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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-09-09 Daily Xml
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Sentencing (Serious Repeat Offenders) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. J.M.A. LENSINK (Minister for Human Services) (17:54): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, this Bill seeks to address a number of issues with the serious repeat offender provisions in Part 3, Division 4 of the Sentencing Act 2017 (the Act).

The Act became operational on 30 April 2018 but some of the issues with the serious repeat offender provisions were already present when they formed part of the repealed Criminal Law (Sentencing) Act 1988. The serious repeat offender provisions contained in Part 3, Division 4 of the Act are designed to ensure that offenders who have committed a certain number of serious offences, and continue to offend, are punished more severely for their subsequent offending.

There is a list of serious offences that, upon conviction, count towards the threshold for becoming a 'serious repeat offender' and being sentenced as such.

In order to count towards the threshold, offences (other than serious firearm offences) must have a maximum penalty of imprisonment of at least 5 years and, in the case of the first two categories, a term of imprisonment must have actually been (or, in the case of offences before the Court when the provisions are considered, will be) imposed. There are four categories of offending which if met, mean that a person will automatically be taken to be a serious repeat offender. These are: (a) when a person has committed on at least 3 separate occasions a category A serious offence to which the Division applies;

Offenders in the other three categories were only serious repeat offenders if a court declared them to be. In other words, the court retained a discretion in relation to these other three categories.

With the enactment of the new Sentencing Act 2017 (which commenced operation on 30 April 2018), the court's discretion was removed and all four of the categories operated automatically.

The removal of the court's discretion created an overlap and inconsistency between two categories, (a) and (d), making category (a) now redundant.

Confronted with this anomaly, some judges opted to construe this in the defendants favour, not applying category (d), and therefore requiring the offender to have committed 3, rather than 2, offences before sentencing them as a serious repeat offender.

The changes in 2017 also created an overlap between categories (a) and (b), in that all of the 'category A serious offences' in (a) are also 'serious offences' in (b). This means that the distinction between 3 'category A offences' and 3 'serious offences' is essentially meaningless.

Mr President, the Bill makes amendments to remove these overlaps and inconsistencies.

The current provisions are also difficult for the courts, prosecutors and defence counsel to apply in practice due to the imprecise way in which the offences are described.

Where offences were committed under interstate legislation, the task of obtaining more detail as to the circumstances surrounding an offence is even more difficult. Prosecutors must work out from a bare description in a criminal history report the section of the interstate law that was contravened and whether the same conduct at the relevant time would have amounted to an offence contrary to South Australian law for which a penalty of at least 5 years imprisonment was applicable. It may be necessary to seek more information from interstate authorities.

Researching an offender's criminal history in this way is labour intensive, has resource implications for prosecuting authorities and the courts and can lead to delays in sentencing.

In addition, there is some doubt as to whether suspended and community based custodial sentences are to be counted for the purposes of these provisions.

Mr President, the Bill addresses all of these issues.

Given the extent of the changes required, sections 52 and 53 of the Act have been re-written in a simplified form.

Under the Bill, the inconsistency between categories (a) and (d) and the overlap between categories (a) and (b) are removed. Section 53(1) provides that a person will automatically become a serious repeat offender if they (whether as an adult or as a youth) have been convicted of at least 3 serious offences committed on separate occasions, or at least 2 serious sexual offences (defined in section 52 to be offences where the victim was under the age of 14 at the time of the offence).

Mr President, pursuant to the transitional provisions in Schedule 1, the amendments will apply to a sentence imposed after their commencement regardless of whether the offence was committed before or after that commencement, or whether the defendant is being sentenced at first instance or on appeal. The amended provisions do not affect any sentence already imposed.

Corresponding amendments are made to section 55(1) of the Act, which establishes the threshold for a court to make a declaration of a youth as a recidivist young offender. The court retains a discretion as to whether to sentence a youth as such.

Mr President, this is a relatively small Bill, but it is an important one that will ensure the serious repeat offender provisions are more readily understood and applied. They mandate a robust sentencing response to those who repeatedly flout the law by ensuring they can be more harshly punished for all offending once the threshold of serious offences has been reached and that any non-parole period is at least 80 per cent of the head sentence.

I thank the Opposition for their support of this important piece of legislation through the House.

Mr President, I commend the Bill to Members and I seek leave to insert the Explanation of Clauses in Hansard without my reading it.

EXPLANATION OF CLAUSES

Part 1—Preliminary 1—Short title 2—Commencement 3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Sentencing Act 2017

4—Substitution of sections 52 and 53

This clause substitutes a simplified version of section 53 (and necessary associated definitions in new section 52).

5—Amendment of section 55—Declaration that youth is recidivist young offender

This clause makes matching amendments to section 55(1).

Schedule 1—Transitional provisions etc

1—Application of amendments

The transitional provision clarifies that the amendments apply to sentencing occurring after commencement (but not to any sentencing that has already occurred).

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

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