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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-05-17 Daily Xml
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Statutes Amendment (Home Detention) Bill

Committee Stage

In committee.

Clause 1.

The Hon. A.L. McLACHLAN: I should revisit or set out the Liberal Party position. The chamber is aware that the Liberal Party has filed an amendment, which it will seek to pursue. The Liberal Party supports this bill, but believes that it requires amendment. It takes the view that the amendments are necessary to ensure that serious criminals do not have the opportunity for home detention. The Liberal amendment restricts the opportunity of those sentenced or about to be sentenced for murder, serious sexual offences and offences relating to a terrorist act.

The Liberal Party acknowledges that there will be circumstances, potentially, in relation to serious sexual offences, for which sentences may have an option for a suspended sentence. The Liberal Party does not find this persuasive. It takes a more binary view that there may be extraordinary circumstances that require suspension, but if it is a serious sexual offence there should be imprisonment. It particularly draws the chamber's attention to the definition of 'serious sexual offence', which appears in the Criminal Law (Sentencing) Act 1988, and which comes within section 33(1), Interpretation, and comes under the heading 'Division 3, Dangerous offenders'.

In other words, the Liberal Party has not said that there should be a middle ground in sentencing options in relation to these type of offences. At the same time, out of an abundance of caution, we have included murder and offences related to terrorism, although we acknowledge that under the current construction of sentencing for murder it is virtually impossible, on my understanding, that there could be a suspension of a sentence. Therefore, the options under the government amendments will not apply.

I should add that the minister may comment that, in his summing up of the second reading, I asked again for the matters that were raised in the letter from the Law Society to be addressed in his closing of the debate. I appreciate that he responded to the matters raised by the Law Society. I would add that not all those matters, as he indicated to the chamber, were addressed by the Attorney-General in the other place. The Attorney-General was responding to questions from the Liberal Party in that chamber, and not every question related to every aspect raised by the Law Society.

On a personal note, I find it encouraging that the government is arguing for unfettered judicial discretion in relation to this bill and home detention, which has not really been the philosophical approach of the government in recent years. I do not have to cast my mind that far back in relation to recent laws regarding serious and organised crime where one of the significant amendments in relation to that bill was to restrict the judicial discretion. Nevertheless, it is good to see the government taking that philosophical approach. However, it did not persuade the Liberal Party and we will be pursuing our amendments.

Clause passed.

Clauses 2 to 5 passed.

Clause 6.

The Hon. A.L. McLACHLAN: I move:

Amendment No 1 [McLachlan–1]—

Page 3, after line 22 [clause 6, inserted section 33BA]—Insert:

serious sexual offence has the same meaning as in section 33(1);

terrorist act has the same meaning as in the Terrorism (Commonwealth Powers) Act 2002.

(2) For the purposes of this Division, a reference to an offence of murder includes—

(a) an offence of conspiracy to murder; and

(b) an offence of aiding, abetting, counselling or procuring the commission of murder.

(3) This Division does not apply in relation to—

(a) a defendant who is serving or is liable to serve a sentence of indeterminate duration and who has not had a non-parole period fixed; or

(b) a defendant who is being sentenced—

(i) for an offence of murder; or

(ii) for a serious sexual offence; or

(iii) in relation to an offence involving a terrorist act.

The Hon. J.A. DARLEY: I rise to indicate my position with respect to the amendment. Whilst on face value I would be inclined to support the amendment, it does pose some difficulties that seem extremely complicated to overcome. Those difficulties relate to what we have previously and somewhat loosely referred to in this place as 'young love' cases; that is cases involving young people who engage in sexual activity and, as a result, become the subject of criminal convictions.

Those honourable members who were here at the time may recall that I raised this issue in 2012 when we dealt with the Spent Convictions (Miscellaneous) Amendment Bill and in 2013 when we dealt with the Child Sex Offenders Registration (Miscellaneous) Amendment Bill. Indeed, I moved amendments to the latter bill aimed at addressing the sorts of issues that can potentially impact young people involved in relations which, at law, are considered inappropriate.

During one of my contributions, I highlighted a criminal case that involved a young man aged 19 who pleaded guilty to three counts of unlawful sexual intercourse with a person under the age of 17 years. The maximum penalty for that offence is 10 years imprisonment. I place on the record again the remarks of His Honour Judge Slattery because they encapsulate succinctly the difficulties that the opposition's amendments give rise to. In that case, His Honour Judge Slattery stated:

I have taken into account the fact that the age difference between you and the victim was a mere four years and that the victim was cooperative in enabling the offending to take place. I make that finding based on the text messages attached to the police statements as well as the factual basis agreed by counsel.

His Honour then went on to say:

The legislation that you have been charged under exists to protect children like the victim from their own immature inclinations. Even at your young age, parliament has stated that you are old enough to know better than she did and has subjected you to the possibility of a lengthy period of imprisonment. Not only that, but whatever sentence I impose, you will be classified as a registrable offender under the Sex Offenders Registration Act 2006.

Upon my interpretation of that Act, because you had your 19th birthday before rather than after the offending and because the unlawful sexual intercourse occurred over a period longer than 24 hours and on three separate occasions, you will be liable to report as a child sex offender for the rest of your life.

This will have a deep impact on your future employment opportunities and the way that you are able to function within the community. It is likely to have a negative impact on your rehabilitation.

I personally fail to see why such registration is necessary in the distinct circumstances of this case, but I have no discretion in the matter and unfortunately can do nothing about it and do not take it into account in formulating your sentence. You do not present a danger to society and I am satisfied that you will not offend in this manner again in the future.

You are far from what the courts would usually describe as a sexual predator. Whether the current law is an appropriate fit for circumstances in matters like yours is a matter out of my hands. As I have said, I have no discretion in this matter.

There is no question that, without some degree of flexibility, some of the laws on our statute books can have wideranging, continual and extremely devastating ramifications on a young person's life, and this case certainly highlights that.

Turning back now to the opposition's amendments, my concern is that the current drafting does not enable those offences involving young love cases to be separated and treated differently to those cases involving more serious offending. In fact, my advice is that, given the way that serious sexual offence is defined in the Criminal Law (Sentencing) Act 1988, it would take an extraordinary amount of work to phrase the opposition's amendment in some alternative form that would enable the courts to exercise discretion in young love cases.

Unfortunately, this is just one of those areas of the law where no distinction is drawn between the sort of offending described by His Honour Judge Slattery on the one hand and serious sexual predators on the other. There is absolutely no question that sexual predators should not be afforded the opportunity to serve their periods of imprisonment on home detention; however, whilst I can sympathise with the opposition, the consequences of this amendment would be to remove a court's discretion in an area of the law that is clearly wanting and in urgent need of further reform.

Further, I think it is also extremely clear that the discretion proposed by the government is not intended to apply to the perpetrators of cruel and callous offences who deserve to be punished with the full force of the law. For those reasons, I cannot support that part of the amendment that deals with sexual offending. If there is any way of splitting the amendment, I would be more than willing to support the part that deals with murder and terrorist acts, although again, I would question whether there is, in fact, any real need for those changes as well.

The Hon. P. MALINAUSKAS: The government opposes the amendment moved by the Hon. Mr McLachlan because it seeks to limit the availability of the home detention sentencing regime. I understand this is based on a perceived need to exclude a certain category of offenders. The amendment removes judicial discretion as to who is an appropriate candidate to serve their sentence of imprisonment on home detention. As noted during the second reading, the bill does not exclude particular classes of offences. This is deliberate. It is not only appropriate but indeed necessary for the court to maintain judicial discretion when considering the imposition of home detention as a valid sentencing option.

The sentencing court must balance many different factors when undertaking the difficult task of sentencing an offender. It is well placed to and, indeed, must consider the circumstances of the offence, the personal circumstances of the victim, the personal circumstances of the offender (including any rehabilitation and contrition), the need to ensure the offender is punished, the deterrent effect of the sentence and a range of other matters.

It should not be forgotten that, in imposing such a sentencing option, the paramount consideration must be the safety of the community. This is an important safeguard. The government and our community place great trust in our judiciary to take into account all of the relevant issues and circumstances when sentencing an offender. I have confidence that our judiciary is well able to assess whether an offender presents a risk of reoffending or poses a risk to the safety of the community. The discretion of the court should be maintained.

If passed, the amendment would have the effect that some offenders would be eligible to receive a suspended sentence, but would not be eligible to serve a term of imprisonment on home detention. This is plainly a ridiculous result. It would also have the effect of removing the option from the sentencing court in cases where a person could be regarded to be a prime candidate to serve a sentence on home detention.

The nature of criminal law is such that many offences are structured to capture a broad range of actions and consequences. The sentencing court is then entrusted to impose a penalty commensurate with the severity of the offence as well as the other relevant sentencing considerations, including the personal circumstances of the offender.

We consider that the court should have the option, in appropriate cases, to consider imposing a sentence to be served on home detention, rather than fully suspended or served in a prison. This is why it is our view that the sentencing judge, who is aware of the particular factors of the case and the particular facts of the offender, is best placed to determine where the offender falls on the scale, and indeed whether the offender poses an ongoing risk to the safety of the community.

Home detention is already available to the Department for Correctional Services as a means of managing offenders at the back end of their sentence. This is one of the department's most successful programs. Why should we not allow our judicial officers to sentence people to serve their sentences on home detention? This is what this amendment does for some offences. That is why the government opposes this amendment and urges the committee to likewise oppose it.

The committee divided on the amendment:

Ayes 8

Noes 10

Majority 2

AYES
Dawkins, J.S.L. Hood, D.G.E. Lee, J.S.
Lucas, R.I. McLachlan, A.L. (teller) Ridgway, D.W.
Stephens, T.J. Wade, S.G.
NOES
Darley, J.A. Franks, T.A. Gago, G.E.
Gazzola, J.M. Hunter, I.K. Maher, K.J.
Malinauskas, P. (teller) Ngo, T.T. Parnell, M.C.
Vincent, K.L.
PAIRS
Lensink, J.M.A. Kandelaars, G.A.

Amendment thus negatived; clause passed.

Remaining clauses (7 to 16) and title passed.

Bill reported without amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (17:16): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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