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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-03-15 Daily Xml
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STATUTES AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 1 March 2012.)

The Hon. D.G.E. HOOD (17:45): These are important matters, and perhaps it will assist the chamber if I make one speech on what is essentially a package of legislation that the government is attempting to put through this place at the moment. They are bills we know well; some of them have been on the Notice Paper for some time. They are the Serious and Organised Crime (Control) (Miscellaneous) Bill 2012, the Statutes Amendment (Serious and Organised Crime) Bill 2012, the Statutes Amendment (Criminal Intelligence) Bill back from 2010, the Summary Offences (Weapons) Amendment Bill 2010, the Criminal Law (Sentencing) (Sentencing Considerations) Amendment Bill 2011, and the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill 2012—although, of course, we have dealt with that one just a few moments ago.

Family First always supports measures to strengthen law and order in our community; by and large this is what this package does, and it has our support. In recent times there has been an escalation of gang violence in Adelaide, and this is indeed a most sad development. It has included a shooting in O'Connell Street, a bikie gang fight in Hindley Street in which a shot was fired, and the fatal shooting of the son of bikie Vince Focarelli during the fourth attempt on Vince Focarelli's life. Criminal gangs seem to be well established and regard themselves, in some cases, as being above the law. It is absolutely intolerable, and I am sure that is something all members of this chamber would agree with.

I am aware that much thought and consideration has gone into the format of the current bills. I need not repeat the history of previous legislation and the attitude of the High Court of Australia; we have seen these bills go through a number of twists and turns, if I can put it that way. It is hoped that these bills will overcome such difficulties and will result in an enforceable scheme that will enable the police to more effectively protect the community from the escalation of violence that we have seen in recent times and that, hopefully, we will not continue to see.

Looking specifically at the Serious and Organised Crime (Control) (Miscellaneous) Amendment Bill 2012, I intend to say a few words about the individual bills in this package. The Serious and Organised Crime (Control) (Miscellaneous) Bill enables the Commissioner of Police to apply to a court for an order that an organisation is a declared organisation. Where an eligible judge finds that members of an organisation associate for the purposes of criminal activity, and the organisation represents a risk to public safety and order, the judge may make an order that it is a declared organisation. This, combined with the provisions about control orders placed upon individuals, will make it much more difficult for criminals to associate in gangs for illegal purposes. It would be intolerable to take no action in circumstances where it is known that criminals associate in gangs for the purpose of criminal activity. Family First has no hesitation in supporting this bill.

Looking specifically at the Statutes Amendment (Serious and Organised Crime) Bill 2012, this bill makes numerous amendments to various acts that are required as a consequence of the Serious and Organised Crime (Control) (Miscellaneous) Bill. I need say no more about that at this particular time, other than it enjoys our support.

Looking specifically at the Statutes Amendment (Criminal Intelligence) Bill, that is something I imagine members in this place are very familiar with, given that it dates back to 2010. The concept of criminal intelligence brings into conflict the concept that courts should only act upon information where the person who is the source of that information comes forward and can be cross-examined. Where the police are dealing with criminal gangs, it is not always appropriate for this to occur and that is, indeed, the basis of the bill. Also, release of information may well prejudice ongoing investigations. The bill sets out procedures to enable courts to supervise this process and to ensure that certain information is kept confidential where this is necessary in the interests of justice. Family First supports this bill, and sees it as a necessary step in the fight against organised and very sophisticated crime networks.

Looking specifically at the Summary Offences (Weapons) Amendment Bill 2010, again, members in this place would be very familiar with this bill as it has some history in this place. The Summary Offences (Weapons) Amendment Bill broadens the restrictions on possessing and carrying weapons. Family First supports the view that a primary way to prevent violent crime is to restrict the ownership and possession of weapons in the community. Weapons take many forms, and this bill has been prepared in accordance with the current information as to the various types of weapons that are now available and used by offenders. It is always difficult to legislate to restrict items which may be used as weapons but which may also have an innocent use, and the Hon. Mr Wade has pointed out a number of those in the debate we have had in this place over the last several months.

Knives, of course, are in this category. This bill has detailed provisions as to when knives may be advertised, sold and carried and when they may not. A weapons prohibition order may be placed on a person who is a violent offender. The various measures comprised in this bill are beneficial. Any restrictions in freedoms resulting from the bill must give way to the greater good of seeking a community that is free of weapons.

Looking specifically at the Criminal Law (Sentencing) (Sentencing Considerations) Amendment Bill 2011, this bill I consider will be of assistance to all of us if we could consider some statements made in previous decisions of the courts. In the New South Wales Court of Criminal Appeal in the case of the Queen versus Thompson in the year 2000, Chief Justice Spigelman reviewed the state of the authorities in Australia that deal with the two-stage approach of arriving at a sentence in which an objective sentence is first determined and then adjusted by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities.

There was judicial resistance to the very notion that a sentence in a criminal case should be mathematically calculated. One difficulty is that there are always many factors that influence the judicial discretion in sentencing, and it was seen as inappropriate to set out a starting point sentence, so to speak, and then list each of, perhaps, 20 considerations, or thereabouts, with a plus or minus amount for each particular aspect in considering the overall sentence.

On review of this issue by the South Australian Court of Criminal Appeal in the case of the Queen versus Place on 26 March 2000, the majority of the court noted:

So long as the sentencing judge must, or may, take into account all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.

The court referred to the 1979 South Australian decision of the Queen versus Shannon, which emphasised the importance of a guilty plea being taken into account in sentencing. The court in R  versus Place 2002 said:

Following Shannon, it became common practice for sentencing courts to state in general terms that a plea of guilty had been given weight in mitigation. Initially, however, sentencing courts did not quantify the specific reduction given in the recognition of a plea of guilty. Considerable scepticism existed amongst offenders and their advisors as to whether a plea of guilty was given appropriate recognition in mitigation and, in particular, whether the weight given in mitigation varied to any significant degree according to when the plea was entered and the subjective circumstances accompanying it. A comparison of similar cases was an inadequate response to the scepticism because of varying circumstances and the range of the discretion available to the sentencing judges. By 1991 the Court of Criminal Appeal was encouraging sentencing judges to identify the specific reduction given as a consequence of the plea of guilty.

It did become the norm in appropriate cases throughout Australia, and certainly in South Australia, for judges to specify the calculation of the penalty in a two-step process so as to indicate to the offender that he or she was in fact receiving a true discount by reason of a guilty plea or other cooperation with police.

In the case that I have mentioned, that is, the Queen versus Place, the court concluded that, whilst it was desirable and appropriate to set out the calculation of the reduction in sentence due to the guilty plea being entered, it was not an appealable error if this was not done. There remains the possibility that the High Court may yet decide that this approach is not correct.

The purpose of the Criminal Law (Sentencing) (Sentencing Considerations) Amendment Bill is to set out in clear legislation what discounts apply in specific circumstances. In effect, it seeks to enshrine in existing practice in legislation so that it is there for all to see—something we support. An offender will certainly be advised as to the consequences of an early guilty plea. The principles of sentence reduction for an early plea or cooperation with the police and the requirement for the calculation to be set out by the judge cannot be overturned by a decision of the High Court as to the general principles applicable to criminal penalties as allowed under this bill.

Looking specifically at the bill we have just dealt with, the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill, it is a fundamental principle of an orderly society that crime must not pay. The advent of illicit drugs in our society has brought a challenge of this principle upon us. Trafficking illicit drugs can be extremely profitable. Drug traffickers are in the business to make money, that is why they are in the business. They do not care in many cases about the harm that drugs are known to cause both to individuals and to those who use them or to society as a whole.

It is our task to ensure, without any doubt, that when people consider embarking on the business of dealing in drugs that they are aware of the risk to their own freedom and, indeed, to their own finances. That consideration, together with consideration of the risk of a lengthy term of imprisonment, is the only real deterrent to such a person in many cases.

To state the converse, the best way to encourage drug trafficking in our society is to have lenient penalties such as suspended sentences and to allow career criminals to be confident that, over time, they have a good chance of making an overall financial gain that may indeed be very large as a result of their illegal activity. This bill addresses that very problem.

There are some in our society who would argue that people who commit crimes do not really consider the consequences of being caught and it is therefore pointless to prescribe significant penalties. My own view is that this may possibly apply to crimes of passion that occur in the heat of the moment but, here, we are dealing with criminals who make a calculated decision over time to embark on a course of conduct with a specific view to profit and usually that is their most significant motivation.

It is essential that we, as lawmakers, do all within our power to alter the calculation they make, so that the figures indicate that the chance of profit is outweighed by the risks that flow from being caught. Since the profits can potentially be very great, it necessarily follows that the penalties must also be quite substantial. This view is supported by research. I quote a key finding from the 2007 research paper by the Australian National Drug Law Enforcement Research Fund into the illicit drug trade in the United Kingdom:

The dealers viewed imprisonment either as an occupational hazard or an unlikely risk. Larger enterprises were generally able to be handed over to employees or colleagues when imprisonment occurred and imprisonment was at times seen as an opportunity to grow drug businesses. In all, imprisonment did not loom large as a potential problem for most dealers. By stark contrast, most dealers were very concerned about asset seizures. The risk was mitigated by the establishment of legitimate businesses and by ensuring that cash and drugs were not stored together.

This bill is part of a scheme to impose penalties in the form of confiscation of assets of serious drug offenders. It corrects a failure in the law in that, as the law presently stands, there is some prospect that a career drug trafficker might keep some assets gained from drug trafficking even after being prosecuted for some offences.

It is rarely possible to gain the evidence to prosecute a drug trafficker for all offences he or she has committed. Rather, if he has been detected and successfully prosecuted for three serious offences, chances are that he has gained a substantial amount of wealth from other drug offences that have not been the subject of prosecution. This bill increases the situations in which confiscation orders can be made.

Let me be clear. I have no sympathy whatsoever for those who commit a series of drug trafficking offences. There is every likelihood that such people have accumulated wealth not only from the offences for which they have been convicted but also from other offences that have not been detected. They should not be given the benefit of the doubt in allowing them to keep assets where the source of that income is not absolutely clear.

I do not accept the arguments by some that these assets should not be confiscated when there could be arguments that those particular assets may have been acquired earlier by fair means or by unfair means.

Some have raised arguments about the families of serious drug offenders. Indeed, the Hon. Ms Bressington made, I think, some very compelling arguments about the impact on people. She gave one particular account of the impact on a particular person who would seem somewhat hard done by under that particular set of circumstances and I think all of us would have some compassion in those particular circumstances. I think it is somewhat academic now that that bill has largely been dealt with.

In the interests of time, I might leave it there. Let me just say my final few words, if I may. Family First supports this series of bills. They are of course done with the best intent. I think there is scope for them to be improved somewhat. All of that will be considered in the committee stage, but I would say that they certainly have our support.

Debate adjourned on motion of Hon. J.M. Gazzola.

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