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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-10-17 Daily Xml
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CRIMINAL LAW (SENTENCING) (SUSPENDED SENTENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

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) (17:08): I understand that there will be no further second reading contributions. I will put on the record that, although the Hon. Kelly Vincent had indicated that she was considering making a contribution, she has had to go home due to ill health. However, I have been advised by her office that she is happy for the second reading and committee stages to be progressed for this bill.

On that advice I will sum up and we will progress to the committee stage of the bill, if that is the will of this chamber. I thank those members who have contributed to the debate, particularly those who support this bill. The bill targets repeat violent offenders and those offenders who are involved in serious and organised crime, the most serious drug offences and offenders who target jurors and witnesses. This bill is targeted at the right offenders. It does not remove the court's discretion and it will not result in our gaols overflowing. The government wants it on the record that this bill does not implement any policy of mandatory minimum sentences, contrary to the rather unhelpful submission from the Law Society.

When sentencing any offender, the first step the sentencing court takes is to determine whether a sentence of imprisonment is appropriate, and if so, the court also determines the length of the sentence. This process is undisturbed. Currently, once the court makes a decision to imprison an offender, the court then considers whether any good reason to suspend that sentence. It is this test that we are changing. For the offenders we are targeting, they will now have to demonstrate that there are exceptional circumstances to warrant their sentence being suspended.

This reform will result in some offenders serving time who otherwise might have been out in our community on a suspended sentence, but these are the offenders we want locked up: people who commit serious drug offences, people who commit offences to support criminal gangs, and people who continue to commit violent offences despite having the benefit of a suspended sentence in the past.

With the passage of this bill, this government is sending a message to repeat violent offenders and to offenders involved in serious and organised crime: we will not tolerate this type of offending, and we have made it harder for you to obtain a suspended sentence, so be prepared to spend more time in gaol.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 1 [Broke–2]—

Page 2, line 18 [clause 4(2), inserted subsection (2b)]—Delete 'either' and substitute 'any'

I believe that our police need our support when it comes to protecting them against what has been an increase in police assaults. I have noted with interest where the Barnett government in Western Australia has addressed legislation issues to assist in the issues they had (similar to South Australia, I understand) where there was an increase in serious police assaults, that in the period since that has been in operation, they have seen a significant reduction in police assaults, which is a great thing for the police, a great thing for the families of the police, and also I believe assists in starting to overcome a cultural problem where, if you are not happy with someone, you seriously assault them. That is something that we need to jump on from a great height when it comes to preventing what is quite a high number of assaults against the person in South Australia. Whilst I acknowledge that there has been a reduction in a lot of crime, the reality is that, when it comes to assaults against the person, I have not seen that being the situation.

I believe that we need to show that there is little tolerance from the parliament when it comes to serious harm or worse, and this amendment takes the same approach as exists in this bill for serious and organised crime offences—no chance for a suspended sentence if you cause serious harm to a police officer in the course of his or her duties. Serious harm, I emphasise—I am not talking about a scratch or a bruise and that type of thing. I am talking about serious harm where we see people being glassed, stabbed and shot at and the like right across Australia, in fact, but of course we are only responsible for South Australia.

I also just want to advise colleagues that the Brokenshire-2 amendment, I stress, is no different in substance to Brokenshire-1. It removes the word 'aggravated' and replaces it with 'specified' in all relevant places except clause 5 where it is needed but the basic effect is the same. I conclude with the reasons why Family First put this amendment forward. If it is good enough to take suspended sentences away from bikies who commit serious and organised crime offences—and we congratulate the government on doing that in this bill—then it is certainly good enough to take them away from the thugs who assault our police, causing them serious harm, or who attempt to murder them.

The Hon. S.G. WADE: It is slightly unusual, but I would like to ask a question of the minister in relation to the honourable member's amendment. As I understand it, the—

The CHAIR: The Hon. Mr Wade, will it assist if the minister puts the government's position on the amendment first? That might expedite matters.

The Hon. S.G. WADE: It actually comes out of Mr Brokenshire's comments. Mr Brokenshire suggested that this would remove the capacity for suspended sentences to be awarded. In relation to the government's provisions in relation to non-police and in relation to Mr Brokenshire's amendments in relation to police, could the minister clarify whether the option of suspended sentences would be removed or just limited?

The Hon. G.E. GAGO: I am advised, just limited. The government supports the Hon. Rob Brokenshire's amendment. This first amendment is only made because of further amendments filed by the Hon. Robert Brokenshire, whereby further offences are added to a list of offences. All five of the Hon. Mr Brokenshire's amendments are supported by the government. I think there are some by the Hon. Dennis Hood as well. In fact, all the amendments that have been tabled by honourable members will be supported by the government, just in case that might assist them in the length of the debate.

The Hon. S.G. WADE: I rise to indicate that the opposition also supports the amendment by the Hon. Robert Brokenshire. The amendment would require the higher exceptional circumstances threshold to be met if a person is convicted of any of the offences included in the table and where the victim is a police officer. Our understanding is that the amendments do not remove the judicial discretion, but they do reflect the community's concern to protect police in their role which this house only on Tuesday of this week affirmed in very clear terms in its amendments to the Statutes Amendment (Police) Bill.

The bill allows the court to impose a sentence appropriate to the circumstances rather than a one-size-fits-all sentence predetermined by statute, but it appropriately reflects the community's determination to support our police officers as, day by day, they put themselves in harm's way and we believe the community expects that all citizens will show appropriate respect to the police. It is appropriate that a suspended sentence should be harder to get and should be subject to the exceptional circumstances criteria if police are the victims.

Amendment carried.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 2 [Broke–2]—

Page 2, line 20 [clause 4(2), inserted subsection (2b)(a)]—After 'crime offence' insert 'or specified offence against police'

Amendment carried.

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

Amendment No 1 [Hood–1]—

Page 3, line 2 [clause 4(2), inserted subsection (2b)(b)]—Delete '3 year period' and substitute:

5 year period

I will be relatively brief and I thank the minister for her indication of support, but this amendment does bear a little bit of explanation.

The Hon. S.G. Wade: You still need another two.

The Hon. D.G.E. HOOD: Indeed, yes. It is usually the other way, of course; it is ironic. This is a very simple amendment. It simply changes the time frame for which two suspended sentences could not be given from three years to five years. Of course, this is only for the designated offences, as listed. I will read out some of those so-called designated offences. I think members would by and large agree that anyone who got two suspended sentences in a five-year period for such offences would truly have to be in exceptional circumstances. The offences are: kidnapping, rape, persistent sexual exploitation of a child, shooting at police officers—they are just a few; there are others, but they are obviously at the very high end of the scale and are very serious indeed.

I see no reason—although the bill does allow reason in exceptional circumstances—that anyone should be given two suspended sentences for offences of that seriousness in the five-year period, hence my amendment.

The Hon. S.G. Wade: And all of them.

The Hon. D.G.E. HOOD: Indeed.

The Hon. G.E. GAGO: The government rises to support this amendment. The bill makes amendments to the Criminal Law (Sentencing) Act so that an adult offender being sentenced for a designated offence, who in the past three years has received the benefit of a suspended sentence for a serious offence of violence, will not receive the benefit of another suspended offence unless the court is satisfied exceptional circumstances warrant the suspension, as opposed to the usual test of whether there is good reason to suspend. The bill will make it harder for these repeat offenders to receive the benefit of a second suspended sentence.

The Hon. Mr Hood's first amendment extends the three-year period to a five-year period. This will result in capturing more repeat offenders under this reform. The government supports this amendment. These amendments support the government's policy that there are some repeat offenders who should only receive the benefit of a suspended sentence if their circumstances are truly exceptional.

The Hon. S.G. WADE: The opposition also supports this amendment. I seek confirmation as to whether all the categories of offenders who need to meet the exceptional circumstances test will be subject to the five-year period.

The Hon. G.E. GAGO: My advice is yes.

The Hon. S.G. WADE: That being the case, could I ask the government for an update on the budgeted cost? As I said, the budget bid at the end of last year estimated that it would cost $9.8 million for 30 additional prison beds at the Port Augusta Prison, at an operating cost of $2.7 million by 2016-17, to implement the old policy. So, are we looking at a 40 per cent increase in the cost?

The Hon. G.E. GAGO: I note that the figures that the honourable member refers to are very old figures and are obviously out of date, but in relation to current costings, those figures are not available. I will obviously take what I can on notice and see what information is available and bring that back at a later date, but I have been advised that costings of that nature are not available at this point in time.

The Hon. S.G. WADE: If the government is not able to provide a cost, can they provide an estimate of the additional prison beds that will be required?

The Hon. G.E. GAGO: I am advised no.

The Hon. S.G. WADE: What I find baffling is that almost 12 months after an original assessment was made the information has gone backwards. The Treasury has allowed the government to bring this bill forward without any idea of how much it will cost.

The Hon. G.E. GAGO: I have been advised that we had costings on the bill, but not those amendments at this point in time.

The Hon. S.G. WADE: Could I have an indication of the costs on the bill?

The Hon. G.E. GAGO: I am advised that the assessment indicated that the impact on the daily number of prisoners in relation to prison occupation fitted within the current capacity of our prison system, therefore it was assessed to have no additional costs on the current provisions within our corrections system.

The Hon. S.G. WADE: I am delighted to be advised by the government that there is spare capacity in our prison system because that would be a surprise to most people, including the Public Service Association who support our correctional services officers. The minister is saying that the three-year window would not result in additional cost to the system. Is the minister able to advise whether there is an expected additional cost for the extension of two years? Let me stress again, we have already indicated we are supporting this, but we expect the government to have the resources to implement laws, not just pass them.

The Hon. G.E. GAGO: I have already indicated that we currently do not have costings for those aspects of the amendment. I have already put that on the record.

The Hon. A. BRESSINGTON: Perhaps I could ask the minister if she is aware of what the Victorian experience has been with the same legislation as we are passing here now? That it has made absolutely no difference to the number of people who have received suspended sentences through the court mainly because of the exceptional circumstances clause, or term, in the bill and that it has allowed the courts to give a wider interpretation of 'exceptional circumstances'. In actual fact, a report that I received from the Victorian courts has indicated that it has been basically a moot bill for any sort of outcome at all for keeping offenders from getting suspended sentences and being released.

The Hon. G.E. GAGO: The matter before us today is a bill that clearly seeks to repeat the ability for people to receive suspended sentences for a series of very serious offences. That is the principle at stake we are looking at, and the member either supports the direction we are proposing to take or does not. In terms of Victorian statistics, I have been advised that we are not aware of any statistics coming out of Victoria on the issue of suspended sentences, and I would be happy for the honourable member to make whatever data or references she is referring to available to us, but we are not aware of any.

In terms of the potential for an unintended effect of widening the interpretation of exceptional circumstances, I am advised that South Australia has a very longstanding and very strong interpretation of exceptional circumstances, of case law that defines what exceptional circumstances are, and that we are most doubtful indeed that this bill will have any adverse effect, or in any respect any effect, on the interpretation of exceptional circumstances.

The Hon. A. BRESSINGTON: The document I am referring to is 'Suspended sentences in Victoria: monitoring report', and I have a statement here from the Victorian Sentencing Advisory Council. The analysis suggests:

...that, in the absence of credible alternatives to suspended sentences, legislative attempts to restrict the use of suspended sentences have not been successful.

The Victorian report suggests:

...that the sentencing judges are adopting a broader approach to the definition of 'exceptional circumstances' for cases imposing a suspended sentence than the definition of 'exceptional circumstances' for cases regarding breach of a suspended sentence which refers to circumstances that are 'clearly unusual, quite [unusual] [or] out of the ordinary.

The council went on to state:

While the Council continues to be concerned with what we believe are fundamental flaws with the structure of suspended sentences on community confidence, we equally believe that any changes to other intermediate orders should be fully tested before any additional moves are made to restrict further sentencers' ability to make this order. To do otherwise would risk increasing the prison population substantially, resulting in a sharp rise in correctional system costs.

But that is about adding additional changes to the law where exceptional circumstances are put into play for suspended sentencing guidelines. So, in actual fact, the advisory council from Victoria is saying that basically this has made no difference at all because of the court's ability to put a broader interpretation on the circumstances now using the term 'exceptional circumstances'.

The Hon. G.E. GAGO: I notice that the honourable member does not refer to any specific statistics in relation to actual numbers or changes in numbers, and the advice I have received is that the information contained in the reference the honourable member refers to contains no statistics. There were no measurements or monitoring of actual numbers, or changes in numbers, but they were general observations.

All I can do is reassure the honourable member that that may well be in terms of the impact on exceptional circumstances in relation to Victorian case law but, again, the honourable member does not refer to any stats, and we understand that there are no statistics amongst those observations, that they are general observations only. I can only reassure the honourable member that the case law here in South Australia around exceptional circumstances is very well developed and very strong and is most unlikely to be impacted on in any way.

The Hon. A. BRESSINGTON: Just to clarify, as I said, that was a monitoring report of suspended sentences. I have just one very short clause here that I can read onto the record which basically supports the statement that this has been a piece of useless legislation in Victoria. It states:

In 50 of the 83 cases analysed, the sentencing judge expressly referred to section 27(2B) or to 'exceptional circumstances'. Explicit reference to the section and to ‘exceptional circumstances’ has increased over time, from 40% of relevant remarks in the period from January 2008 to June 2008, to 72% in the period from January 2009 to June 2009.

Let me just be clear: I support the legislation but if there are sticking points that have occurred in Victoria because of the exceptional circumstances clause, my original question to the minister stands: what steps have we taken to make sure that this is not just another useless piece of legislation and that we do not repeat in our legislation here whatever it is that renders it useless?

The CHAIR: The Hon. Mr Wade.

The Hon. S.G. WADE: The minister is clearly choosing not to answer. I would just like to go on and make—

The CHAIR: Order!

The Hon. G.E. GAGO: My answer is already on the record. I have talked about case law, our strong case law. I have already answered the question twice.

The Hon. A. Bressington: No you haven't.

The Hon. G.E. GAGO: Well, I have. I said that our case law is strong—

The CHAIR: Order!

The Hon. G.E. GAGO: —and that I do not believe it will be impacting—

The Hon. S.G. Wade interjecting:

The CHAIR: Order!

The Hon. G.E. GAGO: I have already put that on the record.

The CHAIR: Order!

The Hon. G.E. GAGO: Do not be misleading.

The CHAIR: We are dealing with the Hon. Mr Hood's amendment and now, the Hon. Mr Wade, you have a further question?

The Hon. S.G. WADE: I have comments to make on the clause.

The CHAIR: Comments on the clause.

The Hon. S.G. WADE: In relation to the minister's assertion that there are no statistics in the Sentencing Advisory Council report—

The Hon. G.E. GAGO: I said that I was not aware of any.

The CHAIR: Order!

The Hon. G.E. GAGO: Do not be misleading. I said I was not aware of any. I did not say there were none.

The Hon. A. Bressington: You said there were none in the report that you referred to.

The CHAIR: Order! The Hon. Mr Wade.

The Hon. S.G. WADE: Thank you, Mr President; I appreciate having the call. I refer to page 9 of the report. Clearly there is a table that shows an increase in suspended sentences in the Victorian Magistrates Court in relation to wholly suspended sentences between 2000 and 2008-09. I reiterate that the opposition is supporting this legislation, but the Hon. Ann Bressington raises a very good point. The parliament often passes legislation that does not have the effect that parliament intends. The Hon. Dennis Hood has raised concerns in this parliament in recent months about the diminution of court accountability stats, for want of a better word. I think the Hon. Ann Bressington raises a good point. I ask the minister: what steps will the government take to monitor the implementation of these laws so that parliament can be confident in the shared objective? The government, the opposition and as far as I know all crossbenchers support this. We need to know if they work. What will the government be doing to monitor the effect of this legislation?

The Hon. G.E. GAGO: I am advised that we will do what we already do which is monitor our own statistics. We do that currently and we will continue to do that. As I have said, in terms of the reassurances around the broadening of exceptional circumstances, I have already indicated that we believe that our case law is well-developed and extremely strong in terms of providing very clear direction around what constitutes exceptional circumstances.

Amendment carried.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 3 [Broke–2]—

Page 3, line 10 [clause 4(2), inserted subsection (2ba)(a)]—After 'serious and organised crime offence' insert 'or specified offence against police'

Amendment No 4 [Broke–2]—

Page 3, lines 15 and 16 [clause 4(2), inserted subsection (2ba)(b)]—After 'serious and organised crime offence' insert 'or specified offence against police'

I advise the council that these are consequential amendments.

Amendments carried.

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

Amendment No 2 [Hood–1]—

Page 3, after line 26 [clause 4(3), inserted subsection (4)]—After paragraph (c) insert:

(ca) an offence under section 19AC;

My last amendment was to lengthen the period of time for which one would qualify for a second suspended sentence, that is, of the designated offences. What this amendment does is add to the designated offences and specifically adds dangerous driving to escape police pursuit to make that also a designated offence. If this amendment passes, an offender would not qualify for two suspended sentences against that offence in what would now be a five-year period unless there were exceptional circumstances.

The Hon. G.E. GAGO: The government rises to support this amendment. Very briefly, whilst the Hon. Mr Hood's first amendment extends the three-year period to five years, this second amendment and third amendment extend the application of this new provision to the offences of dangerous driving to escape police pursuit and serious criminal trespass in a place of residence, also known as a home invasion. For these reasons we support these amendments.

Amendment carried.

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

Amendment No 3 [Hood–1]—

Page 3, after line 32 [clause 4(3), inserted subsection (4)]—After paragraph (i) insert:

(ia) an offence under section 170;

Members will be pleased to hear this is the last one. This adds another designated offence to the list, so that will be a second one. The minister has just referred to it in her short contribution. This one is serious criminal trespass in a place of residence, otherwise known as a home invasion.

Amendment carried.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 5 [Broke–2]—

Page 4, after line 14 [clause 4(3), inserted subsection (4)]—After the definition of serious and organised crime offence insert:

specified offence against police means—

(a) an aggravated offence under section 23(1) or 23(3) of the Criminal Law Consolidation Act 1935 where the aggravating circumstances of the offence are the circumstances referred to in section 5AA(1)(c) of that Act and the victim is a police officer; or

(b) an offence of attempted murder or attempted manslaughter under the Criminal Law Consolidation Act 1935 where the victim is a police officer and the offender committed the offence—

(i) knowing the victim to be acting in the course of his or her official duty; or

(ii) in retribution for something the offender knows or believes to have been done by the victim in the course of his or her official duty.

Amendment carried; clause as amended passed.

Schedule and title passed.

Bill reported with amendment.

Third 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) (17:46): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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