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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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CRIMINAL LAW (SENTENCING) (SENTENCES OF INDETERMINATE DURATION) AMENDMENT BILL

Second Reading

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) (22:38): 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 Bill amends Division 3 of Part 2 of the Criminal Law (Sentencing) Act 1988.

The present legislative scheme

Part 2 Division 3 was enacted to deal with offenders of a particular class; namely, sexual offenders. The Government of the day believed that an offender who has been assessed as being incapable of controlling, or unwilling to control, his or her sexual instincts, is a grave enough risk to warrant an overturning of the fundamental principle of proportionality in sentencing in order to protect society from the likely recidivism of the offender.

Section 23 of the Act currently provides that, if a person has been convicted of a relevant sexual offence, the Supreme Court may order that the person be medically assessed as to whether they are incapable of controlling, or unwilling to control, his or her sexual instincts. On receipt of the reports of this assessment, or if the offender refuses to cooperate with an assessment ordered by the Court, the Court may order that the offender be detained in custody until further order (known as an indeterminate sentence).

The purpose of an order under section 23 is principally for the protection of the community and not for the punishment of the offender. It has been held that the power to make an order under section 23 is exceptional and should be exercised with caution and where there is cogent and acceptable evidence justifying the making of the order. A release on licence under section 24 involves the exercise of a discretion on similar criteria to those under section 23(11) but has been granted more readily than a discharge of the order itself. The Supreme Court has held that a determination of an application under section 24 involves balancing the interests of the applicant on the one hand and those of the community on the other.

Community Safety

The Government is of the view that this test, involving a balancing of the interests of the applicant and the community, is not acceptable. The safety of the community must be regarded as the paramount consideration when the Supreme Court considers either an application for discharge of an order under section 23 or an application for release on licence under section 24.

Accordingly, the Bill makes amendments to the current test for the discharge of an indeterminate sentence order and imposes a new test for a release on licence under section 24. When considering such applications, the Court will be required to take into account the safety of the community as the paramount consideration. This test is akin to the test included in section 67 of the Correctional Services Act 1982, which provides that the paramount consideration for the Parole Board when determining an application for the release of a prisoner who is not eligible for automatic parole must be the safety of the community.

In addition, the Government is taking the opportunity to make amendments to the test for the making of an indeterminate detention order. Once again, the Bill will require the Court to take into account the safety of the community as the paramount consideration.

Reports

The Bill amends the matters that the Supreme Court must take into account when determining an application for a discharge of an indeterminate sentence order or an application for release on licence under section 24. Previously, the Court was only required to consider the report of at least 2 legally qualified medical practitioners when determining an application for a discharge of an indeterminate sentence order. The Bill imposes the same requirement in relation to an application for release on licence. In addition, the Bill inserts a requirement that the medical practitioners be nominated by a prescribed authority.

The Bill also imposes a requirement for the Court to consider a report furnished by the Training Centre Review Board or Parole Board (as the case may be) when determining an application for a discharge of an indeterminate sentence order or an application for release on licence. This provision will give the relevant Board an opportunity to present its opinion to the Court on the effect that the applicant's release may have on the safety of the community, the probable circumstances of the person if released (either through discharge of the indeterminate sentence order or release on licence), and the recommendation of the relevant Board in relation to the application.

Finally, the Bill reduces the frequency of the relevant Board's requirement to review and report under section 23(9) to annually rather than bi-annually, and provides that the purpose of the review is for the relevant Board to make a recommendation about whether the person the subject of the review is either suitable for release on licence or, if the person has already been authorised to be released or has been released, whether the person is suitable to be so released.

Relevant offence

The Bill amends the definition of relevant offence in section 23(1) to include an offence of failing to comply with any reporting obligation relating to contact with a child without a reasonable excuse where the defendant is a registrable offender under the Child Sex Offenders Registration Act 2006.

Transitional provisions

The Bill inserts Schedule 2. This Schedule contains a transitional provision to enable the Supreme Court to conduct what is essentially a re-hearing of a prior decision to release on licence a person subject to an indefinite detention order. The Schedule gives the Director of Public Prosecutions a discretion to apply for the cancellation of an existing order for release on licence. When considering such an application, the Court must take into account the same matters that must be taken into account when determining an application for release on licence as provided by the amendments provided for in the Bill.

Ultimately, the purpose of this Bill is to ensure that the safety of the community is the paramount consideration for the Court when determining any applications under this legislative scheme.

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 Criminal Law (Sentencing) Act 1988

4—Amendment of section 23—Offenders incapable of controlling, or unwilling to control, sexual instincts

This clause amends section 23 to separate the provisions relating to the making of an order to detain a person who is incapable of controlling, or unwilling to control, his or her sexual instincts in custody until further order from the provisions relating to the discharge of such an order.

The amendments clarify that, before determining whether to make an order that a person to whom section 23 applies be detained in custody until further order, the Supreme Court must direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the person's mental condition and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.

The amendments emphasise that the paramount consideration of the Supreme Court when determining whether to make such an order must be the safety of the community.

The list of other matters to which the Court must take into account when determining whether to make such an order is as follows:

the reports of the medical practitioners (as directed and nominated under proposed subsection (3)) furnished to the Court;

any relevant evidence or representations that the person may desire to put to the Court;

any report required by the Court under section 25;

any other matter the Court thinks relevant.

Proposed new subsection (5c) is similar to current section 23(5)(b) except that it now includes a reference to the paramount consideration being the safety of the community.

It is proposed to substitute subsection (9) with a new subsection that substantially restates what is in the current subsection and adds that the purpose of the annual review by the Training Centre Review Board or Parole Board (as the case requires) is for the relevant Board to make a recommendation about whether the person the subject of the review is either suitable for release on licence under section 24 or, if the person has already been authorised to be released or has been released, whether the person is suitable to be so released.

The clause also adds to the list of offences that constitute a relevant offence (as set out in current section 23(1)) the offence of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse where the defendant is a registrable offender within the meaning of the Child Sex Offenders Registration Act 2006.

Other amendments are of a minor nature.

5—Insertion of section 23A

New section 23A includes the provisions (with additions and amendments) from current section 23 that provide for the discharge of orders for detention under section 23.

23A—Discharge of detention order under section 23

Subsection (1) of this new section is similar to current section 23(11) and provides that, subject to the Act, a person subject to an order for detention under section 23 will not be released from detention under that section until the Supreme Court, on application by the Director of Public Prosecutions or the person, discharges the order for detention.

The Supreme Court must, before determining an application for the discharge of an order for detention under section 23, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the person subject to the order and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.

This new section also provides (as in the proposed amendments to section 23) that the paramount consideration of the Supreme Court when determining an application for the discharge of an order for detention under section 23 must be the safety of the community.

Similarly to what is proposed to be inserted in section 23, the Supreme Court must also take into account various other matters when determining an application for the discharge of an order for detention under section 23 as set out below:

the reports of the medical practitioners (as directed and nominated under proposed subsection (2)) furnished to the Court;

any relevant evidence or representations that the person may desire to put to the Court;

a report furnished to the Court by the Training Centre Review Board or Parole Board (as the case may be) in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including—

any opinion that the relevant Board may have about the effect the discharge of the order may have on the safety of the community; and

a report as to the probable circumstances of the person if the order is discharged;

the recommendation of the relevant Board about whether the order should be discharged;

the reports resulting from the periodic reviews under section 23(9) by the relevant Board on the progress and circumstances of the person tendered to the Court;

any other report required by the Court under section 25;

any other matter that the Court thinks relevant.

A copy of a report furnished to the Supreme Court under this new section must be given to each party to the proceedings or to counsel for those parties.

6—Amendment of section 24—Release on licence

This clause makes amendments to section 24 that are consistent with the amendments to section 23 and new 23A; inserts a requirement that the Court take into consideration evidence tendered to the Court of the estimated costs directly related to the release of the person on licence; and makes a consequential amendment.

7—Amendment of section 25—Court may obtain reports

This proposed amendment is consequential on the proposed insertion of Schedule 2.

8—Insertion of section 25A

It is proposed to insert a new section 25A that is substantially the same as what is currently provided for in current section 23(4).

25A—Inquiries by medical practitioners

New section 25A provides that where, for the purposes of Part 2 Division 3 of the principal Act, the Supreme Court directs that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority) inquire into the mental condition of a person and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts, each medical practitioner so nominated—

must carry out an independent personal examination of the person; and

may have access to any evidence before the court by which the person was convicted; and

may obtain the assistance of a psychologist, social worker, community corrections officer or any other person.

9—Insertion of Schedule 2

This clause inserts Schedule 2:

Schedule 2—Reconsideration of authorisations to release on licence under section 24

Schedule 2 provides for a scheme by which the Supreme Court may, on application by the Director of Public Prosecutions, cancel or confirm the release on licence of a person to whom clause 1 of the Schedule applies (being a person subject to an order for detention under section 23 who, before the commencement of the clause, has been authorised by the Supreme Court under section 24 to be released on licence). The scheme is consistent with the proposed amendments to Part 2 Division 3 of the principal Act set out above.

Debate adjourned on motion of Hon. D.W. Ridgway.

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