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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-03-29 Daily Xml
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CRIMINAL LAW (SENTENCING) (SENTENCING CONSIDERATIONS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 13 March 2012.)

Clause 5.

The Hon. G.E. GAGO: I move:

Page 7, lines 29 and 30 [clause 5, inserted section 10C(2)(d)]—Delete paragraph (d) and substitute:

(d) in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10 per cent.

Page 9—

Lines 27 and 28 [clause 5, inserted section 10D(2)(e)]—Delete paragraph (e) and substitute:

(e) within 7 days immediately following—

(i) an unsuccessful application by or on behalf of the defendant to quash or stay the proceedings; or

(ii) a ruling adverse to the interests of the defendant in the course of a hearing of the proceedings,

determined during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending not less than 5 weeks before the commencement of the trial—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 15 per cent;

(f) in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10 per cent.

Lines 30 and 31 [clause 5, inserted section 10D(3)(a)]—Delete '(a), (b) or (c)'

After line 40 [clause 5, inserted section 10D(3)(b)]—After subparagraph (ii) insert:

(iia) the court did not list the defendant's matter for hearing during that period; or

Line 41 [clause 5, inserted section 10D(3)(b)(iii)]—Delete 'because of reasons' and substitute:

for any other reason

The government rises to support this amendment. The Criminal Law (Sentencing) (Sentencing Considerations) Amendment Bill 2011 is a major reform. It draws on the work and input of many sources and interested parties. The bill provides a comprehensive legislative framework for the provision of a sentencing discount for pleading guilty and/or cooperating with the authorities.

The bill has two main but distinct purposes. First, it is an integral part of the government's ongoing series of linked measures designed to promote efficiency in the criminal courts and to help tackle current court delays by encouraging those offenders who wish to plead guilty to do so at a timely and early stage in the proceedings and not at a really late stage, which is far too common presently, often literally at the doors of the trial.

Secondly, the bill is also an integral part of a series of linked measures the government is presently taking to tackle the very real problems posed by the activities of organised criminal gangs. The bill is intended to encourage offenders, particularly those involved in serious and organised crime, to turn on their erstwhile criminal associates and to assist the authorities in the investigation and prosecution of other offenders and/or other crimes. Such cooperation can and does play a very important role in combating crime, especially the leaders of organised criminal gangs.

The present bill should not be seen in isolation, in the context of either tackling delays in criminal courts or confronting the activities of organised criminal gangs; rather it should be viewed as part of the wider series of linked measures the government is taking in respect of both areas of the bill. The bill strikes the correct balance and ensures that offenders will not receive excessive or unjustifiable discounts in sentence for pleading guilty and/or cooperating with authorities.

I noted at the end of the second reading debate in this house the contributions made by honourable members and the various issues that have been raised in the debate. I can inform the committee that the issues raised in the debate by members have been carefully taken into consideration by the Attorney-General.

There have been extensive and helpful discussions involving the Law Society. The result of these discussions is that the government is intending to move these amendments in the Legislative Council, which I am doing, to clarify aspects of its operation and, in particular, to make it clear that it is not to prejudice defendants who, through no fault on their part, have entered a late plea of guilty. The amendments will provide for a limited discretion to confer a discount for a late plea of guilty in two specific situations.

In brief, these amendments will allow the provision of a discount of up to 15 per cent for a prompt guilty plea in the higher courts following an unsuccessful legal argument and confer a general residual discretion of up to 10 per cent for a late guilty plea in any court if good reason exists. The Law Society has confirmed that these amendments address its main concerns about the original bill.

The original bill was carefully drafted to promote the government's policy to encourage early guilty pleas but not so as to prejudice or disadvantage offenders whose delay in pleading guilty was due to unforeseen circumstances, particularly those circumstances that might be beyond their control. The original bill contains a general exemption allowing any court to confer a discount of up to 30 per cent for a late plea of guilty if the guilty plea was entered at the first practicable opportunity and the reason for the delay was beyond the control of the defendant. It was always considered that this provision was adequate to protect the position of the defendant who pleaded guilty late in the proceedings through no fault of his or her own. However, to dispel any lingering concerns, the government amendments are intended to make the operation of the bill entirely clear and to put the situation beyond doubt.

The government amendments represent a sensible model that both addresses the concerns that have been expressed but leaves intact the substance and rationale of the bill. Furthermore, contrary to the recent assertions of the Hon. Stephen Wade, the bill should not result in the granting of excessive or unduly lenient sentences for offenders. The figures for the maximum discounts in the bill for pleading guilty or providing normal or exceptional cooperation to the authorities are consistent with existing common law guidelines. Indeed, by preventing a court, in the absence of some good reason, from treating a belated guilty plea on the doors of the trial in the same way as a prompt and early guilty plea, the bill will help prevent the granting of excessive discounts for late pleas of guilty.

Turning to the particular amendments. The first amendment confers on any criminal court a residual discretion, in limited circumstances, to provide a discount in sentence of up to 10 per cent if it is satisfied that a good reason exists for the delay in pleading guilty. The government accepts in certain circumstances that, despite the late guilty plea, there is merit in a residual discretion for a late plea if good reason exists to avoid an unnecessary trial, especially in cases such as a sexual case and/or one involving a vulnerable witness.

This residual discretion will only apply once any other discretion in the bill, including the 15.5 discount to be conferred by the next government amendment, for conferring a discount for a late plea of guilty has been considered and discounted. It is truly a residual discretion. The residual discretion will be available in both the Magistrate's Court and the District and Supreme Courts. A good reason is deliberately not defined. It will depend upon the good sense and discretion of the court in each particular case.

The committee divided on the amendment:

AYES (9)
Brokenshire, R.L. Darley, J.A. Finnigan, B.V.
Gago, G.E. (teller) Gazzola, J.M. Hood, D.G.E.
Hunter, I.K. Kandelaars, G.A. Wortley, R.P.
NOES (10)
Dawkins, J.S.L. Franks, T.A. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Parnell, M.
Ridgway, D.W. Stephens, T.J. Vincent, K.L.
Wade, S.G. (teller)
PAIRS (2)
Zollo, C. Bressington, A.

Majority of 1 for the noes.

Amendment thus negatived.

The Hon. G.E. GAGO: I move:

Page 9, lines 27 and 28 [clause 5, inserted section 10D(2)(e)]—

Delete paragraph (e) and substitute:

(e) within 7 days immediately following—

(i) an unsuccessful application by or on behalf of the defendant to quash or stay the proceedings; or

(ii) a ruling adverse to the interests of the defendant in the course of a hearing of the proceedings,

determined during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending not less than 5 weeks before the commencement of the trial—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 15%;

(f) in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.

The Attorney-General has explained that he has taken into consideration the views raised by honourable members. This amendment provides for the provision of the discretion to confer a discount of up to 15 per cent for a guilty plea in the District or Supreme Court in the period of seven days following an unsuccessful legal argument by the defendant. It is not intended that this discretion will arise with respect to a guilty plea following a frivolous or untenable legal argument put on behalf of the defendant.

However, the defendant may have a valid legal argument to raise, such as that vital piece of evidence such as an incriminating confession or the result of a search should be excluded but be nevertheless perfectly willing to plead guilty without any further delay if the legal argument is rejected by the court. This amendment therefore provides that, if a defendant pleads guilty within seven days immediately following an unsuccessful application by or on behalf of the defendant to quash or stay proceedings or a ruling adverse to the interests of the defendant in the course of a hearing of proceedings, then the defendant can still receive a discount of up to 15 per cent.

The ACTING CHAIR (Hon. J.S.L. Dawkins): Order! There is too much conversation in the chamber and I am having difficulty hearing the minister.

The Hon. G.E. GAGO: To assist with the alternative court listing arrangements and to minimise the stress and inconvenience to all of the parties and witnesses in the proceedings, the guilty plea would have to be entered after committal and at least five weeks before the first date set down for the commencement of the trial at the District or Supreme Courts. This timing is dependent on the court listing the defendant's case for a legal argument during the period in question, as government amendment No. 4 clarifies.

The phrase 'commencement of the trial' is already well understood (see R v Wagner (1993) 68 A Crim R 81 and Attorney-General's Reference (No.1 of 1988)), etc. Though court listing practices are clearly an issue for the Chief Judge, the Chief Justice and the Courts Administration Authority, it is hoped that this provision will encourage the parties in the proceedings to identify issues in dispute well in advance of the trial and the court to list pre-trial legal argument significantly in advance of the trial date rather than leaving them to the morning or day before the jury is empanelled.

The introduction of binding rulings in the courts Statutes Amendment (Courts Efficiency Reforms) Bill should help provide the support for listing legal arguments significantly in advance of trial. At this stage this 15 per cent discount is confined to proceedings before the District and Supreme Courts and it is unnecessary to include this discount at the Magistrate's Court, given the different nature of cases and listing pressures and practices in that court. We did see the first amendment as a test amendment and the government, although keen to get its position clearly on the record, will not divide.

The Hon. S.G. WADE: In relation to an absence of presence, I owe both the President and the council an apology for not being prompt enough in receiving the call. I appreciate that it was my tardiness and not the chair's. If I might have the latitude of the council to indicate the basis on which we oppose not only this amendment but also the previous amendment, the government is certainly correct in suggesting that the amendments it is putting before this house today will improve what was a clearly flawed bill. I do not agree with the comments of the minister that it addresses all the issues raised in the second reading contributions of members.

I will not take more than a minute to remind members that in my clause 1 contribution I reminded the council that the concerns of Family First in relation to legal aid, the concerns of the Hon. Kelly Vincent in relation to undermining a defendant's rights, the concerns of the Hon. Mark Parnell in relation to unnecessary codification of the common law, the concerns of Ann Bressington about not improving the law and undermining the justice system—none of those issues are addressed by the government's amendments.

As I indicated in my clause 1 contribution on 13 March, the opposition's view is that not only does the government fail in its amendments to deal with the other issues raised in the debate, but, in effect, the government has actually reduced the incentive by, if you like, softening the no-discount period. It actually decreases the possibility that the government will achieve the objective of dealing with its courts backlog through this measure. As I indicated in my second reading contribution, this is fundamentally not a bill about justice: it is about a government that is failing to properly manage our court system.

We are certainly very concerned about the general increase in discounts offered under this legislation. We are also particularly concerned about the uncapped nature of the discounts for cooperation with authorities—what the Attorney-General called 'get out of gaol free cards'. Perhaps I could summarise that by saying that, because the bill is actually, in terms of its case management task, weakened by the government's amendments and the other concerns of honourable members have not been addressed, the opposition, as I indicated in clause 1, will not be supporting the bill and it will also not be supporting amendments to the bill.

In terms of going forward, we note that we have on the Notice Paper the Statutes Amendment (Serious and Organised Crime) Bill and I presume committee stages of that bill will be part of the work we do next week. That bill is already dealing with sentence discounts for cooperation with authorities so, if this council is not supportive of this bill, I would suggest to the government that there is an opportunity in the context of that bill to explore issues in relation to sentence discounts for cooperation with authorities. As I have indicated at the second reading stage and a number of other places, we are particularly concerned about the uncapped nature of those discounts and believe that would certainly need further work before changes were made in the law in that area.

The Hon. M. PARNELL: I will take the opportunity as well now to put the Greens' position in relation to these amendments on the record. I made a second reading contribution in relation to this bill last year on 29 September and I will not repeat the things that I said then. In summary, we were unhappy with the bill and we did not believe that it warranted support, although we supported the second reading in the hope that some changes could be made.

The changes that the government has now put forward with these amendments are not sufficient to make what is an unacceptable bill to us acceptable, so we will not be supporting the amendments. We did spend a fair bit of time considering a range of amendments that the Liberal Party had canvassed at one stage but, now that they will not be moved and now that we are not convinced that the Labor amendments sufficiently fix up this bill, we will be opposing the whole bill. To avoid any mucking around, we will be opposing all the amendments as well. So, this is an invitation to the government to go back to the drawing board.

The Hon. D.G.E. HOOD: As has been alluded to, I made a contribution at the second reading stage of this bill and I outlined a number of concerns Family First had with this bill as it stood at that time, some of which have been addressed by the government's amendments, and that is pleasing, but some have not. However, on balance, we will support the bill. I indicated that at the second reading and that continues to be our position.

I will not disclose our position on the amendments except to say that we generally view them favourably. Some of the concerns I outlined in my second reading speech have been addressed by some of the amendments proposed and we will consider them on merit as the debate continues.

The Hon. K.L. VINCENT: Just to aid the proceedings of the council, I understand what the government is attempting to achieve with these amendments; however, my opposition to this bill as a whole remains and for that reason I will be opposing the amendments.

Amendment negatived.

The ACTING CHAIR (Hon. J.S.L. Dawkins): The next amendment we move to is in the name of the minister, [Gago-1]...3, clause 5, page 9, lines 30 and 31. I call the minister.

The Hon. G.E. GAGO: It is a consequential amendment to amendments Nos 1 and 2 and, given that both 1 and 2 have failed, I will withdraw it.

The ACTING CHAIR (Hon. J.S.L. Dawkins): And equally amendment No. 4? The minister is not going to move that one?

The Hon. G.E. GAGO: That is consequential as well, as is No. 5.

The ACTING CHAIR (Hon. J.S.L. Dawkins): And amendment No. 5 the same way.

Clause passed.

Clause 6 passed.

Schedule 1.

The Hon. G.E. GAGO: I move:

Page 11—

Line 1—Heading to schedule 1—delete 'provision' and insert:

and review provisions

After line 5—Insert:

2—Inquiry into and report on operation of reduction of sentence scheme

(1) The minister must, at the end of 2 years from the commencement of section 5 of this act, appoint a person recommended by the Chief Justice of the Supreme Court, to conduct an inquiry into—

(a) the operation of part 2 division 2 of the Criminal Law (Sentencing) Act 1988 as amended by section 5 of this act; and

(b) report on the effect (if any) the operation of the division as amended has had on—

(i) providing transparency in respect of sentences given to offenders; and

(ii) improving the operation and effectiveness of the criminal justice system.

(2) A report on the inquiry must be provided to the minister who must cause a copy of the report to be laid before each house of parliament within 3 months after receipt of the report.

My amendment No. 6, relating to the heading of the schedule, is consequential on my amendment No. 7, which provides a scheme to review the effects of this bill after a period of two years of operation

The bill, as I said, is a major reform and it is appropriate to provide a means of oversight. At the end of two years after the commencement of the new law, to evaluate its effect a suitable person recommended by the Chief Justice will be appointed by the relevant minister to conduct an inquiry into the operation of the new law. The inquiry will specifically look at the transparency of the act with respect to sentences given to defendants and the effect of the act in improving the operation and effectiveness of the criminal justice system. These amendments are based on the system being used interstate to assess the effectiveness of major new legislative reforms.

The Hon. D.G.E. HOOD: This is something we would certainly support. As I said, some of the concerns have been addressed by the amendments there, particularly with respect to the issue with legal aid, but also other things that were mentioned in my second reading contribution that were in a sense relatively minor. Nonetheless, a review will at least provide some sort of assessment of their success.

Amendments negatived; schedule passed.

Title passed.

Bill reported without amendment.

Third 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) (12:39): I move:

That this bill be now read a third time.

I would like to make a very brief third reading contribution. I would like to make sure that the record reflects that the government believes that it is, indeed, most unfortunate that this bill has been defeated. A great deal of effort and preparation has gone into this over several years. It draws on the very considered input of many interested parties within the criminal justice system. I think it is, in fact, a bit rich that the opposition talks about improving the effectiveness of the criminal courts, alleviating the pressures of the criminal justice system and tackling the very real problems posed by organised gangs of criminals when all it does is seemingly oppose everything concrete that the government comes up with to try to address these very serious issues of concern which contain very serious potential threats to the public.

The opposition is simply all talk. Whenever the government makes a move to legislate to try to improve the effectiveness of the criminal courts, to tackle delays, especially for victims, to maximise the use of prosecutors' time and minimise the amount of time defendants have to frustrate the system, the opposition comes up with new and imaginative ways to oppose whatever the government is proposing. I think the opposition has been highly irresponsible in its attitude to this bill and it is truly a case of opposition for its own sake.

The council divided on the third reading:

AYES (8)
Brokenshire, R.L. Darley, J.A. Finnigan, B.V.
Gago, G.E. (teller) Gazzola, J.M. Hood, D.G.E.
Hunter, I.K. Wortley, R.P.
NOES (9)
Dawkins, J.S.L. Franks, T.A. Lee, J.S.
Lucas, R.I. Parnell, M. Ridgway, D.W.
Stephens, T.J. Vincent, K.L. Wade, S.G. (teller)
PAIRS (4)
Kandelaars, G.A. Lensink, J.M.A.
Zollo, C. Bressington, A.

Majority of 1 for the noes.

Third reading thus negatived.

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