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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-07-24 Daily Xml
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CRIMINAL LAW (SENTENCING) (SUSPENDED SENTENCES) 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 the Status of Women, Minister for State/Local Government Relations) (22:08): 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.

Under amendments proposed in this Bill repeat violent offenders, and offenders who are involved in serious and organised crime, will not receive the benefit of a suspended sentence unless their case is truly exceptional.

The Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill 2013 will amend the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) so as to limit the power of the court to suspend a term of imprisonment to when there are 'exceptional circumstances' for two targeted groups of offenders.

The two targeted groups are repeat violent offenders and offenders who are involved in serious and organised crime.

Under the proposed amendments, if an adult offender is being sentenced for a serious offence of violence, and that adult offender committed the offence within three years of receiving a suspended sentence for an earlier offence of serious violence (including an offence committed as a youth), then their sentence of imprisonment cannot be suspended unless the court is satisfied that there are 'exceptional circumstances' warranting suspension. Suspended sentences are supposed to be a last chance—repeat offenders who performs acts of violence do not deserve multiple chances at avoiding gaol time.

The reform is to apply to offenders who are being sentenced for one of the following offences against the Criminal Law Consolidation Act 1935 (the CLC Act):

manslaughter including conspiring or soliciting to commit murder;

causing death by an intentional act of violence;

aiding, abetting or counselling suicide;

causing death or harm by use of vehicle or vessel;

unlawful threats and unlawful stalking;

all serious violent assaults (excluding minor assaults);

shooting at police officers;

kidnapping and abduction;

sexual offences including rape, unlawful sexual intercourse, gross indecency, persistent sexual abuse, indecent assault;

armed and unarmed robbery; and

assault with intent to commit one of the above offences.

The amendments also create a new category of offence called a 'serious and organised crime offence'. If an offender is sentenced for a serious and organised crime offence a sentence of imprisonment cannot be suspended unless the court is satisfied that there are 'exceptional circumstances' warranting suspension.

The serious and organised crime offences include the following offences:

the offences in Part 3B of the CLC Act, titled 'Offences relating to criminal organisations';

the offences concerning witnesses and jurors (sections 244 and 245 of CLC Act);

blackmail and abuse of public office (sections 172 and 251 of the CLC Act) if the offence is aggravated by the fact that:

the offender committed the offence for the benefit of a criminal organisation, or 2 or more members of a criminal organisation, or at the direction of, or in association with, a criminal organisation; or

in the course of, or in connection with, the offence the offender identified himself or herself in some way as belonging to, or otherwise being associated with, a criminal organisation (whether or not the offender did in fact belong to, or was in fact associated with, the organisation),

certain offences against the Controlled Substances Act 1984 (the CS Act) if those offences are aggravated by the circumstances set out above;

the offences set out at sections 32(1) and 33(1) of the CS Act, being the trafficking and manufacturing of a large commercial quantity of a controlled drug, even if the offences are not aggravated by the circumstances set out above.

Early criticism of this reform claims that this is an attempt to remove discretion from the courts. Not so. The sentencing judge retains his or her discretion to suspend a sentence, but for two targeted groups of offenders the sentencing judge is required to apply a different test. This does not amount to a removal of discretion.

Currently, section 38(1) of the Sentencing Act states that, where a court has imposed a sentence of imprisonment, the court may, if it thinks that 'good reason' exists for doing so, suspend the sentence on condition that the defendant enter into a bond:

to be of good behaviour; and

to comply with the other conditions (if any) of the bond.

The application of this section in practice is set out in the judgment of R v Ford [2008] SASC 46, which was an appeal against the decision of a sentencing judge not to suspend a sentence. Gray J (with whom Doyle CJ agreed) set out the applicable principles.

Gray J stated that the sentencing judge will firstly decide whether a term of imprisonment is the appropriate penalty. Once that decision is made, the sentencing judge then determines what length of sentence is appropriate (the head sentence) and the appropriate non-parole period to impose. It is at this point that the sentencing judge considers whether 'good reasons' exist to suspend that sentence.

In determining whether 'good reasons' exist Gray J stated:

Whilst 'good reason' will usually be derived from circumstances personal to the offender, there is no limitation placed on what may amount to a good reason. There must be something about the personal circumstances of the applicant or the offence that would render it inappropriate to imprison the applicant in the circumstances where imprisonment is the appropriate penalty. It is not a matter of finding something special or exceptional, but rather a matter of weighing all relevant factors.

Under the current provisions, a sentence of imprisonment must be fully suspended unless the period of imprisonment is between three months and twelve months, in which case the court may elect to only partially suspended the sentence. This provision remains.

The courts in the past (including in the case of R v Ford referred to above) have drawn a clear distinction between the concept of 'good reasons' and 'exceptional circumstances'. The difference between these two tests was considered In the case of R v Fowler [2006] SASC 18 where Gray and Layton JJ discussed the terminology 'exceptional circumstances'. Gray and Layton JJ stated:

The correct test to be applied by a sentencing judge when considering whether or not to suspend a sentence of imprisonment has been discussed in a number of recent decisions. There is substantial and important difference between the 'exceptional circumstances' test as discussed in Mangelsdorf and the 'good reason' test to draw from the wording of the statute. The 'good reason' test established by the legislature requires the sentencing judge to consider all of the circumstances of the instant case and make an assessment as to whether those circumstances give rise to good reason to suspend a sentence.

On the other hand, the 'exceptional circumstances' test implies that a sentencing judge ought to compare the circumstances of the instant case with other cases and determine whether there are aspects of the instant case that set it apart from the other cases and thereby justify an exercise of the discretion to suspend. This may lead the court to be asked to first consider what the common or typical features of drug trafficking cases are and then compare such features with the case at bar to decide whether such circumstances may be characterised as 'exceptional' before considering then whether to suspend.

Although this case was specifically referring to a drug trafficking case, the principal applies to the sentencing for offenders in any circumstances. This case demonstrates that, if the test for suspension is changed from 'good reason' to 'exceptional circumstances' as provided for in the Bill, it is a higher threshold for the offender to meet.

This Bill sends a message to repeat violent offenders and to offenders involved in serious and organised crime that unless your case is truly exceptional, you will not receive the benefit of a suspended sentence.

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 38—Suspension of imprisonment on entering into bond

It is proposed to amend section 38 to further limit when a sentence of imprisonment imposed on a defendant may be suspended by a court. The Act currently provides (in section 37) that the powers vested in a court by Part 5 are not exercisable in relation to murder, treason or any other offence in respect of which a special Act expressly prohibits the reduction, mitigation or substitution of penalties or sentences.

Currently, section 38 does not allow a court to suspend a sentence of imprisonment if the sentence is to be served cumulatively on another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant.

Current section 38(2a) provides that where the total period of imprisonment to which the defendant is liable is more than 3 months but less than 1 year, the court may, by order—

direct that the defendant serve a specified period (being not less than 1 month) of the imprisonment in prison; and

suspend the remainder on condition that the defendant enter into a bond (to be of good behaviour and to comply with any specified conditions) that will have effect on the defendant's release from prison.

The amendments propose that, in addition to the current limitation on a court's power to suspend a sentence, a court may not suspend a sentence of imprisonment imposed on a defendant—

for a serious and organised crime offence (as defined); or

for a designated offence of violence (as defined) where the designated offence in respect of which the defendant is currently being sentenced has been committed within a period of 3 years of the defendant having received a suspended sentence in respect of a previous designated offence,

except where the court is satisfied that exceptional circumstances exist for doing so.

Proposed subsection (2b)(a) also provides that a court may, if satisfied that exceptional circumstances exist for doing so, make an order under section 38(2a) in respect of a defendant being sentenced for a serious and organised crime offence, or for a designated offence in the circumstances described in subsection (2b)(b), if the period of imprisonment to which the defendant is liable under 1 or more sentences is more than 3 months but less than 1 year.

Schedule 1—Transitional provision

1—Transitional provision

This clause sets out a transitional provision for the purposes of the measure.

Debate adjourned on motion of the Hon. S.G. Wade.

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