Criminal Law (Sentencing) (Character Evidence) Amendment Bill

Second Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (17:28): I move:

That this bill be now read a second time.

Good Character in Sentencing for Child Sex Offences

Section 10(1) of the Criminal Law (Sentencing) Act 1988 says that:

In determining the sentence for an offence, a court must have regard to such of the following factors and principles as may be relevant: … (l) the character, antecedents, age, means and physical or mental condition of the defendant…

This reflects the common law. The authoritative discussion of the principle involved is contained in the judgement of the High Court in Ryan v The Queen [2001] HCA 21; (2001) 75 ALJR 815. That was an appeal against sentence by a former priest who had been convicted of 14 serious sexual offences against 12 young boys aged between six and 14 years and had asked the sentencing judge to take into account 39 additional offences. The offences had occurred over a period of 20 years. He had otherwise been a person of good character. He was sentenced to imprisonment for 16 years. Earlier he had been convicted of 20 similar offences against a number of victims and had been sentenced to imprisonment for six years. It was ordered that the two sentences be served cumulatively. The appeal to the High Court was against the sentence of 16 years.

In the course of that case, the High Court was asked to rule on the relevance of evidence of prior good character in mitigation of sentence for such offences. The court was divided. Callinan and Kirby JJ thought that evidence of previous good character was relevant in mitigation when sentencing for offences of this kind, whereas Hayne J and others disagreed. There was, therefore, no majority position on this issue.

The leading South Australian decision on point is R v Liddy [2002] SASC 306. This was an appeal against sentence for child sexual offences committed by a magistrate who took opportunities presented by his office and by his volunteer work in lifesaving by young people to commit a series of sexual offences against children over a period of many years.

He was eventually sentenced to imprisonment for 25 years with a non-parole period of 18 years upon his having been found guilty by a jury of six counts of unlawful sexual intercourse with a person under the age of 12 years, three counts of indecent assault and one count of offering a benefit to a witness. He appealed against the sentence. One of the grounds relied upon was the failure to take into account, or sufficient account, evidence of previous good character. Again, there was not an unanimous view. Mullighan J said:

There is no clear statement by three members of the Court in Ryan that otherwise good character should usually operate in mitigation. Obviously there are clear cases where it could reduce a sentence, however in cases such as the present case I do not think this matter is of much significance. The appellant used his otherwise good character and his position of trust and prominence in the community to gain the confidence of the parents of the boys and, indeed of the boys themselves, which is a matter of aggravation. The fact that he had otherwise lived his life without offending and had made positive contributions to the community is a matter in his favour but, in all the circumstances, does not justify a reduction in the sentence.

However, Gray J said:

In re-sentencing the appellant a relevant consideration includes the need for some credit to be given for his previous good works and his prior good character and reputation. However any credit arising from these matters must be measured against the use of his position as a surf lifesaving coach and his office as a magistrate as instruments to effect his criminal purposes. In the particular circumstances of this case only limited credit can be afforded.

There continues to be a difference of opinion on the point. This ambiguity in authority is used as leverage by defence counsel making sentencing submission in mitigation of child sexual offences. I am of the opinion that the matter needs to be cleared up, that there needs to be a statement that the law does not regard previous good character to be mitigating in certain cases, and that the operative principle should be one that Mullighan and Gray JJ agree about, that there is no mitigation where the offender has used his good character or good works as a mask or tool by which to access or control his victims. It does the law no credit to say that, even where the offender has used his good name as the means by which to commit his crimes, that fact is mitigating. In my view, it is at best neutral, at worst, an aggravating factor.

New South Wales has legislated to this effect. Section 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 says:

(5A)—Special rules for child sexual offences

In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

At the 2014 election, Labor pledged to enact this provision in South Australia. This bill fulfils that pledge.

In relation to correcting an error, section 20AAC of the Criminal Law (Sentencing) Act 1988 says (emphasis added):

20AAC—Sentence of imprisonment not to be suspended

(1) Subject to subsection (2), but despite any other provision of this act or any other act or law, the following provisions apply in relation to the sentencing of a person who is a serious firearm offender for a serious firearm offence (including where the offence is the serious firearm offence that resulted in the person being a serious firearm offender):

(a) if the maximum penalty for the serious firearm offence includes a period of imprisonment—a sentence of imprisonment must be imposed on the person;

(b) the sentence of imprisonment cannot be suspended;

(c) section 18 does not apply in respect of the sentencing of the person;

(d) if—

(i) the person is also being sentenced in respect of other offences; and

(ii) 1 or more of those offences are not serious firearm offences,

section 18A does not apply to the sentencing of the person in respect of the serious firearm offence (however nothing in this paragraph affects the operation of section 18A in respect of the other offences).

(2) A court sentencing a person who is a serious firearm offender for a serious firearm offence may declare that subsection (1)(b) does not apply to the person if he or she satisfies the court, by evidence given on oath, that—

(a) his or her personal circumstances are so exceptional as to outweigh the primary policy of the criminal law in respect of firearms offences set out in section 10(3a); and

(b) it is, in all the circumstances, appropriate to suspend the sentence.

The issue concerning section 20AAC(2)(a) is that section 10(3a) of the act no longer exists.

Section 10(3a) previously stated that: 'A primary policy of the criminal law in relation to offences involving firearms is to emphasise public safety by ensuring that, in any sentence for such an offence, paramount consideration is given to the need for deterrence.'

Section 10(3a) was replaced by section 10(2)(e).

Section 10(2)(e) states that in determining the sentence for an offence, a court must give proper effect to the following:

(e) in the case of an offence involving a firearm—the need to protect the safety of the community by ensuring that paramount consideration is given to the need for general and personal deterrence.

Section 20AAC(2)(a) should be amended to delete the reference to section 10(3a) and replace it with a reference to section 10(2)(e) and in addition, to adopt the wording in that section.

I commend the bill to members. I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

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 10—Sentencing considerations

This clause amends section 10 to provide that a sentencing court is not to have regard to the good character or lack of previous convictions of the offender if the offence is a class 1 or class 2 offence (within the meaning of the Child Sex Offenders Registration Act 2006) and the court is satisfied that the alleged good character or lack of previous convictions assisted the defendant to commit the offence.

5—Amendment of section 20AAC—Sentence of imprisonment not to be suspended

This clause corrects an incorrect cross reference.

Debate adjourned on motion of Hon. K.J. Maher.

At 17:36 the council adjourned until Wednesday 18 June 2014 at 14:15.