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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-09-24 Daily Xml
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CRIMINAL LAW (SENTENCING) (SUSPENDED SENTENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 24 July 2013.)

The Hon. D.G.E. HOOD (17:28): The government has introduced the Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill to strengthen the test used by a court to decide whether to suspend a sentence of imprisonment for certain serious offending. Family First supports the government's proposal in this bill and we will support it. This will be no surprise to other members because in both 2008 and 2012 I introduced bills for a very similar purpose, but neither of those bills passed.

It is pleasing to see, however, that upon consideration the government has taken the view that there is a need to place some restriction on the suspending of sentences in extreme cases. I have mentioned a number of these in the media over several years now. The bill targets adult offenders from either of two groups: the first group consists of those being sentenced for a serious and organised crime offence; the second group consists of those who have previously had the benefit of a suspended sentence for a designated offence, and within three years are again before the court for another designated offence. A designated offence is one taken from a list that includes such things as shooting at a police officer, armed and unarmed robbery, kidnapping and rape, to give just a few of the examples. In the case of either of these two groups, a sentence of imprisonment can only be suspended if exceptional circumstances exist.

I would like to say a few words about why this bill is necessary. As stated in the second reading explanation by the government when the bill was introduced, the problem arises from the wording of section 38 of the Criminal Law (Sentencing) Act. The effect of this section, as confirmed by various court decisions, is that a sentence should be suspended if there is no good reason not to do so, and the test of good reason relates primarily to the circumstances of the offender. There is no need to find something special or exceptional, which may in fact be more appropriate.

The suspension of a sentence can be appropriate in any circumstances where there is a good reason to do so, according to the act. It is not surprising that defence counsel place great emphasis on detailing the personal circumstances of the offender and in almost every case indicate that he or she is genuinely remorseful and would greatly benefit from being given another chance through the sentence being suspended.

When a judge is faced with such a submission and must consider whether there is good reason to suspend a sentence, the result is often that good reason to suspend that sentence is found. I have taken surveys of cases in District and Supreme courts over three months from June to August this year and found that, in 54 per cent of the sentences of imprisonment, the sentence is suspended—over half. That is a very high number considering that the District and Supreme courts deal with the more serious criminal cases, the less serious ones being heard in the Magistrates Court. Of course, the question of suspension is a question for each case and each individual offender.

Whilst the need for general deterrence is often acknowledged, over several years, the last year or so in particular, I have come across examples of offenders who have been given suspended sentences for such offences as armed robbery, home invasion at night whilst carrying a knife, operating an methylamphetamine laboratory for commercial purposes in flagrant breach of a good behaviour bond, and trafficking a large commercial quantity of illicit substances.

These are just a few cases that I have found where sentences have been suspended—there are many more—where it appears to me that it was clearly inappropriate to do so. One judge in his sentencing remarks commented that one of the reasons for the decision to suspend the sentence was that the offender had had a fight with his girlfriend that day.

This bill operates in very extreme situations of the most serious offending. It will not change the day-to-day sentences handed down by the courts. I find it hard to understand how anyone could argue that an offender who has had the benefit of a suspended sentence already for a designated offence and then commits another designated offence within three years should possibly hope to receive another suspended sentence, particularly given that this bill focuses on the serious end of crime.

This bill does, however, make a clear statement of policy, and I accept the statement in the second reading explanation given by the government that 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—truly exceptional—you will not receive the benefit of a suspended sentence.

It is important to understand that the bill does not prevent suspended sentences for these offenders. It does not prevent it nor does it remove judicial discretion from the sentencing process, and I am certainly not advocating that it should. It merely changes the test for the decision to suspend a sentence of imprisonment from the need to demonstrate what is currently 'good reason' to the new term, which will be 'exceptional circumstances'. This tightening up is appropriate and receives Family First's support.

Indeed, I have formed the view that the bill does not go far enough in two respects. Firstly, the relevant period between the first sentence and the second crime is three years under this bill, that is, no one can receive two suspended sentences in three years for the designated crimes. My view is that three years is probably too short. If any person is sentenced for one designated offence—remember, it could be armed robbery or something very serious—and within five years commits another designated offence, there should not be a suspension of the sentence unless exceptional circumstances are shown to exist. To me, this is appropriate. I have therefore proposed an amendment that has been filed to change the relevant period from three years to five.

A second group of amendments will be to slightly enlarge the list of designated offences. The list should include dangerous driving to escape police pursuit, in my view, and should also include home invasion (which it currently does not), which is also known as serious criminal trespass in a place of residence. In my opinion, these offences are serious enough to justify a custodial sentence for a first offence in most cases, so it seems clear that if a second offence is committed, the test for suspension should certainly be the higher test of exceptional circumstances, and that would be the cause of my amendment.

As I said, Family First supports this bill. We believe it is necessary to ensure that an appropriate test is used in reaching a decision as to whether a sentence of imprisonment should be suspended in a serious case as defined. As I said, I have two amendments, one moving the period of time to five years and the other to make it absolutely clear what qualifies and what does not in terms of expanding the list of offences to include home invasion, for example.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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