Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill

Second 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) (17:30): 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.

During the 2014 election, the Government announced that reckless violent thugs who receive a sentence of imprisonment of two years or more would not be able to receive a fully suspended sentence.

The Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill 2014 (the Bill) amends the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) to ensure that any serious violent offender (being a person who is convicted of manslaughter or causing serious harm) who is sentenced to a term of imprisonment of longer than two years, spends time behind bars. To achieve this, the Bill removes the capacity of a court to fully suspend the sentence of any such offender. The Bill amends the Sentencing Act such that, when an adult is convicted of manslaughter or causing serious harm and is sentenced to two years or more imprisonment, if the court finds good reason to suspend the sentence, the sentencing court can only partially suspend the sentence.

The aim of this reform is to restrict the ability of a sentencing court to wholly suspend a sentence of imprisonment and to ensure that serious violent offenders in receipt of a sentence of imprisonment of two years or more actually serve some time in prison.

This reform applies to persons who are convicted of causing serious harm contrary to section 23 of the Criminal Law Consolidation Act 1935 (the CLC Act). Section 23 provides as follows:

23—Causing serious harm

(1) A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.

Maximum Penalty:

(a) for a basic offence—imprisonment for 20 years;

(b) for an aggravated offence—imprisonment for 25 years.

(2) If, however, the victim in a particular case suffers such serious harm that a penalty exceeding the maximum prescribed in subsection (1) is warranted, the court may, on application by the Director of Public Prosecutions, impose a penalty exceeding the prescribed maximum.

(3) A person who causes serious harm to another, and is reckless in doing so, is guilty of an offence.

Maximum Penalty:

(a) for a basic offence—imprisonment for 15 years;

(b) for an aggravated offence—imprisonment for 19 years.

This reform also applies to persons who are convicted of manslaughter contrary to section 13 of the CLC Act. Section 13 provides as follows:

(1) Any person who is convicted of manslaughter shall be liable to be imprisoned for life or to pay such fine as the court awards or to both such imprisonment and fine.

The amendments to the Sentencing Act made by the Bill provide that, if a sentence of imprisonment of two years or greater is imposed on a person convicted of an offence against section 13 (manslaughter) or section 23 (cause serious harm) of the CLC Act, then the sentencing court cannot fully suspend that sentence of imprisonment. If the sentencing court finds good reason to suspend, the only option available to the sentencing court is to partially suspend the sentence of imprisonment.

The Bill also provides that section 18A of the Sentencing Act cannot be applied when sentencing a person for the offences of manslaughter and causing serious harm. Section 18A provides that, if a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences. However, in doing so, the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.

The amendment means that, if a court is sentencing a person for numerous offences, including manslaughter or causing serious harm, and if the court is minded to use section 18A, then, in order to maintain the policy of the Bill, section 18A may not be used in such a way as to wholly suspend the entire sentence but the court must nominate a single penalty for the offences of causing serious harm or manslaughter, but may provide for a single section 18A penalty for the other offences combined in whole or in part.

Under this reform, the current sentencing process is mainly undisturbed in that the court must first decide on an appropriate sentence and, secondly, decide on an appropriate non-parole period (if any).

If a sentence of imprisonment is imposed, the sentencing court considers whether good reasons exist to suspend the sentence. If the court finds good reason to suspend, if the sentence of imprisonment is greater than two years, and if the conviction is for either manslaughter or cause serious harm, then the only option available to the court will be to partially suspend the sentence.

Under the Bill, if the court finds good reason to suspend the sentence of imprisonment, then the defendant must serve in prison a period that is 20% (one-fifth) of the non-parole period. This specified period of time that must be served in prison replaces the current fully suspended sentence that would see offenders spend no time at all in prison.

If the partially suspended sentence is revoked on breach of a bond, and an order is made that the suspended portion of the sentence be carried into effect, the existing provisions in the Sentencing Act concerning non-parole periods again come into operation and, in addition, the court may also order that any time served be taken into account when fixing the non-parole period.

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 18A—Sentencing for multiple offenders

Currently, this section allows for a court to sentence a person who is found guilty of a number of offences to the 1 penalty for all or some of the offences. It is proposed to amend the section so as to exclude from any such global sentence the sentence for a prescribed designated offence (within the meaning of section 38).

5—Amendment of section 38—Suspension of imprisonment on defendant entering into bond

The amendments to section 38 involve some restructuring of certain provisions in the section. The changes implemented by the amendments involve providing that a defendant sentenced as an adult to imprisonment of 2 years or more for a prescribed designated offence cannot have that sentence suspended. Provision is also made (in new section 38(2b)) for the sentencing court to partially suspend the sentence of such a defendant.

6—Amendment of section 58—Orders that court may make on breach of bond

The amendments to section 58 relate to the proposed amendment to section 38(2b). The first amendment provides that where a court revokes the suspension of a sentence of imprisonment, in the case of a probationer whose sentence of imprisonment was partially suspended under section 38(2b), the court may fix or extend a non-parole period, even if the term of the sentence now to be served in custody is less than 1 year, taking into account the time spent in custody by the probationer before being released on the bond.

The amendment to subsection (4)(c) clarifies, in relation to a probationer whose sentence was partially suspended under section 38(2a) or (2b), that a court revoking the suspension may direct that any part of the sentence that the probationer has not served in custody be cumulative on any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.

Debate adjourned on motion of Hon. I.K. Hunter.

At 17:31 the council adjourned until Wednesday 17 September 2014 at 14:15.