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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-10-30 Daily Xml
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YOUNG OFFENDERS (RELEASE ON LICENCE) 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) (21:57): 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.

It was recently brought to the Government's attention that it would be beneficial to amend section 29(4) of the Young Offenders Act 1993 (the Young Offenders Act) to reflect both the Government's intention and the current practice of the Supreme Court that any youth sentenced to life imprisonment for the offence of murder is sentenced as an adult. Further, there is a need to resolve the potential conflict between the operation of sections 29(4) and 37 of the Young Offenders Act and section 32 of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act).

In certain circumstances, a court, when sentencing a youth, has the discretion to deal with that youth in the same way as an adult because of the gravity of the offence for which they are to be sentenced, or because the offence forms part of a pattern of repeated offending (see section 17 of the Young Offenders Act).

As it currently stands, if a youth has been found guilty of murder, then in accordance with section 29(4) of the Young Offenders Act and the Criminal Law Consolidation Act 1935, that youth must be sentenced to life imprisonment.

The courts have taken the view that, when sentencing a youth to life imprisonment for murder, it is only appropriate that the youth be sentenced as an adult. However, this position should be clearly reflected in the statute.

The Government supports this view. The crime of murder is so serious that any youth convicted of this offence should be sentenced as an adult.

The Bill therefore makes an amendment to section 29(4) to provide specifically that, when a youth is being sentenced to life imprisonment for murder, they are being sentenced as an adult.

This amendment will also ensure that, in all cases where a youth is being sentenced for murder, the court will continue to apply section 32 of the Sentencing Act due to the operation of section 31A.

When it commenced, the Sentencing Act did not apply to the sentencing of children.

Section 31A was inserted into the Sentencing Act in 1996. Section 31A was amended in 1998 and has not been amended since.

Section 31A states that Division 2 of the Sentencing Act (regarding the setting of non-parole periods and which includes section 32) does not apply in relation to a youth unless:

the youth is sentenced as an adult; or

is sentenced to detention to be served in a prison; or

is otherwise transferred to or ordered to serve a period of detention in prison.

Section 32 of the Sentencing Act states that, subject to the section, if a person is not subject to an existing non-parole period, the court must set a non-parole period. In all but the rarest of cases, this results in the setting of a non-parole period.

Once a non-parole period is set, at the conclusion of that period of time, the offender may apply for release on parole.

Section 31A makes it clear that, when a youth is sentenced as an adult, then section 32 applies regarding the setting of a non-parole period.

Therefore, the amendment to section 29(4) of the Young Offenders Act will ensure that any youth sentenced to life imprisonment for the offence of murder is sentenced as an adult, meaning the court will continue the practice of applying section 32 of the Sentencing Act regarding the setting of a non-parole period.

However, the Young Offenders Act contains a further provision which appears to have complicated the sentencing of young people for the offence of murder.

Prior to the Young Offenders Act, a youth sentenced for murder was subject to the Children's Protection and Young Offenders Act 1979 (the 1979 Act).

Under section 55(1) of the 1979 Act, a child convicted of murder could only be detained at the Governor's pleasure.

Pursuant to section 55(4) of the 1979 Act, the child, while 'detained in a training centre', could be released on licence by the Governor upon the recommendation of the Training Centre Review Board.

In R v Marshall (1986) 43 SASR 448 at 499 White J recommended that the Supreme Court be given the power to fix an appropriate sentence and a non-parole period (see page 500). Section 55(4) provided that the Governor may on a recommendation of the Parole Board or if the child is detained in a training centre, on the recommendation of the Training Centre Review Board, discharge the child on licence.

The 1979 Act therefore required a mechanism by which a youth sentenced for murder could be released. The release on licence was the mechanism by which release occurred.

By 1990 the 1979 Act had been amended so that a child who was convicted for murder had to be imprisoned for life (see section 55(1)).

But section 55(2) stipulated that 'a non-parole period cannot be fixed in respect of a sentence of life imprisonment imposed under this section'.

The absence of a power to fix a non-parole period therefore required a separate mechanism by which a youth convicted of murder could be released.

The 1979 Act was therefore also amended to include the precursor to section 37 whereby a child who had been sentenced to imprisonment for life and who was being detained in a training centre, could be released on licence by the Supreme Court.

The Sentencing Act commenced in 1988 and did not apply to the sentencing of children and the Young Offenders Act commenced in 1994.

The Young Offenders Act retained certain aspects of the 1979 Act, in particular it required that a youth sentenced for murder be sentenced to imprisonment for life (see section 29(4)) and did not expressly prohibit the fixing of a non-parole period for a youth sentenced to imprisonment for life.

The Young Offenders Act also retained the power of the Supreme Court to release on licence a youth sentenced to imprisonment for life who was detained in a training centre (under section 37).

Section 37 of the Young Offenders Act provides that if a youth has been sentenced to life imprisonment and is being detained in a training centre (as opposed to in a prison) then the youth may apply to the Supreme Court to be released on licence.

It was in 1996 that section 31A was inserted into the Sentencing Act which embedded in statute the practice that a non-parole period could be fixed for a youth sentenced as an adult. At that time, section 37 was untouched.

It was in 1998 that the courts took the view that any youth sentenced to life imprisonment for the offence of murder was sentenced as an adult.

However, both section 37 of the Young Offenders Act and sections 31A and 32 of the Sentencing Act remained.

The Government adamantly opposes the idea that a youth convicted of murder can be released before the applicable non-parole period has expired. Therefore section 37 has no work to do.

A non-parole period represents the minimum period of incarceration which the gravity of the crime committed requires and which is transparently set for that purpose. The initial sentencing process would be completely subverted if an offender, who is a youth, serving a sentence in a training centre, could be released on licence before serving that minimum period.

This Bill has been drafted reflecting this view. The remnant section 37 of the Young Offenders Act should and will be deleted.

The Government is of the view that section 32 of the Sentencing Act should cover the field with respect to potential early release on parole, by way of the fixing of a non-parole period, of any young offender:

sentenced as an adult; or

sentenced to detention to be served in a prison; or

otherwise transferred to or ordered to serve a period of detention in prison.

A transitional provision has also been included that reflects the Government's clear position.

Under the transitional provision, any right that has accrued under section 37 that has not yet been exercised is extinguished.

In addition, any right that has accrued, that has been exercised but not yet determined, is also extinguished.

This means that any application that has been made by a youth under section 37 but not determined prior to the commencement of this Act is defeated by force of the Act.

In addition, under the transitional provisions, any youth who has been sentenced to imprisonment for life, and who is being detained in a training centre, will not be able to make an application for release on licence under section 37 once the Act commences. This provision will apply regardless of whether the youth could have made such an application before the commencement of the Act.

So there will be no future applications for release under section 37.

Any release on licence of a youth under section 37 that has not been cancelled at the time of commencement of the Act will be taken to continue in accordance with its terms, even once the Act has commenced. In addition, section 37 of the Young Offenders Act, as in force immediately before the commencement of the Act, will be taken to continue to apply in relation to a release on licence continued under this transitional provision as if section 37 had not been repealed.

This is an anomaly with potentially poisonous and unintended consequences. It should be closed down at once.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Young Offenders Act 1993

3—Amendment of section 29—Sentencing youth as an adult

This clause amends section 29(4) of the principal Act to clarify that a youth sentenced to life imprisonment for murder is being sentenced as an adult.

4—Repeal of Part 5 Division 2

This clause repeals Part 5 Division 2 of the principal Act, thus repealing section 37 which allows youths convicted of murder and serving a life sentence in a training centre to apply for release on licence.

5—Amendment of section 42A—Training Centre Review Board may direct youth to surrender firearm etc

This clause makes a consequential amendment.

Schedule 1—Transitional provisions

1—Interpretation

This clause defines 'repealed section', namely section 37 of the principal Act.

2—Applications under section 37 of Young Offenders Act 1993

This clause extinguishes any applications for release on licence under section 37 of the principal Act that are currently on foot, and prevents future applications from being made, including in respect of youths who could, but for this measure, have made an application but did not.

3—Youths currently subject to licence

This clause provides for the continuation of any current releases on licence under section 37 of the principal Act in accordance with their terms, and continues the effect of that section in relation to dealing with the licences in future, for example where they are to be cancelled or the youth discharged.

Debate adjourned on motion of Hon. R.I. Lucas.

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