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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-07-17 Daily Xml
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STATUTES AMENDMENT (SERIOUS FIREARM OFFENCES) 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 Tourism, Minister for the Status of Women) (15:31): 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.

The last six months has seen an escalation in gun violence in Adelaide; much of it in public. Recently, The Advertiser highlighted the fourth shooting in Adelaide in eight days and, later, the fifth shooting in a fortnight. Later still, it was six in 18 days. The trend has continued unabated. At the end of May it was 5 shootings in 5 days. This level of serious firearm violence is intolerable.

Recent events in Queensland make it clear that members of criminal organisations will cross state borders to shoot people. The Queensland incident involved the shooting of an innocent female as collateral damage. It seems clear that incidents of this nature are the product of gang members fighting amongst themselves. The Government is attacking these criminal organisations through its serious and organised crime reforms, but a targeted attack on firearm crime is needed.

The courts do not impose substantial periods of imprisonment for offences against the Firearms Act 1977, despite the high maximum penalties available. In 2006-2010:

the penalty was a fine for 72.3% of cases heard in the Magistrates Court in which the major charge was a firearm offence;

the penalty was a suspended sentence for 59.1% of cases heard in the District Court in which the major charge for was a firearm offence. Only 22.7% of cases resulted in imprisonment.

Also, many firearms offences are committed while the offender is on conditional liberty (ie while on bail or parole). Between 2007 and 2011:

497 offenders were convicted of a firearms offence committed while on bail;

37 offenders were convicted of a firearms offence committed while on a suspended sentence; and

20 offenders were convicted of a firearms committed while on parole.

These figures are not satisfactory.

This proposal includes a series of interlocking measures aimed at attacking firearms offences at the serious end of the scale with a view to the protection of the public and the deterrence of those who commit these offences. A cornerstone of the proposal is the legislative creation of a category of offender to be known as a 'serious firearm offender'.

Serious firearm offenders

The Criminal Law (Sentencing) Act 1988 will be amended so that a new sentencing category of 'serious firearm offenders' is created. A person will be deemed a serious firearms offender in the following circumstances;

The person commits an offence against the Firearms Act 1977 while on conditional liberty (ie parole, bail, released on licence or subject to a suspended sentence) if a condition of that liberty was that the offender not possess a firearm;

The person commits an offence against the Firearms Act 1977 in the course of or for a purpose related to the commission of a serious drug offence;

The person commits an offence involving the use or possession of a firearm against the Firearms Act 1977 or the Criminal Law Consolidation Act 1935:

when that offence was committed in the circumstances contemplated by s 5AA(1)(ga) of the Criminal Law Consolidation Act 1935;

while subject to a control order under the Serious and Organised Crime (Control) Act 2008; or

in breach of a firearms prohibition order.

The person commits an offence involving the use or possession of a firearm against the Firearms Act 1977 or the Criminal Law Consolidation Act 1935 if that firearm:

is an automatic firearm;

is a prescribed firearm;

is a handgun and the person committing the offence does not have a licence for that handgun and if the handgun is not registered to that person.

It will not be possible to fall into this category except by personal liability; that is to say, the offender cannot be caught in this category by way of conviction for complicity in the crimes of another. Those guilty of this category of offences by way of complicity will be subject to quite severe criminal sanctions but the particularly harsh measures should be reserved for primary offenders.

Bail

There will be a presumption against bail for those who are charged with a serious firearm offence. If a serious firearm offender is to be granted bail, there will be a presumption that the grant of bail will contain a condition prohibiting the person from possessing any firearm, part of a firearm or any ammunition. That person will also be liable to random testing for gunshot residue. There will be a discretion for a bail authority to relieve the bail applicant from the mandatory conditions if there are cogent reasons for doing so and there is no undue risk to the safety of the public.

General Sentencing Reforms

Section 10 of the Criminal Law (Sentencing) Act 1988 will be amended to say that in sentencing for firearms offences, the primary role of sentence is to emphasise public safety and specific and general deterrence.

The consequence of falling within the 'serious firearm offender' category is that there is a presumption that a sentence of immediate imprisonment will be imposed on conviction. The only reason for not imposing a sentence of immediate imprisonment will be if exceptional circumstances exist - exceptional circumstances cannot be found unless the sentencing court is satisfied by evidence on oath that the personal circumstances of the offender are sufficiently exceptional to outweigh the primacy of public safety and personal and general deterrence.

Some explanation of the general meaning of 'exceptional circumstances' may be helpful. In R v Kelly(Edward) [2000] QB 198. Lord Bingham of Cornhill said:

We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

In R v Fowler [2006] SASC 18, Gray and Layton JJ had occasion to describe the difference between 'exceptional circumstances' and 'good reason':

There is a substantial and important difference between the 'exceptional circumstances' test as discussed in Manglesdorf 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 the 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. Such an approach would require the fulfilment of conditions which contradict the statutory requirement.

Reforms to Forms of Conditional Release

The Criminal Law (Sentencing) Act 1988 and other applicable legislation will be amended so that it is presumed that every form of conditional release (probation, parole, on bail, release on licence or on a suspended sentence) contains conditions prohibiting the possession of any firearm or ammunition and subjecting the person to random testing for gunshot residue. The conditions may be excluded or modified by the release authority.

The provision relating to gunshot residue testing is precautionary and intended to act as a deterrent. Given current procedures for testing, the condition will be used infrequently. If the testing technology adapts to accommodate this initiative the condition may be used more frequently.

Amendments to Serious Repeat Offenders Provisions

It is proposed to amend the Criminal Law (Sentencing) Act 1988 to reform the provisions dealing with serious repeat offenders.

First, the declaration provisions will be amended so that two repeat convictions for any one of the new category of serious firearm offences described above will qualify for a declaration. That will also be so for:

Home invasions; and

Any criminal offence aggravated by being committed in association with a serious criminal organisation.

Second, the declaration provisions will be amended so that a person is a declared serious repeat offender if there is repeat offending on three occasions for:

Home invasions;

Any criminal offence aggravated by being committed in association with a serious criminal organisation; and/or

The new category of serious firearm offences described above;

It should be possible to avoid being sentenced as a serious repeat offender only if the sentencing court is satisfied by evidence on oath that the personal circumstances of the offender are sufficiently exceptional to outweigh considerations of public safety and it is not appropriate, in all the circumstances, that the offender be sentenced on the basis of a declaration.

Shooting at Police Officers

In order to provide greater protection for police officers, the Bill also inserts a new section 29A into in the Criminal Law Consolidation Act 1935, with the new section creating two new offences relating to shooting at police officers.

First, section 29A(1) creates an offence constituted by a person discharging a firearm intending to hit a police officer (whether or not the person intends to cause the police officer a particular level of harm), or being reckless as to whether the police officer is hit, and by that conduct causing serious harm to the police officer. An offence against the new subsection carries a maximum penalty of 25 years imprisonment.

The second offence, created by section 29A(4), occurs if a person discharges a firearm intending to hit the police officer (whether or not the person intends to cause a particular level of harm), or being reckless as to whether the police officer is hit. It is not necessary that the police officer is, in fact, hit or suffers any harm. An offence against new subsection (4) carries a maximum penalty of 10 years imprisonment.

Both of the new offences are serious firearm offences under the measure, and conviction of either offence will see the defendant become a serious firearm offender.

Shooting at Premises

It is quite clear that there has been an increase in the number of drive-by shootings both in this State and elsewhere. The Government will not put up with this type of criminal behaviour.

The problem faced by SAPol when confronted with this type of reckless and dangerous act is that if no person is home at the time of the drive-by shooting it is very difficult, if not impossible, to successfully prosecute the offender for an act endangering life or creating risk of serious harm. The only other charge available (other than the general offence of possessing a firearm for a purpose not authorised by a firearms licence under s 11 of the Firearms Act 1977) is under s 51 of the Summary Offences Act 1953 which says:

51—Use of firearms

(1) A person who discharges a firearm or throws a stone or other missile, without reasonable cause and so as to injure, annoy or frighten, or be likely to injure, annoy or frighten, any person, or so as to damage, or be likely to damage, any property, is guilty of an offence.

Maximum penalty: $10,000 or imprisonment for 2 years.

(2) In this section—firearm means a gun or device, including an airgun, from or by which any kind of shot, bullet or missile can be discharged; throw includes to discharge or project by means of any mechanism or device.

A two year period of imprisonment is not good enough for offending involving firearms.

The Bill will create two new categories of offences. One will deal with missiles and remain in the Summary Offences Act 1953. The other will deal with firearms and will go into the Criminal Law Consolidation Act 1935 with considerably enhanced penalties.

The offence to be inserted in the Criminal Law Consolidation Act 1935 will be a new s 32AA. The offence deals with the discharge of a firearm without lawful excuse. The series of offences distinguishes between intentional and reckless offences, the former being more serious. It also distinguishes between offences aimed at personal safety and offences aimed at property.

Conclusion

These measures are a major attack by the Government on serious firearm crime and complacent attitudes to serious firearm crime. We must make it clear that serious firearm crime will not be tolerated. The Government calls on Parliament to support these measures.

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 Bail Act 1985

4—Amendment of section 3—Interpretation

This clause amends section 3 of the Bail Act 1985 to insert definitions of ammunition and firearm.

5—Amendment of section 10A—Presumption against bail in certain cases

This clause amends section 10A of the Bail Act 1985 to extend the categories of prescribed applicants in relation to whom a presumption against bail exists to include a person taken into custody in relation to a serious firearm offence under this measure.

6—Amendment of section 11—Conditions of bail

This clause amends section 11 of the Bail Act 1985 to impose the conditions specified in new subsection (1) on every grant of bail. However, if a bail authority is satisfied that there are cogent reasons for doing so, and that the safety of the public is not unduly risked, then the bail authority may vary or revoke those conditions.

The clause also makes procedural provisions in relation to such a variation or revocation.

7—Insertion of section 11A

This clause inserts new section 11A into the Bail Act 1985. That section allows a bail authority to direct a person granted bail that is subject the condition imposed by new section 11(1)(a) to surrender to police any firearms, ammunition or parts of firearms the person may own or possess. Refusal or failure to comply with a direction is an offence.

The new section requires the Commissioner of Police to deal with the firearms etc in accordance with the scheme to be set out in the regulations.

No compensation is payable in relation to firearms etc surrendered in accordance with a direction under the new section.

Part 3—Amendment of Correctional Services Act 1982

8—Amendment of section 4—Interpretation

This clause makes a consequential amendment.

9—Amendment of section 37A—Release on home detention

This clause amends section 37A of the Correctional Services Act 1982 to impose the conditions specified in subclause (1) on every release of a prisoner on home detention. The Chief Executive Officer can only vary or revoke the conditions if satisfied that there are cogent reasons for doing so, and that the safety of the public is not unduly risked.

10—Amendment of section 66—Automatic release on parole for certain prisoners

This clause extends the class of prisoner to whom section 66(1) of the Correctional Services Act 1982 does not apply (a subsection that provides for automatic release on parole for certain prisoners) to include serious firearm offenders.

11—Amendment of section 68—Conditions of release on parole

This clause adds conditions that a prisoner not possess a firearm, any part of a firearm or any ammunition, and that the prisoner submit to related tests, to the conditions that a release on parole must be subject to.

Such conditions are designated as conditions, that, if breached, will result in automatic cancellation of parole.

12—Insertion of section 68A

This clause inserts new section 68A into the Correctional Services Act 1982. That section allows the Parole Board to direct a person granted bail that is subject the condition imposed by new section 68(1)(a)(ia) to surrender to police any firearms, ammunition or parts of firearms the person may own or possess. Refusal or failure to comply with a direction is an offence.

The new section requires the Commissioner of Police to deal with the firearms etc in accordance with the scheme to be set out in the regulations.

No compensation is payable in relation to firearms etc surrendered in accordance with a direction under the new section.

13—Amendment of section 71—Variation or revocation of parole conditions

This clause inserts new subsection (5) into section 71 of the Correctional Services Act 1982, providing that the Parole Board can only vary or revoke the conditions imposed by new section 68(1)(a)(ia) and (iii)(C) on the release on parole of a person if satisfied that there are cogent reasons for doing so, and that the safety of the public is not unduly risked.

Part 4—Amendment of Criminal Law (Sentencing) Act 1988

14—Amendment of section 10—Matters to be considered by sentencing court

This clause inserts new subsection (3a) into section 10 of the Criminal Law (Sentencing) Act 1988, which provides that a primary policy of the criminal law in relation to offences involving firearms is to emphasise public safety by ensuring that, in any sentence for such an offence, paramount consideration is given to the need for specific and general deterrence.

15—Insertion of Part 2 Division 2AA

This clause inserts new Part 2 Division 2AA into the Criminal Law (Sentencing) Act 1988 as follows:

Division 2AA—Serious firearm offenders

20AA—Interpretation This section defines key terms used in the Division.

20AAB—Serious firearm offenders

This section provides that a person is, by force of the section, a serious firearm offender if he or she is convicted of a serious firearm offence (as defined in new section 20AA). It does not matter whether the offence was committed as an adult or as a youth.

However, subsection (2) provides that subsection(1) does not apply in respect of offences where the basis of the conviction is the derivative liability of the defendant; that is, subsection (1) will only apply to an offence actually committed by the defendant.

20AAC—Sentence of imprisonment not to be suspended

If a court is sentencing a serious firearm offender for a serious firearm offence that carries a sentence of imprisonment, then a sentence of imprisonment must be imposed. That sentence cannot be suspended (except in the case where a defendant satisfies (by evidence given on oath) the sentencing court of the matters specified in subsection (2)).

The new section also makes procedural provisions in relation to sentencing.

16—Amendment of section 20A—Interpretation and application

This clause amends section 20A of the Criminal Law (Sentencing) Act 1988 to insert definitions of terms used in the sections inserted or amended by the measure.

17—Amendment of section 20B—Serious repeat offenders

This clause amends section 20B of the Criminal Law (Sentencing) Act 1988 by inserting new section 20B(a1). The new subsection provides that a person will be a serious repeat offender (without a court needing to make an order or declaration) if he or she commits and is convicted of at least three category A serious offences that occurred on separate occasions (namely any combination of home invasion, serious and organised crime offences and serious firearm offences, all of which are defined in section 20A).

Section 20B is further amended to allow a court to declare a person to be a serious repeat offender if the person commits and is convicted of a category A serious offence on 2 separate occasions.

18—Insertion of section 20BA

This clause inserts new section 20BA into the Criminal Law (Sentencing) Act 1988, which replaces current section 20(4) and sets out how a court may sentence a person who is a serious repeat offender.

The clause allows a court to declare that the provisions of section 20BA(1) do not apply to a person's sentencing if the person gives evidence on oath that satisfies the court of the matters specified in subsection (2).

19—Amendment of section 24—Release on licence

This clause amends section 24 of the Criminal Law (Sentencing) Act 1988 to impose the conditions specified in new subsection (2a) on every release of a person on licence under that section. However, if the appropriate board is satisfied that there are cogent reasons for doing so, and that the safety of the public is not unduly risked, then the bail authority may vary or revoke those conditions.

20—Insertion of section 24A

This clause inserts new section 24A into the Criminal Law (Sentencing) Act 1988. That section allows the appropriate board to direct a person released on licence under section 24 of that Act (being a release on licence that is subject the condition imposed by new section 24(2a)(a)) to surrender to police any firearms, ammunition or parts of firearms the person may own or possess. Refusal or failure to comply with the direction is an offence.

The new section requires the Commissioner of Police to deal with the firearms etc in accordance with the scheme to be set out in the regulations.

No compensation is payable in relation to firearms etc surrendered in accordance with a direction under the new section.

21—Amendment of section 42—Conditions of bond

This clause amends section 42 of the Criminal Law (Sentencing) Act 1988 to impose the conditions specified in the clause on every bond granted under section 38 that Act (that is, bonds relating to suspended sentences).

22—Insertion of section 42A

This clause inserts new section 42A into the Criminal Law (Sentencing) Act 1988. That section allows a probative court to direct a probationer under a bond granted under section 38 (being a bond that is subject the firearm conditions imposed by new section 42(a1)(a)) to surrender to police any firearms, ammunition or parts of firearms the probationer may own or possess.

The new section requires the Commissioner of Police to deal with the firearms etc in accordance with the scheme to be set out in the regulations.

No compensation is payable in relation to firearms etc surrendered in accordance with a direction under the new section.

23—Amendment of section 44—Variation or discharge of bond

This clause inserts new subsection (1c) into section 44 of the Criminal Law (Sentencing) Act 1988, providing that a probative court can only vary or revoke the conditions on a bond imposed by section 42(a1) if satisfied that there are cogent reasons for doing so, and that the safety of the public is not unduly risked.

Part 5—Amendment of Criminal Law Consolidation Act 1935

24—Amendment of heading to Part 3

This clause makes a consequential amendment to the heading to Part 3 of the Criminal Law Consolidation Act 1935.

25—Amendment of section 21—Interpretation

This clause amends section 21 of the Criminal Law Consolidation Act 1935 to include the new offences inserted by the measure into the alternative verdicts scheme of Part 3 Division 7A of the Act.

26—Insertion of section 29A

This clause inserts a new section 29A into in the Criminal Law Consolidation Act 1935, with the section creating two new offences. First, section 29A(1) creates an offence constituted by a person discharging a firearm intending to hit a police officer (whether or not the person intends to cause the police officer a particular level of harm), or being reckless as to whether the police officer is hit, and by that conduct causing serious harm to the police officer. An offence against the new subsection carries a maximum penalty of 25 years imprisonment.

The second offence, created by section 29A(4), occurs if a person discharges a firearm intending to hit the police officer (whether or not the person intends to cause a particular level of harm), or being reckless as to whether the police officer is hit. It is not necessary that the police officer is, in fact, hit or suffers any harm. An offence against new subsection (4) carries a maximum penalty of 10 years imprisonment.

The new section makes procedural and evidentiary provisions relating to the new offences, and provides for an alternative verdict to be returned in specified circumstances.

27—Insertion of Heading to Part 3 Division 7AB

This clause inserts a heading to new Part 3 Division 7AB of the Criminal Law Consolidation Act 1935.

28—Insertion of section 32AA

This clause inserts new section 32AA into the Criminal Law Consolidation Act 1935, which creates offences in respect of discharging a firearm with intent to injure etc a person or damage property, or being reckless as to whether discharging the firearm does or may injure etc a person or damage property.

In prosecuting the offence, it is not necessary for the prosecution to establish that a person was, in fact, injured, annoyed or frightened or that property was, in fact, damaged (as the case requires) by the defendant's actions: in other words, it is the nature of the defendant's conduct that underpins the offence, not whether anyone was actually injured etc.

The new section defines what it means to be 'reckless' in respect of the offences.

29—Amendment of section 269O—Supervision

This clause amends section 269O of the Criminal Law Consolidation Act 1935 to impose the conditions specified in new section 269O(1a) on every licence under which a person is released under new section 269O(1)(b)(ii). However, if a court is satisfied that there are cogent reasons for doing so, and that the safety of the public is not unduly risked, then the court may vary or revoke those conditions.

30—Insertion of section 269OA

This clause inserts new section 269OA into the Criminal Law Consolidation Act 1935. That section allows a court to direct a person subject to a supervision order (being an order that is subject the condition imposed by new section 269O(1a)(a)) to surrender to police any firearms, ammunition or parts of firearms the person may own or possess.

The new section requires the Commissioner of Police to deal with the firearms etc in accordance with the scheme to be set out in the regulations.

No compensation is payable in relation to firearms etc surrendered in accordance with a direction under the new section.

Part 6—Amendment of Summary Offences Act 1953

31—Substitution of section 51

This clause substitutes a new section 51 into the Summary Offences Act 1953. The new section extends the operation of the current section 51 to include an offence of throwing a missile where a person is reckless as to whether that act injures, annoys or frightens (or whether it may injure, annoy or frighten) any person, or damages (or may damage) property.

In prosecuting the offence, it is not necessary for the prosecution to establish that a person was, in fact, injured, annoyed or frightened or that property was, in fact, damaged (as the case requires) by the defendant's actions: in other words, it is the nature of the defendant's conduct that underpins the offence, not whether anyone was actually injured etc.

Part 7—Amendment of Young Offenders Act 1993

32—Amendment of section 4—Interpretation

This clause amends section 4 of the Young Offenders Act 1993 to insert the definition of serious firearm offender.

33—Amendment of section 15A—Interpretation

The clause amends section 15A of the Young Offenders Act 1993 to add whether or not the youth is a serious firearm offender to the list of matters that must be taken into consideration in deciding whether a youth poses an appreciable risk to the safety of the community.

34—Amendment of section 23—Limitation on power to impose custodial sentence

This clause amends section 23 of the Young Offenders Act 1993 to allow a sentence of detention to be imposed in respect of a youth who is a serious firearm offender.

35—Amendment of section 37—Release on licence of youths convicted of murder

This clause inserts new subsection (3a) into section 37 of the Young Offenders Act 1993 to impose the conditions specified in the new subsection on every release of a youth on licence under the section. The Training Centre Review Board can only vary or revoke the conditions if it is satisfied that there are cogent reasons for doing so, and that the safety of the public is not unduly risked.

36—Amendment of section 41A—Conditional release from detention

This clause amends section 41A of the Young Offenders Act 1993 to provide that the release of a youth from detention is subject to the conditions specified in the clause.

The Training Centre Review Board can only vary or revoke the conditions if it is satisfied that there are cogent reasons for doing so, and that the safety of the public is not unduly risked.

37—Insertion of Part 5 Division 3A

This clause inserts Part 5 Division 3A into the Young Offenders Act 1993. New section 41D allows the Training Centre Review Board to direct a youth whose release from detention is subject the condition imposed by new section 37(3a)(a), or section 41A(2)(c)(iia) or 41A(3)(c)(iia), to surrender to police any firearms, ammunition or parts of firearms the youth may own or possess. Refusal or failure to comply with a direction is an offence.

The new section requires the Commissioner of Police to deal with the firearms etc in accordance with the scheme to be set out in the regulations.

No compensation is payable in relation to firearms etc surrendered in accordance with a direction under the new section.

Debate adjourned on motion of Hon. J.M.A. Lensink.

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