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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-09-24 Daily Xml
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Sentencing (Serious Repeat Offenders) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 9 September 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (12:36): I rise to speak on this bill and indicate the support of the opposition for this bill. In simple terms, this bill seeks to clarify and simplify the laws on serious repeat offenders. It amends the Sentencing Act as it applies to serious repeat offenders and the provisions that make it easier for the administration of justice, in particular the police, prosecutors and the courts. It does not make any substantive changes to the application, such as substantially expanding the offences to which the system applies or the circumstances in which it is used.

The Labor Party first introduced the serious repeat offender system, and it will be supporting this bill and making sure that our support ensures it passes as quickly as possible. We welcome improvements to a system that has already improved community safety over many years. When a person is found guilty of committing a certain number of specified offences they are deemed to be a serious repeat offender for sentencing purposes. This can apply when two relevant sexual offences or three relevant violent offences are committed.

After being deemed a serious repeat offender, those who commit crimes are punished more severely for any further offending. This includes ensuring that non-parole periods for further offences will be for at least 80 per cent of the head sentence. It is also important to note that the provisions apply to future offending, whether or not the future offending is within the group of offences that can trigger a declaration of a serious repeat offender.

The crimes of serious repeat offenders have devastating consequences on their victims and the community more generally. Serious offences covered under the system include murder and manslaughter, various sexual offences, criminal trespass, robbery and serious drug trafficking. All of these should be treated with grave concern. Through sentencing, serious repeat offenders are more severely dealt with for subsequent offending, and we are trying to minimise the future harm to victims or members of the community.

We support any effort to clarify provisions, given the significant impact it could have on community safety. Specifically, this bill amends sections 52 and 53 to be clearer and more concise. It repeals the definitions of category A serious offences, refers directly to the provisions of the Criminal Consolidation Act and has two categories instead of four. There are more inclusive definitions of serious offences and serious sexual offences.

The bill amends and makes clearer the threshold of section 53, which defines serious repeat offenders. The bill proposes that serious repeat offenders are offenders with convictions for at least three serious offences on separate occasions or two serious sexual offences on separate occasions. The government's section 53 amendments do not dramatically redefine the threshold for serious repeat offenders. Essentially, this bill administratively changes the phrasing of sections 52 and 53 for increased clarity.

In current statutes, there are four categories of offending, which, if met, mean a person is taken to be a serious repeat offender. As well as clearly specifying that serious repeat offenders are those who have committed three serious offences or two serious sexual offences, the bill's amendments move around distinctions based on the age of victims for serious repeat sexual offences from section 53 to section 52. The bill removes the section 53 category of serious repeat offenders where offenders have committed serious sexual offences to victims under 14 on at least two occasions. It is worth noting that the bill does not soften the law on these child sex offenders.

I repeat that the opposition will be supporting this bill in making sure the positions are clear and well clarified. I also repeat that this is something we have done. We have either supported or led the government on many of these occasions when we have sought to make sure the community is safer. These have included a number of areas and changes to our laws in relation to things like offenders who are unwilling or unable to control their sexual instincts, where the opposition led with proposed legislative changes. Some of those have found favour with the government and some have not.

In addition, there were guilty plea sentence reductions, where the opposition put up a private member's bill in July, before the winter break. That did not find favour with the government, but in relation to the government's bill on it I reiterate that the opposition stands ready to pass that bill. It has our full support. We were ready to pass that bill on Tuesday, Wednesday and again today on that particular measure, the reduction in sentences on guilty pleas from 40 per cent to 25 per cent. It is up to the government as to when it wishes to move that along, but I reiterate that on this bill we stand ready to support the government.

The Hon. M.C. PARNELL (12:41): Sentencing is indeed an incredibly complex matter, and the position the Greens have always taken, and will take again on this bill, is that we believe that task is best suited to the judge, the person who has heard all the evidence and heard all the circumstances. The role of the parliament in establishing crimes is to also establish penalty ranges, and I support that as an approach, that the parliament determines, on behalf of the community, the appropriate maximum penalties for offences. However, what the Greens have always done—and what we will continue to do—is oppose minimum mandatory sentencing, and we will oppose the removal of judicial discretion.

If we go right back to first principles of sentencing, as set out in the Sentencing Act, the general principles of sentencing are, number one, proportionality: let the punishment fit the crime, as The Mikado, I think, said. That is not a Gilbert and Sullivan play I have ever performed in, although I did perform in Trial by Jury as part of the Warrnambool Players in 1986, that much critically acclaimed performance. I have never done The Mikado, but the line we all remember from it is, 'Let the punishment fit the crime.'

That is sentencing general principle number one in South Australian law. The purpose of this bill is basically to overturn that number one sentencing principle to say, 'Well, we are not going to sentence offenders proportional to the offence they've committed; we are going to have different rules in place.' The other of the four general principles of sentencing are number two, parity; number three, totality; and number four I will paraphrase, 'Don’t sentence people for what you think they might have done, only sentence them for the offences they have been convicted of.' That is, effectively, general principle number four.

The purpose of this bill is to modify the special rules that have applied to people categorised as serious repeat offenders. The government has pointed out that there have been some anomalies, and that the major crime committed by judges—according to the minister in the second reading explanation—is, in her words, 'Confronted with this anomaly, some judges opted to construe this in the defendant's favour.' That is the crime: the crime of judges construing something in favour of a defendant.

Of course, what they have to do is construe it in favour of something the Attorney-General wants or someone else, a shock jock in the community maybe, wants. That is the crime our judges have committed. The government's response is, 'Let's clarify it.'

I acknowledge that special sentencing rules for serious repeat offenders have been around for some time. They existed in the criminal law before I came to this place. I have taken what opportunities have been given to me in my 14½ years to oppose these types of rules, as I have said, to oppose the removal of judicial digression, and to as far as possible allow judges who have heard all the evidence, heard all the circumstances and are bound by general principle of sentencing number one—proportionality—to let the punishment fit the crime. This bill overturns that fundamental principle and the Greens will be opposing it.

Debate adjourned on motion of Hon. D.G.E. Hood.

Sitting suspended from 12:45 to 14:15.

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