Parliamentary Committees

Social Development Committee: Recidivist Young Offenders and Youth Parole Board Act Review

The Hon. G.A. KANDELAARS (16:41): I move:

That the report of the committee on its review of the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act 2009 be noted.

The Social Development Committee commenced its inquiry in August 2014. We received a total number of seven submissions and the SA Police presented verbal evidence. Hearings were concluded on 13 October 2014. In part 5 of the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act 2009 there is a significant requirement that the Social Development Committee, in consultation with the Attorney-General, inquire into and report on the operation of the act and on the effect the operation of the act has had on the criminal justice system in South Australia.

In 2003, amendments were made to the Criminal Law (Sentencing) Act to provide South Australian courts with the discretion to declare an adult offender to be a serious repeat offender. The introduction of the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act allows for this same principle and provides South Australian courts with discretionary power to declare a young offender to be a recidivist young offender.

The act came into operation on 27 June 2010. It was initiated as a response to perceived community concerns about the harm done by young offenders who engaged in repeat offending of a serious nature, to consider community safety in sentencing and to allow young offenders to be tried as adults where a pattern of serious repeat offending was alleged to have occurred. It was intended to apply to a small number of particularly serious repeat young offenders who seemingly refused to learn from previous experiences within the youth criminal justice system.

The act made amendments to both the Criminal Law (Sentencing) Act and the Young Offenders Act. The key changes to the Criminal Law (Sentencing) Act are:

the provision to declare a young person a recidivist young offender;

a provision for judicial discretion to make such a declaration;

that the court is not bound by the rule of proportional sentencing; and

a nonparole period that is handed down must be at least four-fifths of the sentencing period and not at least two-thirds, as it is under the provisions of the Young Offenders Act.

The key changes to the Young Offenders Act are:

a provision to establish a victims register;

a provision to keep a register of informal cautions (a provision that did not previously exist);

a provision to impose a custodial sentence where there has been a declaration of a recidivist young offender; and

a provision for the review board to be reconstituted as the youth parole board.

During the four years of operation of the act, six offenders were eligible to be declared a recidivist young offender. Of these, four were brought before the Youth Court and, of those, three had been declared recidivist young offenders.

A number of submissions the committee received proposed that, given the small number of declarations, the operation of the act and its effect on the criminal justice system has been minimal, because the legislation mirrors provisions that were already addressed in the existing legislation. Under pre-existing legislation, the Youth Court has jurisdiction to sentence young offenders to a term of incarceration of up to three years. All three of the young people who had been declared recidivist young offenders were sentenced to terms of incarceration well within the three-year maximum period. This may indicate that the introduction of the amendments has not meaningfully impacted on substantive sentences imposed upon serious repeat offenders.

The committee heard from SA Police that judicial discretion is a significant hurdle for the declaration under the Criminal Law (Sentencing) Act. It holds the view that any young offender who satisfies the criteria under the act should automatically be declared to be a recidivist young offender. SA Police proposes that judicial discretion, as opposed to mandatory requirements, presented a significant hurdle. This position was not agreed by the committee.

The provision in the amended act to increase sentencing periods for young people is based upon the notion of providing increased community safety. The premise has been that while a young person is incarcerated they are not able to commit any further crime. It is not clear that current evidence-based research supports that view. Some evidence presented to the committee suggested that introducing explicit measures to declare a young person a recidivist offender, imposing longer sentences and longer periods of incarceration, by extending the period of time they are eligible for conditional release, may be counterproductive measures.

Young people who spend longer periods in detention may become more entrenched in offending and find community integration increasingly challenging. Further, it is unclear if evidence-based research supports the view that more punitive measures for young people who offend will increase community safety. Regardless, provisions already existed under section 16 of the Young Offenders Act for the Director of Public Prosecutions to bypass the Youth Court and lay charges against a young person in the adult jurisdiction if the charge were a substantial indictable offence or there was an appreciable risk to the safety of the community.

The object of the Young Offenders Act is to secure care, correction and guidance for young people who commit offences. Clearly, this must be balanced against the need for them to understand their obligations under the law and the fact that the community should be protected against violent or wrongful acts. Insofar as the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act was aimed at personal deterrence of serious repeat offenders, and protecting the public from them, the committee heard that those provisions appear to have been available in existing legislation. Whilst the provisions in the act strengthen the requirement for the consideration of community safety, they are silent on how a stronger emphasis for rehabilitation might be achieved.

In the four years since the introduction of the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act, there have been only three declarations of young people as a recidivist young offender. All three were sentenced to terms of detention well within the three-year prescribed maximum in pre-existing legislation. Therefore, the recidivist young offender legislation has not significantly impacted upon the substantive sentences imposed upon serious repeat offenders to date.

Based on evidence presented during the course of deliberation, the committee considered that the operation of the act, which was intended to be directed at a small number of offenders who refused to learn from their experience, has been minimal to date and its effect on the South Australian criminal justice system has also been minimal. Given this conclusion, the committee recommends a further review be conducted three years from now.

I would like to acknowledge the valuable contributions of individuals and organisations who gave up their time to forward and give information to the committee. We thank all those who presented evidence to this inquiry, either in writing or by appearing before the committee.

In conclusion, I take this opportunity to thank members from the other place who provided valuable input into the inquiry: Ms Dana Wortley, member for Torrens, Ms Katrine Hildyard, member for Reynell and Mr Adrian Pederick, member for Hammond. From this chamber I would like to thank the Hon. Kelly Vincent and the Hon. Jing Lee. I would also like to acknowledge the work of the committee's secretariat: the committee's secretary, Ms Robyn Schutte, and the committee's research officer, Ms Carmel O'Connell, who provide invaluable support to the work of the committee. Thank you, Mr President.

The Hon. J.S. LEE (16:51): I rise to speak as the opposition member on the Social Development Committee to endorse the final report tabled by the Hon. Gerry Kandelaars into the review of the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act 2009. As honourable members would know, in South Australia criminal law applies to all people 10 years of age and above who commit breaches of law. Young people between the ages of 10 and 18 who are suspected of committing a criminal offence are dealt with under youth justice statute.

The youth justice system in South Australia comprises a number of agencies with distinct but interrelated functions. They are: SA Police, Courts Administration Authority, Youth Court and Department for Communities and Social Inclusion, Youth Justice. No single piece of legislation regulates juvenile justice in South Australia. Some legislation applies to young people only, while other legislation applies to both young people and adults. The key pieces of legislation concerning youth justice matters are: the Young Offenders Act 1993, the Youth Court Act 1993, the Family and Community Services Act 1972, the Criminal Law (Sentencing) Act 1988 and the Bail Act 1985.

In 2003, amendments were made to the Criminal Law (Sentencing) Act 1988 to provide courts with discretionary powers to declare an adult offender to be a serious repeat offender. The introduction of part 3 of the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act allows for this same principle and provides courts with the discretionary power to declare a young offender a recidivist young offender, as mentioned by the Hon. Mr Kandelaars earlier.

The Statutes Amendment (Recidivist Young Offenders and Youth Parole Board) Act 2009 came into operation on 27 June 2010. The act was intended to apply to a small group of particularly serious repeat young offenders who seemingly refuse to learn from previous experience within the youth criminal justice system. It enables the courts to judge young offenders as adults where a pattern of serious repeat offending is alleged to have occurred.

Under part 5 of the act, the Social Development Committee has been tasked to inquire into the operation of parts 3 and 4 and to provide a report on the current operational status of the act and if it has had any impact on South Australia's criminal justice system. The act allows young repeat offenders to be tried as adults especially when they have a strong history of recurring serious offending.

In addition to the sentencing of recidivist young offenders, the act was established to deter serious offenders from committing wrongdoings, as well as protecting the public from such crimes. From August to October this year, the committee received a total of seven submissions from important stakeholders. I would like to thank the individuals and organisations for their valuable contributions to the inquiry. The key findings presented to the committee include:

applying the same legal process to adults and young people alike, when young people are developmentally less capable than their adult counterparts, equates to a harsher application of the law;

introducing explicit measures to declare a young person a recidivist young offender and imposing longer sentences and a longer period of incarceration by extending the period of time they are eligible for parole/conditional release may be a counterproductive measure;

young people who spend longer periods in detention may become more entrenched in offending and find community integration increasingly challenging; and

it is unclear if evidence-based research supports the view that more punitive measures for young people who offend will increase community safety.

In the last four years since the introduction of the act, there have only been three declarations of young people as recidivist young offenders. All three were sentenced to terms of detention well within the three-year maximum prescribed in pre-existing legislation, namely the Young Offenders Act 1993. During the review, it was found that the legislation imposed by the act has not significantly impacted upon the sentencing imposed on serious repeat offenders. Based on the information provided to the committee by witnesses, we concluded that further review of the act will be conducted in three years' time.

The Social Development Committee has been very productive this year. I would like to acknowledge the work and contributions of the Presiding Member of the committee (Hon. Gerry Kandelaars), the Hon. Kelly Vincent in this house and, from the other place, Mr Adrian Pederick MP, Ms Katrine Hildyard MP and Ms Dana Wortley MP. I would also take this opportunity to thank the hardworking secretary, Robyn Schutte, and Ms Carmel O'Connell, the committee's research officer, for their professional and valuable support throughout the year. I am pleased to support the tabling of this report.

Motion carried.