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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-03-13 Daily Xml
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CRIMINAL LAW (SENTENCING) (SENTENCING CONSIDERATIONS) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: This bill was last considered by the council in September last year. When I last spoke on this bill on 29 September, I highlighted:

...this bill is not about doing justice; it is about managing justice. It is about trying to ease the pressure on an overstretched and under-resourced system.

I am even more convinced of that fact now, but now I am convinced that, worse than that, this bill devalues and denies justice. The bill not only codifies sentence discounts, it increases them across the board. Defendants will be sentenced for shorter sentences than their crime deserves. The government brags about increasing maximum terms of imprisonment. They complain that courts are not tough enough, then they turn around and discount the sentences anyway.

This bill is not about justice; it is about a lazy way to deal with 10 years of Labor mismanagement. The courts are clogged. Some people are literally waiting years to have their cases heard. Our prisons are 30 per cent overcrowded. The government introduced this bill to let criminals out early if they help unclog the courts by pleading guilty early.

Criminals will be able to serve less time than their crime deserves and less time than the community expects. On a 10-year sentence, under the government's proposal an offender would be out eight months earlier than they would before this bill. Increased across the board discounts send the wrong message on crime. Many in the community are already concerned that sentences are too short. It will undermine public confidence in the sentencing process.

Increased general discounts also undermine rehabilitation. Given the length of rehabilitation programs, shorter sentences will mean that fewer offenders will access them, fewer offenders will be subject to parole and, therefore, given the incentive to engage in rehabilitation programs. Further, increased general discounts provide a general incentive for innocent people to plead guilty just to finalise the process.

One of the most objectionable elements of the original bill was the fact that the government was insisting on maintaining a no-discount period. That was insulting to witnesses and victims who might otherwise avoid the emotional trauma of reliving the experience in court. The government had foreshadowed its intention to introduce amendments to rectify that problem. I notice that it has not done so; there are no amendments on file; and I express the Liberal Party's ongoing concern about the maintenance of the no-discount period in the legislation.

So that the government cannot be confused about the extent of our concern about this bill, I want to highlight some of the other flaws by recounting the observations of my honourable colleagues in previous debates. The Hon. Dennis Hood, on behalf of Family First, highlighted the impact on the poor who are reliant on legal aid. Low-income defendants who are reliant on legal aid must often wait weeks or even months, he reminded us, before having a lawyer assigned to them, and under this bill they would face the potential of higher penalties. That is unfair. I think it is disgraceful that the Labor Party, which claims to stand up for working-class South Australians, could be so unfair to the poor. Even the government's foreshadowed amendments did not address that flaw.

The Hon. Kelly Vincent, on behalf of Dignity for Disability, expressed her horror with the undermining of defendants' rights. She observed that under the bill lawyers will have no choice but to advise an early guilty plea even when there is not necessarily enough information available for them to know the details of the prosecution's case. The bill will result in injustice for defendants and victims. Further, she expressed concern at how the bill obliterates the flexibility needed for defendants with disabilities. The government's foreshadowed amendments do not address these flaws.

The Hon. Mark Parnell, on behalf of the Greens, questioned whether the common law should be codified at all. He makes the point that under our law everyone is presumed to be innocent until they are proved beyond a reasonable doubt to be guilty. The accused person has the right to put the prosecution to its proof and to challenge that evidence in court. He made the point that an accused person should not be unreasonably pressured into pleading guilty within an arbitrary time frame in order to potentially qualify for a sentencing discount, especially when the evidence is unknown or unclear or, in the worst-case situation, they are, in fact, innocent.

The Hon. Mr Parnell asked whether sentencing discounts are the right tools for what is essentially a case management problem. Even the government's foreshadowed amendments do not address these flaws. The Hon. Ann Bressington noted that:

...we are not improving the law here...the law works in this area perfectly well as it stands. We have a backlog in our justice system, but that is more about a resourcing issue than it is about whether or not people get discounts on their sentences for an early guilty plea.

Again, the government's foreshadowed amendments which have not been filed do not address this situation. Another aspect of this bill is the proposal for a 100 per cent discount where the defendant can provide information in relation to serious and organised crime. The Attorney has brashly referred to these discounts as 'Get out of jail free' cards. To quote his comments in the House of Assembly on 14 February:

...if you are dopey enough to get involved in this stuff, you still have a 'Get out of jail free' card...You still have that card if you 'fess up and you start telling people who can then prosecute other people. It adds to the incentive. For those people who want to stay out of gaol, the incentive is, do not do it. If you get caught, the incentive is you cough up and explain what is going on and you are not going to be touched by [assets confiscation] either.

The opposition's view is that handing out 'Get out of gaol free' cards may free up the courts and the prisons but it is no way to fight crime and it is no way to deliver justice. The government is eager to do deals which trade with justice. Under current law, criminals can already get discounts for cooperation of up to 40 per cent. Making them uncapped, giving a 100 per cent discount, is taking us into uncharted waters and may act, in fact, as an incentive to crime.

One of the ironies of this legislation is that on the one hand the government is removing the differential discount available to informants involved in ordinary crimes and they want to more than double the discounts for South Australia's most infamous, serious and organised criminals. My concern is that abolishing sentences for serious criminals may well open Pandora's box. It is an untested gamble.

Criminals are risk takers. This law would encourage criminals to get involved in serious and organised crime so that they qualify for a 'get out of gaol free' card. Our most serious criminals will be encouraged to go for broke in their prosecution negotiations, fabricate stories and drive an all or nothing deal to try to walk free. Informants are notoriously unreliable. Serious criminals could lie their way out of gaol and not serve one day for their crimes.

Shifting from the current discount approach to offering 'get out of gaol free' cards, as this government proposes, fundamentally changes the dynamics. Having 'get out of gaol free' cards on the table will empower criminals—they can demand all or nothing. Trials will become about striking a deal rather than delivering justice. It is a high risk strategy to deal with crime, but what is certain is that it will ensure that those who do the crime will not do the time.

I remind the committee that the courts have long recognised the public benefit in encouraging informants. Serious criminals have been able to get up to a 40 per cent discount off their sentences. The courts have seen that as a fair balance with justice, but now the Weatherill government wants to throw caution to the wind and let informants escape punishment completely. Under this Labor government, criminals will do the crime but will not do the time.

In relation to the basic fundamentals of the legislation, early guilty plea bids and the treatment of informants, the opposition believes this legislation lacks merit in both realms and has decided that it will not be supporting it. The fact that the government has not followed through and filed its amendments indicates that it also believes this bill is beyond redemption.

The Hon. A. BRESSINGTON: I will be very brief. I echo the concerns of the Hon. Stephen Wade. I also express my concern about the so-called law and order agenda of the government. As the Hon. Stephen Wade said, this is not about law and order or justice, it is about an economical way to unclog the courts. I attended a four-day conference in Western Australia and heard about the number of wrongful convictions based on: one, a poor system; and, two, the damage that informants can do to a case by giving false evidence against a person who is a suspect and who then goes on to be convicted, and wrongfully so, and that is proven (on average) 19 years after those people have spent time in prison. The system fights all the way against acknowledging or even trying to assist in rectifying those wrongful convictions.

The bill before us, as the Hon. Stephen Wade said, literally turns our system upside down, and there is nothing to base it on. There is no proof, no evidence, to show that this approach is going to be more effective in putting the bad guys away and protecting the public. So, in light of all that—I think I made this perfectly clear in my second reading contribution—I will also be opposing the bill.

Clause passed.

Clauses 2 to 4 passed.

Progress reported; committee to sit again.

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