a test for the rest of my amendments. I think, to some extent, this debate is academic because the truth is that if judges wants to find a way to provide a discount they will find a way. That is, by giving a lesser head sentence in the first place regardless of which one of these amendments gets through. I think it is somewhat academic in a sense.

As I said during my second reading contribution, Family First is a very strong supporter of this bill. We think the initiative is the right one but 40 per cent is a very substantial discount. Because of that, I have moved an amendment which essentially changes the maximum reduction to 33⅓ or one-third of the possible maximum discount.

The reason I came up with that figure is not just because it is between the Liberal opposition amendments and the government's stated 40 per cent figure but, in fact, there is good reasoning to base that on. I have just pulled up one of a number of examples here which I could have used, but this is a judgement of the Court of Criminal Appeal in 2008 in R v Randall Smith case. It is a long quote that was given, of course, as you would expect, at the end of a Court of Criminal Appeal judgement. The relevant part for this particular moment is as follows:

The Director [meaning the Director of Public Prosecutions] did not suggest that the reduction of one-third on account of the early pleas, contrition, remorse and co-operation was inappropriate. However, the Director contended that this was at the upper end of the permissible range and that a further reduction on account of co-operation was inappropriate.

They then say, 'We agree.' The Court of Criminal Appeal agrees that 33⅓ is about the right amount—so hence the amendment. How this plays out is a matter for you obviously, Mr Chairman; whether the Hon. Mr Wade's is voted on first or whether ours is voted on first is obviously a matter for you. I think I have explained my amendment and I look forward to the vote.

The Hon. G.E. GAGO: The government opposes the Hon. Dennis Hood's amendment. For reasons I have already explained, this amendment will diminish the rationale for the operation of this bill. However, our view is that the negative effect of this amendment is far less than that caused by the amendment moved by the Hon. Stephen Wade. The amendments moved by the Hon. Dennis Hood, in contrast to those of the opposition, show a much greater understanding and appreciation of the purpose of the operation of the bill, and we are, indeed, grateful for that. At the end of the day, reasonable minds will differ on the precise amount of the maximum discounts under the bill. Obviously, the government has its position; we would certainly prefer the Hon. Dennis Hood's position ahead of that of the Hon. Stephen Wade.

The Hon. J.A. DARLEY: I will be opposing both amendments.

The committee divided on the Hon. Mr Wade's amendment:

AYES (8)
Brokenshire, R.L. Dawkins, J.S.L. Hood, D.G.E.
Lee, J.S. Lensink, J.M.A. Ridgway, D.W.
Stephens, T.J. Wade, S.G. (teller)
NOES (10)
Bressington, A. Darley, J.A. Finnigan, B.V.
Franks, T.A. Gago, G.E. (teller) Kandelaars, G.A.
Maher, K.J. Parnell, M. Wortley, R.P.
Zollo, C.
PAIRS (2)
Lucas, R.I. Hunter, I.K.

Majority of 2 for the noes.

Amendment thus negatived.

The Hon. S.G. WADE: I do not intend to move [Wade-1] 3 and [Wade-1] 4.

The Hon. A. Bressington: What about the Hood amendment?

The Hon. S.G. WADE: The Hood amendment is a consequential too, I understand. I propose to move [Wade-1] 5. I would stress to members that, even though they might be happy with the government's bill, they might still consider this issue. This issue relates to the role of regulation in the legislative regime rather than the policy of the bill itself. I move:

Page 7, lines 11 to 13 (inclusive) [clause 7, inserted section 10B(6)]—Delete subsection (6)

I indicate that I am of the view that this should be treated as a test clause for [Wade-1] 11 because I regard that as consequential.

The bill proposes that the timing of the stages for pleading guilty will be variable by regulation so the discount periods can fluctuate in accordance with the working and listening practices and pressures in the higher courts. The opposition's view is that it is wholly inappropriate for the regulations to vary the time frames on which the whole regime sits. These matters should be the subject of parliamentary consideration.

Given the parliament has spent so much time debating what discounts should be appropriate at certain periods, I am incredulous the government wants to change those periods at whim. Further regulations take effect immediately and may, in effect, be operational for months before parliament has the opportunity to review them and consider disallowing them. Such a change would produce wholesale uncertainty and disruption to court practices and allow the discount periods to be amended virtually overnight. Likewise, they could be revoked at any time.

This government has had a consistent agenda of inserting more and more power into regulations and taking it away from this place and this parliament. We believe there is a place for regulation in our legislative structures, but this government does not maintain an appropriate balanced approach to the relative responsibilities of parliament and the executive. I commend the amendment to the council.

The Hon. G.E. GAGO: The government supports this amendment. Although it is preferable to have the flexibility to change the stages of this bill by regulation without it coming back to parliament, this amendment does not undermine the intention or the operation of the bill.

The Hon. D.G.E. HOOD: Just briefly, Family First supports it as well.

Amendment carried.

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

Page 9, lines 21 to 23 (inclusive) [clause 7, inserted section 10C(6)—Delete subsection (6)

I have suggested that this amendment is consequential on the amendment that we have just dealt with.

Amendment carried; clause as amended passed.

Remaining clauses (8 to 9), schedule and title passed.

Bill reported with amendments.

Third 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) (16:36): I move:

That this bill be now read a third time.

The council divided on the third reading:

AYES (13)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Finnigan, B.V. Franks, T.A. Gago, G.E. (teller)
Hood, D.G.E. Kandelaars, G.A. Maher, K.J.
Parnell, M. Vincent, K.L. Wortley, R.P.
Zollo, C.
NOES (6)
Dawkins, J.S.L. Lee, J.S. Lensink, J.M.A.
Ridgway, D.W. Stephens, T.J. Wade, S.G. (teller)
PAIRS (2)
Hunter, I.K. Lucas, R.I.

Majority of 7 for the ayes.

Third reading thus carried.

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