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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-03-06 Daily Xml
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CRIMINAL LAW (SENTENCING) (MANDATORY IMPRISONMENT OF CHILD SEX OFFENDERS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 4 April 2012.)

The Hon. G.A. KANDELAARS (20:08): I rise to put the government's position in relation to this bill, which intends to force the imposition of substantial prison terms on anyone convicted of a child sex offence and removes any discretion from judges when sentencing for these offences. This bill also takes a confused approach to sentencing, requiring a court to impose a minimum nonparole period before having considered what the appropriate total sentence should be.

These mandatory, long-term sentences of imprisonment would apply regardless of the age of the offender, the circumstances of the offence or the attitude of the victim. The government, despite its loathing for child sex offending, cannot support this bill. It holds the position that courts are the best place to determine the appropriate head sentence when a person is convicted of a crime, taking into account the maximum penalty set by the government in legislation. It is a highly valued principle in our legal system, as in the common law generally, that sentences should be imposed on a case-by-case basis to reflect the seriousness of the crime, taking into account the maximum sentence that legislators have indicated is appropriate in the absolute worst cases.

We appoint highly-qualified judicial officers to consider the entire circumstances of the offending, the history of the offender and the effect on the victim so as to impose a sentence that fairly punishes the wrongdoing. We do this because it is our best chance of delivering justice in each individual case. That is not to say that our judiciary always gets it right. Sentences may be handed down that the victim or his or her family or perhaps the general public might find disappointing but, for all its faults, our system of discretionary sentencing is, in the government's view, the right one. There is also an appeal process and sentences may be appealable.

It is important to understand that this bill, and the way it requires mandatory minimum nonparole periods to be set with no reference to a head sentence, in practice would not work in the way one might imagine. The setting of a mandatory minimum nonparole period that is completely unrelated to the appropriate head sentence removes any incentive for an offender to plead guilty because there is no longer any benefit to the offender and, with a guaranteed high sentence, there is no reason not to take their chances at trial.

This makes it highly likely that many more defendants will opt to go to trial rather than plead guilty as they have nothing to lose. This imposes a substantial cost on the public, which has to pay for the trial, the prosecution costs and, on occasions, the legal costs of the defendant. As there will be more trials, court backlogs will increase. Most importantly, more victims and witnesses will be put through the trauma of reliving the offending at the trial.

It may also happen that a jury is reluctant to convict where they know that it will result in a mandatory head sentence of many years. The jury might think that the defendant is guilty but might also think that the mandatory gaol term is too harsh a punishment in a particular circumstance. This could lead jury members to vote to acquit a defendant who should in fact be convicted and who would have been under our present laws.

Finally, we should not overlook the effect of such provisions on victims. We know that child sex offending occurs in families. Sad as it is, the offender may well be the victim's parent, step-parent, sibling, extended family member or another person who gains access to the child through family relationships or friendship. We should not forget that child victims in such cases may have mixed feelings.

Not uncommonly, child victims do not want to feel that they are responsible for putting their parent or siblings in jail. At present, a prosecutor can tell the child that this is up to the judge and that their relative will not necessarily go to gaol but rather the court will work out what it thinks is a fair punishment. The judge, not the child, is responsible.

If a prosecutor, as under this bill, must tell the child that it is certain that the perpetrator will be gaoled for some years if convicted, many children may not be willing to give evidence. For some, this is because they do not want to be responsible for this consequence; others fear the reaction of other family members if they are seen to cause this person to be gaoled. The unintended effect of the bill would be to redouble that fear with the result that many prosecutions that are difficult today will become impossible tomorrow.

This bill not only confuses how sentencing is done in practice but it also confuses the role of the DPP. The DPP is the prosecutor and if a person is convicted it is the DPP who makes submissions and puts forward arguments to the court as to what is the appropriate punishment. The DPP should not be deciding what the appropriate sentence is—that is the role of the court. It is for the judge to weigh up all factors, including those presented by the defence and the DPP, and for the judge to decide an appropriate sentence. If the DPP disagrees, then the remedy is to consider an appeal. On that basis, the government opposes this bill.

The Hon. S.G. WADE (20:14): I rise to speak to this bill on behalf of the Liberal opposition. The bill proposes to introduce a mandatory minimum sentence of 10 years for those facing a maximum penalty of life imprisonment and not less than a third of the maximum sentence for any other prescribed offence.

The proposal of mandatory minimum sentences is really a reaction to the view that sentences do not reflect community expectations. When the community hears about short sentences for horrific crimes, they are quite understandably upset. The Hon. Ann Bressington made reference to a number of instances where the community's perceptions of short sentences have led to wide community outrage.

The offenders we are talking about here plumb the depths of depravity. They are criminals who have chosen to prey on some of society's most vulnerable and innocent people. The sentences handed down to them are not just mere punishments for a wrong caused, they are an expression of the community's standards and the community's abhorrence. They are also an opportunity to address some of the causes of the bad behaviour.

This bill aims to deal with the first two elements: punishment and community expectations. In relation to the first element of punishment, it says that, when this particular crime is committed, regardless of the circumstances, imprisonment will follow. The second element in sentencing is what the community expects.

In 2011, the government announced the creation of a Sentencing Advisory Council. The idea, of course, was taken from Liberal election policy. We had been calling for such a council since 2002. We proposed that the council be composed of people with a community background and perspective rather than a perspective dominated by the legal sector. The government's sentencing council, in contrast, has six public sector positions and as few as four from the community.

When a sentencing council works well, it brings together victims, police, correctional services officers, experts and members of the community to conduct research, collect evidence and gauge informed public opinion to make recommendations to the courts and the government. It acts as a bridge between the courts and the community it serves.

When we released our policy in 2006, we called for a review of all criminal penalties by the Sentencing Advisory Council. Unfortunately, like so many other Liberal ideas Labor has attempted to commandeer, Labor's implementation of the concept has fallen well short of what we promised as Liberals and what we believe should have been done. The Sentencing Advisory Council was meant to be a dialogue with the community about how their expectations could be met in sentencing decisions, but the implementation of the policy has itself failed to meet community expectations.

A proper, fully-fledged sentencing council, as is operating in Victoria and in the United Kingdom, maintains a dialogue with the community so that the courts have a clear picture of what the community expects and, just as importantly, so the community can understand the reasons for the decisions of our courts. For this to happen, there needs to be more than just the establishment of a board. Proper resourcing is needed so there can be an effective conversation and a two-way flow of ideas. The government has failed to do this. The community continues to be frustrated.

Mandating penalties and removing discretions from the courts, as this bill proposes, is in some ways a vote of no confidence in the courts. The Hon. Ann Bressington is making a strong statement that the courts should not be trusted with their exercise of discretion for the offences named in the bill but, rather, there should be a mandated minimum. With respect, the honourable member is saying that we should substitute the court's decision in sentencing with our own as a parliament. On this point, the Liberal opposition does not agree with the member's approach.

Sentencing is a complicated process. It is as complex as the events of life itself. As a parliament, we do not have all the information before us today to be able to decide the appropriate sentences for offences that have not even happened yet. We cannot determine what the appropriate punishment is without seeing the facts of the case, just as we cannot determine in this place what the community expects for all sentences handed down for these offences in the future.

In relation to the third element of sentencing that I referred to earlier—the opportunity to address offending behaviour—the Liberal opposition also believes the government should be criticised for its failure on this count. My office has received a regular stream of calls from concerned victims and families of offenders who report that offenders are spending years waiting to access sexual rehabilitation programs rather than receiving the treatment they need to address their offending behaviour.

The government's failures mean that offenders are being released at the end of their sentence without having undergone treatment which reduces the risk of them offending again. This kind of repeat offending is exactly what the Hon. Ann Bressington referred to in her speech. This should be a grave concern to every South Australian who is concerned about the safety of our children and the enormous burden placed by the failure to address reoffending.

Meeting community expectations in sentencing is an ongoing concern of the opposition, and we hope that we will have the opportunity to see the sentencing advisory process fully enhanced in the years ahead.

The Hon. K.L. VINCENT (20:20): Once again, I would like to say that, like all of us here, I believe the issue of child sex offence a very serious one, and I find it very difficult and troublesome dealing with the injustices and inadequacies within our justice system that see alleged sex offenders never brought to our courts. However, I have never believed that mandatory imprisonment is the answer for any type of offence, and this remains the case, I am afraid, for child sex offences.

Once again, I appreciate the intention of the Hon. Ms Bressington's bill, but I do not believe it is an effective way of reducing or preventing child sex offending. Many of the reasons for this have already been stated by both government and opposition members. Of course, it is not often that I find myself agreeing with both parties, let alone the government, so I wish to celebrate this by not rehashing everything that has already been said. However, we certainly do have a court system and we have judges for the very reason that they are trained and, I believe, trusted to consider the individual circumstance of each case before them. By and large, I think that is a job they do well.

Of course I want to see people who abuse children, particularly the most vulnerable in our society, such as those with disabilities or who are under the guardianship of the minister, for example, brought to justice and face charges in our court. I will continue to create a court system that enables them to do so thereby rendering them less likely to be abused in the first place. I will continue to work against child sex offences, but I just do not believe that enshrining mandatory imprisonment is the correct way to do this. I believe it goes against many principles of our justice system and natural justice and, therefore, I am afraid I cannot support this bill.

The Hon. J.A. DARLEY (20:22): I have sympathy for the bill that the Hon. Ann Bressington has put forward, but for the reasons already outlined by the Hon. Stephen Wade and the Hon. Kelly Vincent I cannot support the bill.

The Hon. A. BRESSINGTON (20:23): There are just a few points that I would like to address with the comments from everybody who has contributed to this. The Hon. Gerry Kandelaars said that a person under this legislation, regardless of their age, would be sentenced to this particular formula. That just is not the case. This bill certainly would go some way to protecting the rights of our most innocent and vulnerable—our children who are under the age of 14—but it would also additionally provide for mandatory imprisonment of child sex offenders who are over the age of 18.

So, for these young love, puppy love incidents that happen, there is no way that a young man of 15 could be sentenced under this legislation for having sex with his 15-year-old or 14-year-old girlfriend. There are quite strict provisions to this bill. What it does is outline a number of offences that occur sometimes in the lead-up to the actual sexual abuse of a child—the collecting and distributing of pornography, photos being taken, all that sort of behaviour that goes on, as part of the grooming process for a child to become conditioned sometimes to allow this to happen. I am not saying they give informed consent but we all know that grooming is a process.

I recounted in my second reading speech where people have received minimum sentences for heinous crimes and I do not believe that under any circumstances the community believes that a suspended sentence for a child sex offender is at all acceptable under any circumstances whatsoever. I would like to make the point that the information the Hon. Gerry Kandelaars put on the record about children not wanting to be responsible for family members going to gaol for their abuse is part of the whole grooming process to convince the child that they are to blame. When children grow up and pursue justice for themselves and they see people getting off with a suspended sentence or a slap on the wrist, it just reinforces the fact that they actually are to blame.

I have worked with many drug addicts who have been sexually abused as children and as they get older this becomes an overwhelming burden for them to wear, but when they get the right kind of counselling, when they get the right sort of attention that they should be getting therapeutically, they can reconcile the fact that they are not to blame and they want justice. To even consider that a five year old child would not want to see a sex offender in their family go to gaol because they do not want to be responsible for that is just utter crap. I do not know which psychologist or where the Hon. Gerry Kandelaars got that pop psychology from, because I can tell you that I have worked extensively with Bravehearts in Queensland and they have a program where they actually work with children who have been abused to put the burden of guilt and blame where it belongs—on the perpetrator. There are people out there who actually believe that these people cannot be rehabilitated.

On the drafting of this bill, I might say that this was a two-year project for me to get the formula right. I was approached by a person who works within the courts and that person was asked to approach me about putting this bill together from the courts themselves. The magistrates are more than happy for mandatory minimum reporting to go ahead for child sex offenders because, in the words that were passed on to me, the legislation does nothing more than limit what they can do. So, this was not just on a whim.

When we talk about mistrusting the courts, let's look at von Einem, for example, or let's look at those other serious offenders who come up for parole and the executive of government uses its power to override the recommendations of the Parole Board and refuse parole. Is that not showing distrust in the courts, distrust in the judgement of the courts, distrust in the Parole Board? We really do have mandatory minimum sentencing by executive government by default anyway. Some of these arguments that were put up are nothing more than to read well on the public record, I believe, to keep the legal profession happy. Of course, the legal profession would not like this at all. Of course, the legal profession would be opposed to this because it cuts their lunch, does it not?

If it is mandated and the crimes are there, there is no bargaining down. If you have committed six crimes of child abuse or in the categories that were outlined, which I might say were recommended by the person who approached me to include these, there is no barter. There is a one-third minimum sentence on each one of those offences and there is nowhere to go with it. Of course, the legal profession would not like that. But I am telling you now that the courts do not disapprove of this approach, and I have that on very good authority.

I am disappointed that, for this particular kind of offence, we cannot take these creeps out of circulation for as long as possible to keep our community safe. It is just another measure, I believe, to ensure and guarantee the safety of our children and communities and to restore just a little balance in favour of the most vulnerable in our community.

The council divided on the second reading:

AYES (3)
Bressington, A. (teller) Darley, J.A. Hood, D.G.E.
NOES (14)
Dawkins, J.S.L. Franks, T.A. Hunter, I.K.
Kandelaars, G.A. (teller) Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Maher, K.J. Parnell, M.
Stephens, T.J. Vincent, K.L. Wade, S.G.
Wortley, R.P. Zollo, C.

Majority of 11 for the noes.

Second reading thus negatived.

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