Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 September 2014.)

The Hon. A.L. McLACHLAN (15:36): I rise to speak to the Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill. I inform the chamber that the Liberal Party will support the second reading of the bill and its passing in this place. I bring to honourable members' attention the comments on this bill articulating the Liberal Party position by the Deputy Leader of the Opposition, the member for Bragg, as well as those of the member for Hartley in the other place. The bill before honourable members seeks to amend the Criminal Law (Sentencing) Act to limit the occasions when a sentence of imprisonment is able to be suspended.

In essence, the bill means that a judicial officer will no longer have the discretion to fully suspend a sentence of imprisonment of two years or more for offences involving serious violence. The bill is specifically aimed at sections 13 and 23 of the Criminal Law Consolidation Act, these being the offences of manslaughter and causing serious harm in circumstances where a sentence of two years or more is imposed for such offending.

In essence, if a court finds someone guilty of causing serious harm and they are sentenced to two years imprisonment, the court will no longer be able to fully suspend that sentence of imprisonment. In this example it would still be open to the court to partially suspend the sentence. However, the defendant would have to spend at least one fifth of the non-parole period in custody.

The chamber should be aware that the amendments contained in the bill have not found favour with the Law Society of South Australia nor with the South Australian Bar Association. I declare that I am a long-standing member of the Law Society. Both bodies have consistently opposed mandatory sentencing on the base that it restricts judicial discretion and independence, which in turn undermines the rule of law. It is also submitted that there is little evidence that such an approach is an effective deterrent and may lead, in certain circumstances, to unfair outcomes.

The approach of these bodies is mirrored by similar bodies in other states. Such opposition to mandatory sentencing should cause all of us in this chamber to pause and reflect. The sentencing of an offender is inherently challenging by its very nature. Our judges must balance a number of sentencing principles, having regard to retribution, rehabilitation, public safety and deterrence. Our community places great trust in our judiciary to take into account all the circumstances of the particular matter, as well as the community standards where appropriate.

There are many Western nations that have passed mandatory sentencing legislation which curtails judicial discretion. Generally it is in response to perceived public demand for more severe sentencing and the need for parliaments and governments to satiate the calls by vocal interest groups demanding greater retribution and deterrence in sentencing.

This bill has its genesis in the Labor Party's policy ahead of the last election. In a press release issued by the Labor Party in the lead-up to the 2014 state election, the Premier stated that if re-elected the Labor government would introduce laws to ensure that all convicted violent offenders would spend time in gaol. He said that new mandatory imprisonment laws would mean that the days of fully suspended sentences for serious violence would be over and that convicted offenders will serve prison time.

At the time I recall there was some public criticism directed at our sentencing system, particularly in cases where time in prison has been avoided by way of suspended sentence. I welcome the comments by the Attorney-General in the other place, who has indicated that it is his intention, if I interpret his comments correctly, to have a more fulsome and holistic review of sentencing in this state. I encourage him to pursue this endeavour. The Liberal Party, likewise, acknowledges community concern relating to suspended sentencing and at the election promised to undertake a broad review of suspended sentencing.

There is a growing school of thought that mandatory sentencing is not effective in reducing crime. There are studies which suggest that the threat of imprisonment only generates a small general deterrent effect and, further, that the public perceptions of the prevalence of crime and the reality are often very distinct. Indeed, there was one survey conducted of jurors regarding the sentence that they would impose on an offender. More than half indicated that they would have imposed a lesser penalty than the trial judge.

All of us in this chamber who seek to understand the voice of the community should always remain cautious that we are only hearing some of the many voices on these important issues. South Australians are entitled to want to reside in a community where they feel safe. They should have confidence in their parliament that it will do all that it can to explore measures that will underpin these community expectations. The punishment of crime is important and necessary to ensure a safe and functional community.

It may be that the way forward is paved with greater investment into research regarding the effects of mandatory sentencing coupled with increased community education, communication of sentencing principles and decisions as well as the encouragement of responsible media reporting. I find this pathway more appealing than the one which may ultimately lead to the ever increasing temptation to strip more and more discretion from our judicial officers. They are, after all, appointed not only for their legal knowledge and integrity but also for their wisdom and experience.

The bill before us does not seek to interfere with the court's right to set the sentence length or determine the portion of the sentence that is to be served in custody. There appears to be only a small number of defendants who will be impacted by these amendments. I note the questions raised in relation to this bill by the Hon. Mr Hood. I, too, ask the government for the anticipated number of matters likely to be affected by these amendments and the associated costs.

In all such debates we should not overlook the need to rehabilitate those of our community whom we punish, in particular those we incarcerate. This was the point well made by the member for Hartley in the other place. In my early days in the law as a defence counsel, I formed the view that rehabilitation is an essential part of ensuring community safety. There is little point to imprisoning offenders only to release them back into the community with little or no hope of integration. In my experience this only leads to greater risk of further offending.

In any such debate on these difficult matters, we should never overlook the importance of mercy. There must always be a place for mercy if the circumstances of a particular case are such that a level of leniency can be justified. This is especially so when it will lead to the reform of the individual. The flexibility of our courts to show mercy where warranted is diminished with mandatory sentencing. Societies are judged not just by their strength and discipline but also their ability to demonstrate compassion and mercy where appropriate.

I will conclude with the words of the great poet and playwright, through his character Portia:

The quality of mercy is not strain'd,

It droppeth as the general rain from the heaven

Upon the place beneath…

The Liberal Party supports the second reading of the bill.

The Hon. T.T. NGO (15:43): I also rise to speak in support of the Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill. As the Hon. Mr McLachlan just outlined, the state government's commitment prior to the state election was that if re-elected it would move to amend the law so that violent offenders who receive a sentence of imprisonment of two years or more would not be able to receive a fully suspended sentence. This bill achieves that aim.

It is important that we move as a legislature in a non-partisan manner to ensure that the law is in step with public expectation. This is what we are elected to do. Critically, the public expects violent offenders who receive a sentence of imprisonment of two years or more see real gaol time. This bill imposes a form of mandatory sentencing that would be appreciated by law-abiding members of our community.

I have been told of a case study, a real-life version of events, which shows just how stark is this need for change. A defendant was found guilty by a jury of causing serious harm with intent to cause serious harm. The maximum penalty for this offence is imprisonment for 20 years. The defendant was drinking with the victim and the victim's partner. The defendant returned with them to their hotel room. The defendant's advances on the victim's partner were rejected and a fight took place between the victim and the defendant. The defendant bit the victim's nose, removing a portion of it. The victim needed cosmetic surgery to repair the injury.

The defendant had eight previous court appearances and had been convicted of two drug offences, a larceny offence and driving offences. The defendant was sentenced to three years with a nonparole period of 18 months. The defendant, however, was only required to spend 18 days in custody and the remainder of the sentence was suspended upon the defendant entering a good behaviour bond of $1,000 for three years. The defendant was also required to be under the supervision of a Community Corrections Officer for 18 months.

This is the type of incident with which the general public is fed up. A message needs to be sent to violent offenders and the community that violent crimes will not be tolerated and that offenders will be sent to prison. The government has a solid track record on issues of law and order, and I am proud to support this second reading.

The Hon. M.C. PARNELL (15:47): The Greens are opposing this bill as we have always opposed what we see as improper interference in judicial sentencing discretion by the executive or by the parliament. It will be no surprise that the Law Society as well has opposed this bill. It has written to members in the strongest possible terms saying that this is bad law. To quote from the society's submission, it states:

The Society has consistently opposed mandatory sentencing. We have yet to see any evidence that mandatory sentencing makes communities safer or deters crime. Instead, it results in increased rates of incarceration in a discriminatory, unfair and unreasoned manner and is a poor use of taxpayers' money. Significantly, mandatory sentencing inevitably leads to unfair and unjust outcomes. Those include a disproportionately unfair impact on indigenous people, young people and those with a mental disability.

I had hoped that my second term in parliament would be full of law-making of a different kind to that of my first eight years. Members will recall that the Hon. Kevin Foley famously wanted to 'rack 'em, pack 'em and stack 'em', and saw great electoral advantage in having a tough-on-crime approach.

That is not the approach that the Greens take. That is not to say that violent criminals do not in very many—in fact, even in most cases—deserve gaol time. The question is whether the parliament is better placed than the judges to make the decision about whether a sentence of incarceration should be fully served or whether it should be fully or party suspended.

The fact of the matter is that we do not sit in court, we do not see the perpetrator, her or his demeanour, we do not hear the witnesses, we do not hear the background story. We know diddly-squat about the facts of the case, and to me that says that we are poorly placed to be trying to direct judges as to how they should sentence.

The appropriate balance between the three arms of government is that the executive puts up legislation, it is debated by the legislature, we debate what we believe are maximum penalties, and we then leave it to the judiciary to apply the law and to apply sentencing criteria and maximum penalties to the facts of each individual case—and it is exactly that approach that this bill seeks to undermine.

I also note, from the Hon. Andrew McLachlan's contribution, that the Attorney-General has said that he is keen to have a review of sentencing. If that is the case, the question then is: why on earth are we debating this now? The Attorney's got form in calling for reviews and then completely ignoring the fact that he has done so and then proceeds to make fundamental changes, either through legislation or through delegated legislation.

The Hon. S.G. Wade: Planning.

The Hon. M.C. PARNELL: The Hon. Stephen Wade is onto me already, and he interjects, 'Planning'. Planning is an excellent example. Having commissioned an expert panel on planning reform, the government then proceeded to fundamentally change the composition of responsibility for planning, through delegated legislation, and it looks to me as if the bill before us is in a similar vein. Yes, let's have a review of sentencing, but that means that we should not be considering bills like this now.The other aspect I want to raise briefly is that there are alternatives to the ongoing, and increasing, incarceration of wrongdoers. To go back to the Law Society's submission, they say:

The Society notes that figures show South Australia's prisons are beyond capacity. South Australia's nine gaols have been absorbing a steady rise in prisoners but now exceed the Correctional Services Department's approved capacity. The Society questions how the Government plans to accommodate the extra prisoners that will result from this Bill. Increasing the capacity of our prisons is expensive and will require additional taxpayer resources. The community is not always better served by incarcerating people.

That reminds me of two things. First of all, it reminds me of the very famous Monty Python sketch from many years ago, where it was declared that the way to reduce the crime rate was to reduce the number of offences—which always struck me as a very odd approach.

The other thing it reminds me of is that those bleeding heart liberals in Texas decided some time ago that they were on this downward spiral of incarceration and upward spiral of expenditure and that they could not afford to keep bigger and bigger gaols to incarcerate their citizens. So they adopted what has become known as the justice reinvestment approach: that the money that would have been spent on gaols they started spending on community programs, on turning lives around before they ended up in the criminal system and, as a result, not only did they end up with less crime and less incarceration but also they saved a bucket load of money by having to build fewer gaols.

That is an approach that people have been talking about for a long time, but there seems to be a failure of will at the highest level. In fact, one of the Thinkers in Residence who was brought out here some time ago, Justice Peggy Hora, reminded us that the people we send to gaol are coming back to us at some stage. They could come back to us better—unlikely because rehabilitation is pretty well non-existent—or they are going to come back to us worse, and we do need to seriously think about how we go about punishing wrongdoers. Again, it is not to say that the perpetrators of these violent crimes do not often deserve gaol time, but that is not a decision for this parliament to make.

The Greens' position is consistent. I am not going to make a long speech about it; I have done that in the past. The Law Society is right, the Bar Association is right. These are bad laws, they should not be on our statute books, and the Greens will be opposing this bill.

The Hon. G.A. KANDELAARS (15:54): I rise to support the Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill 2014. It was a government promise in the 2014 election that serious violent offenders who receive a head sentence of greater than two years would not be able to receive a fully suspended sentence. I stand to support this bill and to assist the government to deliver this election promise.

This bill requires serious violent offenders to spend some time in prison by means of a partially suspended sentence. The two offences that are captured by this bill are manslaughter and cause serious harm, two very serious offences indeed. There is a clear community concern that serious violent offenders, who often cause their victims lifelong injuries, were walking away without spending any time in prison.

The community and the government have no time for violent thugs. By way of example, I am informed that one particular case involved an offender who while intoxicated punched a victim with a closed fist. The victim fell to the ground and the offender continued to assault the victim, inflicting head injuries and a number of facial fractures. This assault left the victim effectively blind in one eye. The offender, following a plea of guilty, was sentenced to two years and three months in prison, with a non-parole period of one year and two months, fully suspended.

I, for one, am not comfortable with the idea that an intoxicated thug acting violently who inflicted life-changing injuries on a victim can walk away without spending any time in prison. Under this legislation, the offender would have spent just under three months in prison. This sentence would serve at least, one hopes, to wake up the offender. They need to get their life in order and refrain from such violent behaviour. The government will continue to fight against serious violent offenders, and I am proud to support this bill.

The Hon. J.A. DARLEY (15:57): I rise very briefly to speak on the Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill. As members would know, the bill amends the Criminal Law Sentencing Act to ensure that serious violent offenders sentenced to a term of imprisonment of longer than two years actually spend time in gaol. The bill defines a serious violent offender as a person who is convicted of manslaughter or causing serious harm. The objectives of the bill are achieved by removing the court's capacity to fully suspend the sentence of imprisonment of any serious violent offender. In instances where the court finds good reason to suspend a sentence that exceeds two years, the court can only impose a partial suspension.

I read with some interest the comments made on this bill by the shadow attorney-general and member for Bragg in the other place. I must say, I was somewhat surprised to learn that, based on the information provided by the government to the opposition, this bill will in fact apply to very few offenders. I understand that, according to government figures, between 2009 and 2012 a total of 42 offenders were found guilty of serious harm or manslaughter. Of those, 23 had a sentence of more than two years suspended, so over a three-year period half of those offenders were let off with a suspended sentence.

I accept completely that in many, if not all, instances the families and friends of the victims of these offenders consider the imposition of a suspended sentence as completely inadequate and a slap in the face in terms of any sense of justice. I am sure we are also all familiar with the notion that violent offenders are all too often getting away with a slap on the wrist, which only serves to further fuel the frustration and angst of victims. In this context, the bill makes perfect sense.

However, if the information provided to the opposition by the government is correct—and I have not received any information firsthand—then the effect of the bill will in fact be very minimal, especially because it applies only to a small group of offenders. The government may, in line with its election policy, be trying to sell this bill as a tough-on-crime approach towards violent thugs, but the reality is somewhat different.

I also have to agree with the member for Bragg that, unless we ensure that offenders are reintegrated into the community with the ability to understand the ramifications of their actions and the suffering that they have inflicted on their victims and with the necessary skills to manage their behaviour in the future, then all we are doing is placing people back in a situation which will inevitably result in a repeat of the same behaviour.

I commend the member for Bragg for raising these very important arguments and areas of reform that I think we all need to be focusing on. Whilst there is often some angst about introducing bills with mandatory sentences for criminal offences, this bill is very limited in its scope. I am willing to consider supporting it on that basis. With that, I support the second reading of the bill.

The Hon. K.L. VINCENT (16:00): I will speak just briefly today on behalf of Dignity for Disability on this particular bill to indicate that we cannot support the second reading of it, but I would like to say thank you to Will Evans from the Attorney-General's office for arranging the briefing that my office received on this particular bill. As with other bills that seek to compel the courts or judges to sentence in a certain way, I oppose mandatory sentencing. We are again consistent in this belief.

I have concerns with legislation that seems to be only a knee-jerk response to community expectation rather than sound research and support from legal bodies such as the Law Society. Instead, in this situation, this bill is not based on interstate or overseas evidence or reform that would suggest that we will be able to deter people from violent offending, nor that they will be rehabilitated by spending 20 per cent (or one fifth) of their non-parole period in custody.

As far as I am aware, there is no evidence to suggest that this will reduce recidivism or help people to rehabilitate. This seems to be a random number picked out of the air, and we need to be very careful about basing our legislation on such evidence. Dignity for Disability is concerned as to how this bill will impact on, say, a female offender who responds violently to a person perpetrating domestic violence against them, just as one example.

Dignity for Disability is further concerned as to how this measure may impact on offenders or alleged offenders with an intellectual disability, who face enough challenges in the justice system as it is. I have mentioned those challenges multiple times in this place so I will not go into them at this time. As has been mentioned previously, we are also very concerned as to how this legislation might affect members of Indigenous and Aboriginal communities.

We have seen this knee-jerk reaction just recently with the government introducing Koda's law, as it was colloquially known, a bill seeking to protect one particular police dog in a way in which police dogs were already covered by existing law under the Animal Welfare Act. We are again very cautious about this knee-jerk reaction. We certainly appreciate that there is a certain community expectation in that area, but we believe that the way to meet that expectation is through sound consultation and proven research, not through a knee-jerk reaction such as this, so I will not support the bill at this time.

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) (16:03): I thank honourable members for their second reading contributions, and I just want to make a few comments before proceeding to the committee stage. I have received some advice in relation to information asked for by the Hon. Kelly Vincent during the briefing session.

I am advised that from 2009 to 2012 there were 24 offenders who received a head sentence of over two years that was fully suspended for the relevant offences of manslaughter and cause serious harm. We were able to assess sentencing remarks for 21 of those individuals. The gender breakdown of offenders was 16 males and five females. Of these, two were convicted of manslaughter, both of whom were women. In both cases, sentencing remarks indicated that domestic violence was a consideration in the sentencing.

It was of major concern that women who are victims of domestic violence could potentially be affected by the reform; however, it must be noted that the judge retains the discretion to determine the length of the sentence and the parole period, and that the limitation of fully suspending a sentence of imprisonment will only be triggered if a sentence of imprisonment is two years or more. I imagine that in those cases, where judges saw fit, given the circumstances, the head sentence given would be less than two years.

If the judge elects to impose a sentence of two years or more, the judge then retains the discretion to set an appropriate non-parole period. The judge then also retains discretion to determine whether good reasons exist to suspend the sentence of imprisonment. If the judge finds good reason to suspend the sentence of imprisonment, the offender is then required to serve 20 per cent of the parole period in prison.

Further, of the individuals, four were Indigenous and 17 were non-Indigenous. Of those offenders, one Indigenous person was convicted of manslaughter and one non-Indigenous person was convicted of manslaughter. We will attempt to deal with any other issues during the committee stage.

In relation to some of the concerns raised by the Hon. Andrew McLachlan as well as the Hon. Mark Parnell, who spoke about the Law Society's claim that this reform represents mandatory sentencing, the government wants it put on record that this bill does not implement a policy of mandatory sentencing. That is quite incorrect. The court retains discretion in sentencing. This reform will result in some offenders serving time who might otherwise have got out of prison and into our community on a fully suspended sentence. These are perpetrators of violent offences; these are the persons we want to spend, and believe should spend, some time in prison. With those concluding remarks, I look forward this being dealt with expeditiously through the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.L. VINCENT: I have just a few questions. Can the minister confirm where that particular 20 per cent gaol term came from, and whether the minister is aware of any research, interstate or internationally, that indicates that that particular gaol period is effective in preventing reoffending?

The Hon. G.E. GAGO: I thank the honourable member for her question. There was no research conducted; it would be hard to imagine what sort of research would be appropriate. It was a judgement call of what was considered to be fair and reasonable and what would provide a reasonable balance. One-fifth was considered to be a fair and reasonable place to set that limit.

The Hon. K.L. VINCENT: When the minister says it is a judgement call, with whom did the government collaborate on that judgement call?

The Hon. G.E. GAGO: I am advised that it is a decision of the Attorney-General, who obviously has input from the Attorney-General's Department, a department full of legal officers, including senior legal officers, who are very much up-to-date with contemporary industry standards and provisions. It was input from that department.

The Hon. K.L. VINCENT: I am sorry, I am just trying to get this straight. The government received feedback from senior legal officers within the department and that particular 20 per cent figure was based on their personal expertise; is that right?

The Hon. G.E. GAGO: Yes. As I outlined, it was really senior legal officers working with the Attorney-General.

The Hon. K.L. VINCENT: The minister referred in her previous answer to the 20 per cent being something like an industry standard. I am a little confused. I personally do not see prisons as an industry. Can the minister elaborate on what she means by 'industry standards'?

The Hon. G.E. GAGO: I was referring to senior legal officers who obviously have a great deal of expertise in working in the area of legal reform and keep abreast of things like recent research on a whole range of matters, including things like sentencing.

The Hon. K.L. VINCENT: I am sorry, I am a bit confused that the minister is saying that this was based on recent research, yet previously she was unable to provide any direction as to what research this particular decision was based on. Since there is no existing equivalent standard used elsewhere, according to the minister's previous answer, how can this be a standard that we are using here?

The Hon. G.E. GAGO: No, that is not what I said. The honourable member has misunderstood. The honourable member asked me to explain what I meant by 'industry' and I explained that it is senior people working in the area of legal reform who keep of breast of relevant matters, such as recent research in a whole range of areas, including sentencing. I indicated in a previous answer that there was no specific research involved in establishing a 20 per cent specific standard; I have already put that clearly on the record and indicated that these other matters were of a general nature.

The Hon. K.L. VINCENT: So, did the government consult with organisations such as OARS or community transitions organisations, the Law Society? There were no community organisations involved in this process, is that correct, but simply legal services within the department?

The Hon. G.E. GAGO: I take it that the honourable member is still referring to consultation in respect of the 20 per cent?

The Hon. K.L. VINCENT: Yes.

The Hon. G.E. GAGO: I have already put on the record quite clearly that it was a matter of judgment of the Attorney-General and his department. There was no consultation outside that directly.

The Hon. K.L. VINCENT: I am trying to ascertain where this information came from. I understand that it came from legal advisers within the department, but surely they must be basing it on something and the minister does not seem to have been able to provide me with exactly where that has come from.

The Hon. G.E. GAGO: I have answered the question quite clearly. I know the honourable member is frustrated that there is not a level of detail beyond this, but I have indicated quite clearly that the 20 per cent was based on a judgement of the Attorney-General, advised by his senior officers. I cannot be more clear than that. The honourable member might not like that, but that is how it was done and it was believed that, through their judgment, it was a fair and reasonable figure to arrive at.

The Hon. K.L. VINCENT: I will try one more time. I find it difficult to believe that with this judgement, albeit coming from, I am sure, very knowledgeable people, no information was provided to the department as to how those officers had reached that judgement. I find that extraordinary.

Clause passed.

Remaining clauses (2 to 6) and title passed.

Bill reported without amendment.

Third 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) (16:18): I move:

That this bill be now read a third time.

The council divided on the third reading:

Ayes 17

Noes 2

Majority 15