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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-06-19 Daily Xml
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Criminal Law (Sentencing) (Character Evidence) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 17 June 2014.)

The Hon. S.G. WADE (15:59): I rise to indicate that the opposition supports the Criminal Law (Sentencing) (Character Evidence) Amendment Bill 2014 and in doing so I note the fact that I do not have carriage of this bill for the Liberal Party overall. The position of shadow attorney-general is now with the member for Bragg in the other place, so I have been fortunate to assume the responsibility of being the shadow minister representing the shadow attorney-general in the other place.

As the honourable member is renowned, she blessed not only the House of Assembly but the whole parliament with a very comprehensive overview of the merits of this legislation but also, as she frequently needs to do, highlighted the tardiness of this government in progressing this issue. One of the leading decisions on which this legislation seeks to respond was in 2002, the case of R v Liddy.

The honourable member also highlighted the tardiness of the government in actually giving credit where credit is due in the sense that the Attorney-General, in his second reading speech, made no acknowledgement of the seminal contribution of people outside the parliament to the development of this as a matter of public policy. Of course I am referring to Ms Nicole Stevens, a postgraduate researcher at the University of South Australia, and her supervisor as I understand it, Professor Freda Briggs, also of that university. Ms Stevens authored a study in relation to sentencing laws. She found that paedophiles were commonly allowed to use their community service and high standing within the community to win reduced sentences in South Australian courts. She referred to people in positions such as priests, court officials, youth workers, teachers and carers.

South Australian law already recognises the particular vulnerability of victims to people in authority in the sense that, for example, our consent laws provide a differentiated range of ages where a person is in a position of authority in relation to another person. Without naming him, I want to recognise the interest of a constituent of mine who contacted me to urge me to support this legislation because he was a victim of child sexual abuse by a person whose relationship to him at that time was a teacher.

He, like us all, would find it abhorrent that that person would benefit from being able to put good character evidence before the court when that position of teacher was actually one of the instruments by which that person accessed him and made him a victim. Ms Stevens called on South Australia to adopt a 2009 New South Wales law that only allows paedophiles to use examples of their past good behaviour as mitigation if they had not used that good character to put victims into an unsafe situation.

This issue was raised early this year and, simultaneously, both the Liberal Party and the Labor Party publicly committed to change the law, so our support today is a reiteration of what is already a public commitment. Having already indicated to the house that within the arrangements of the Liberal Party I am no longer the shadow attorney-general, I want to assure members of the South Australian community and beyond who are victims of crime or who are concerned for victims of crime that I have no intention of stepping back from my staunch advocacy for victims of crime.

I note that my new portfolio, for example, is host to the child protection services which is in fact the primary service to South Australian children who are the victims of crime. I am very proud of the fact that at the last election our party went to the election committing to provide child victims of crime a dedicated and comprehensive victim support service. At the moment the government only funds a victim support service for people over the age of 18 and we as a party felt that, in spite of the fiscally constrained environment in which we live, it was a high priority to make sure that we provide support to the most vulnerable victims amongst those people who are victims of crime. With those few words, I reiterate the opposition's support for this bill and look forward to its speedy passage.

The Hon. D.G.E. HOOD (16:04): I rise to indicate Family First's strong support for the proposed changes to the Criminal Law (Sentencing) Act as presented in this bill. I am sure members would acknowledge that our party has been a proponent for tougher sentencing for specific types of criminals and certainly supports any changes that can be made towards the appropriate sentencing of sex offenders in particular.

Under the current act, the court must have regard to the character, the age, the means and the physical and mental condition of the defendant during sentencing. This bill amends the current provision so that a sentencing court cannot have regard to the so-called good character—good character for sex offenders, that is—or lack of previous convictions for class 1 or class 2 offences where the court is satisfied that the defendant's alleged good character (that is perhaps a better way of putting it) or lack of previous convictions was of assistance to the defendant in the commission of the offence.

The government has provided cases to emphasis its reasoning for implementing this change and I think they are good examples. I would like to briefly discuss those cases as they are most certainly relevant to why Family First believes that these changes are appropriate and, indeed, necessary. Ryan v The Queen involved a priest, a person who held a position of authority obviously and who would have been considered to be of good standing in normal circumstances within the community. However, he was convicted of 14 serious sexual offences against no less than 12 boys aged between six and 14 years. It is a widely-accepted fact that there is a low rate of conviction for sexual offences, despite the best efforts of prosecutors.

Given the nature of the offending, the ages at which people are abused, the resulting medical and emotional conditions, convoluted and often traumatic encounters with the legal system and the time lapse between the offending and the court hearing represent several intervening factors that victims face prior to the judgement of such matters. There is no doubt in my mind that these victims are vulnerable—extremely so—within the operation of our justice system. That is not to say that people within the system intentionally or inadvertently hinder access to justice; it is merely to say that vulnerable people within the justice system faced seemingly insurmountable difficulties at times in securing a conviction against their abuser.

In the case of Ryan v The Queen, Ryan was sentenced to serve 16 years' imprisonment, with a term of imprisonment for previous offences being served concurrently. He appealed against his 16-year sentence to the High Court. The High Court was unable to make a unanimous decision about the use of character evidence in connection with his offending and this certainly signals the gravity of the question we now face in regard to this bill.

However, regardless of the gravity in making this decision, when looking objectively at Ryan's case we see that these 14 serious offences were conducted over a 20-year period. Additionally, we have facts about 39 other alleged offences as well as 20 previous offences for which he had actually been convicted. It is incredible to think that an argument of previous good character could be made in light of these significant offences and the time frame in which these offences allegedly occurred. In fact, I think it is disgraceful that anyone would use the so-called good character argument in order to reduce or mitigate the sentence in some way. Somebody who has a record such as that I do not believe qualifies as good character in any way, shape or form.

The Crown v Liddy also presented a situation where a magistrate, who was also in a position of influence obviously and a position of trust by virtue of his employment as well as his voluntary service in the community, sought to rely on evidence of previous good character again. Again, the court was undecided as to the appropriate use of character evidence in this particular case.

Family First's view is that preventing offenders from relying on this as a mitigating factor in sentencing is in the best interests of the victims who must always come first in these circumstances. As mentioned, victims face a vast range of challenges in securing justice, as I have just outlined. We believe that once an offender has been found guilty they should not have a reduced sentence based on perceived or alleged or claimed good character and that sentencing should be determined by the facts of the case and the facts of the case only. In the case of 20 years of convictions, I think that speaks for itself.

I note there are still significant sentencing considerations on which a judge may rely and this change only rules out the argument of so-called previous good character or lack of conviction in instances where the offender used this to further their offending. We therefore believe that this change provides a suitable balance between appropriate judicial treatment of offenders and victims' rights.

This move is an important step in our criminal law reform. Family First would welcome some open discussion about potentially increasing these provisions to other areas of criminal law. What about not restricting it to just these types of offences, for example? Why would we deem a bank robber who has had previous convictions or 20 years of convictions in some of these cases as being of previous good character, yet that is the sort of rubbish our courts hear.

I have previously spoken of a disturbing case whereby an offender pointed a 10-inch knife in the face of a female service station attendant very late at night—and I have brought this case up in this chamber before. The offender escaped with approximately $500 and immediately attempted to spend that money on the pokies at a local club nearby. In sentencing this case where the attendant's life was clearly in danger, the judge considered his history of allegedly poor mental health and problems with addiction—so he was told—and gave a suspended sentence upon entering into a $500 good behaviour bond for three years, which, coincidentally, was the amount of money he stole.

Furthermore, and I think this extraordinary, the judge in sentencing in this case also noted amongst other things that prior to the hold-up, this offender had 'a fight with his girlfriend'. I fail to see how that is relevant in sentencing considerations and I go so far as to suggest it actually begins to remove any sense of personal responsibility for his actions from the offender rather than implement a situation where the offender might take responsibility for what he did in this case.

I might venture that all of us men have had fights with our girlfriends previously, or wives—as they may be these days—and for the women in the chamber, with their boyfriends or husbands, or whatever it may be, but that does not mean we go out and put a knife to someone's throat. It is inexcusable and they should be dealt with as such. I would suggest that there are certainly many cases such as this one that warrant further inquiry and debate to ensure that sentencing considerations are appropriate and fair to all involved. It simply cannot go on any longer—victims deserve better, and this bill is a step in the right direction. Family First is pleased to support its passage as we believe the changes are reasonable, logical, and indeed, necessary. We welcome any further debate on sentencing considerations as I have earlier suggested.

The Hon. J.A. DARLEY (16:11): I rise very briefly to speak on the Criminal Law (Sentencing) (Character Evidence) Amendment Bill 2014. The bills deals with two issues: the first is the issue of good character in sentencing for child sex offences, and the second rectifies an error in section 20AAC of the Criminal Law (Sentencing) Act 1988.

In relation to the first issue, the bill seeks to make it clear through legislation that the good character or lack of previous convictions of an offender cannot be considered a mitigating factor in cases where that factor assisted the offender in the commission of the offence. Whilst it appears that our courts have not been able to come to a unanimous position on whether or not previous good character ought to be a mitigating factor, I find myself agreeing with the sentiments expressed by His Honour Justice Gray in R v Liddy (2002), that is, 'It does the law no credit to say that, even where the offender used his good name as the means by which to commit his crimes, that fact is mitigating.'

I agree that there ought to be special rules for child sexual offences, and, as such, support this very sensible measure. I am mindful of the fact that it has taken so long to address this issue but I am nevertheless pleased that common sense has finally prevailed. As I understand it, there ought to be no reason for concern in relation to the second aspect of this bill which merely corrects an error in the Criminal Law (Sentencing) Act regarding suspended sentences and firearm offences. That being the case, I am happy to indicate my support for the bill.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (16:13): I thank honourable members for their contributions and their indications of support for the bill and look forward to its speedy passage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. D.G.E. HOOD: Just a question for the minister: I wonder if the minister would like to comment on a remark from the judiciary during sentencing—and I will not specify an individual judge—that the fight with the girlfriend should be considered as mitigating circumstances in determining the sentence for that individual, which I think is appalling.

The Hon. I.K. HUNTER: I tend to refrain from making remarks on judges' sentencing comments, particularly when I am not aware of a particular situation or the case being judged, so I will not take up that invitation of the Hon. Mr Hood.

Clause passed.

Remaining clauses (2 to 5) and title passed.

Bill reported without amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (16:15): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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