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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-09-24 Daily Xml
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Bills

Sentencing (Serious Repeat Offenders) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. D.G.E. HOOD (16:14): I rise to speak to the Sentencing (Serious Repeat Offenders) Amendment Bill. The bill seeks to resolve practical difficulties that have arisen in the serious repeat offender provisions since they were initially inserted into the Criminal Law (Sentencing) Act 1998 in 2003 and then re-enacted in the current Sentencing Act of 2017. The serious repeat offender provisions provide that once an offender has committed a certain number of offences for which a term of imprisonment has been imposed the offender must be sentenced more harshly than would otherwise be the case. Furthermore, any non-parole period must be at least four-fifths of the head sentence.

The Criminal Law (Sentencing) Act previously provided one automatic category for being a serious repeat offender. This category includes an offender who has committed three category A serious offences. The Criminal Law (Sentencing) Act also provided three discretionary categories, which were (1) if an offender committed three serious offences, (2) if an offender committed two serious sexual offences against a person under the age of 14 or (3) if an offender committed two category A serious offences.

When the Criminal Law (Sentencing) Act was replaced with the Sentencing Act in 2017, section 53(1) was amended so that offenders automatically became serious repeat offenders in all four of the circumstances listed above. The former Director of Public Prosecutions raised several issues with the Attorney-General in relation to the drafting of these provisions, which has led to difficulties for the DPP, the courts and the police in the application thereof.

The bill seeks to amend section 53 so that a person will automatically become a serious repeat offender if they have been convicted of at least three serious offences committed on separate occasions, or at least two serious sexual offences (defined to be offences where the victim was under the age of 14 at the time of the offence).

Once an offender meets the threshold in any of these four categories, they automatically, under this bill, become a serious repeat offender and must be sentenced as such for all subsequent offences (whether the subsequent offences are serious or not) for the rest of their life. There is no need for a designation of category A offences, as they are already included in the list of serious offences.

Additional problems with the current drafting will be addressed by describing offences by reference to the relevant section of the Criminal Law Consolidation Act 1935 that creates them, adding aggravated criminal trespass to the list of serious offences, omitting the specific reference to violent offences, as they are already covered by the other provisions, and providing that offences committed in other states and territories are to be assessed by reference to the conduct involved. This is in order to determine whether they count as serious offences under the South Australian regime.

The court can exercise discretion regarding the sentence and non-parole period to be imposed if there is evidence on oath of exceptional personal circumstances and it is determined that it is not appropriate to sentence the defendant as a serious repeat offender. It is important to note that the bill does not seek to amend this judicial discretion. The government supports that important capacity as it currently exists within the framework of the new proposed legislation. These changes will have a positive impact on the workability of the serious repeat offender provisions and streamline the process by which serious repeat offenders are identified and dealt with.

Other matters of detail to note include the replacement of the term 'home invasion' with the offence of 'serious criminal trespass in place of residence', namely, an offence under section 170 of the Criminal Law Consolidation Act, and the addition of aggravated criminal trespass to the list of serious offences.

The reference to violent offences been omitted, noting that this category of offence is already covered by the inclusion of all offences under part 3 of the Criminal Law Consolidation Act. An offence under section 51 of the Criminal Law Consolidation Act (sexual exploitation of a person with cognitive impairment) has been added to the definition of serious sexual offence—and so it should, in my view.

Consultation has been extensive and has included the DPP, the Commissioner of Police, the Chief Magistrate and other key stakeholders. Following consultation, the transitional provisions have been modified to ensure that persons sentenced after the commencement of the provisions are sentenced in accordance with the new provisions, regardless of whether the offence was committed before or after their commencement. This is consistent with other recent changes to the Sentencing Act, as members would be aware. At the Legal Services Commission's suggestion, the issue of resentencing has been clarified so that if a sentence imposed under the current provisions is overturned on appeal, and the defendant has to be resentenced, they will be sentenced in accordance with the new provisions.

The community rightly expects us, as legislators, to ensure that offenders who have committed a certain number of serious offences, and who continue to offend, are punished more severely for their subsequent reoffending. 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 its present form, serious repeat offender legislation makes it very difficult for police investigators generally, particularly those assessing interstate matters, and the courts as well, when trying to work out where they should start with the application of this law without the clarity that it is going to continue, which this bill provides.

This bill is important, as it 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 reoffending once a threshold of serious offences has been reached, and that any non-parole period is at least 80 per cent of the head sentence. I strongly support this bill.

The Hon. F. PANGALLO (16:20): I rise to speak in support of the Sentencing (Serious Repeat Offenders) Amendment Bill 2020. Once again, members of the Legislative Council are being asked to rush through a bill that we received only on 9 September 2020.

Although the Law Society of South Australia received a draft well before this date, we mere members of the Legislative Council are not deemed worthy to also look at a draft so that we have a little over two weeks to consider it. Even worse is the fact that, although we can access the Law Society's submissions to the Attorney-General on its excellent website, the Attorney-General herself will not circulate submissions received from stakeholders, claiming they are cabinet-in-confidence.

This is especially concerning when the government reports no adverse comments were received or that a stakeholder supports a bill, only to find out later there was substantial and well-reasoned opposition to the bill, and that it was not supported by experts who know their stuff. So much for open and transparent government, or trying to learn and use the knowledge and expertise of experts in their field.

I think I speak for many South Australians when I say that each time I read reports of serious repeat offenders, particularly where the offences are child abuse, rape, sexual assault and aggravated violence and reoffending, I am absolutely incensed. Take for example the recent case of Gary Tipping. He was convicted of sexual offences against boys who were between the ages of eight and 15 years.

The court was told in May that Tipping was unwilling and unable to control his sexual urges and was at significant risk of reoffending. Forensic psychiatrists told the Supreme Court that they believed Tipping remained at high risk of reoffending, had poor insight into his crimes, and had not engaged well in treatment. Dr Narain Nambiar told his trial:

What the problem is is that he has been in situations over many years now where whenever he has been in that situation it's led to offending.

The Parole Board and another psychiatrist issued similar warnings that Tipping would reoffend.

Surprise, surprise: on his release, on the very day he was ordered to stay off the internet, he was in breach of his parole order by using dating apps to have sexual communications with a person under the age of 18. Just two months later, Tipping was arrested again for breaching his release conditions.

The need for these amendments is also well demonstrated in the case of R v Ross [2018]. Coincidentally, this case also illustrates the serious problems with sentence discounting, which saw this offender gain a 30 per cent discount for a guilty plea for the offences of rape of a 14-year-old child and distributing child pornography. I will take up that issue separately when we consider the sentencing act discounts bill, which is currently on its way to us from the House of Assembly.

In the R v Ross case the Appeals Court encountered difficulties with the Sentencing Act in regard to the criteria to define the defendant as a repeat serious offender. The court considered and answered the question of whether Ross was a serious repeat offender within the meaning of section 52 of the Sentencing Act at the time.

The court found a person will be a serious repeat offender if they had committed on at least three separate occasions an offence to which part 3 division 4 of the act applies. Part 3 division 4 applies to the offences of rape, disseminating child exploitation material and possessing child exploitation material because they are very serious offences, all carrying a maximum penalty of imprisonment for at least five years.

The appeal court determined a sentence of imprisonment other than a suspended sentence was the appropriate penalty. The respondent committed the four offences for which he was to be sentenced on separate occasions within the meaning of the act. The respondent therefore satisfied the definition of serious repeat offender. It beggars belief that the original court could have given such an offender, found guilty of these types of offences, a suspended sentence.

This bill fixes a problem that was created for the DPP, the courts and SAPOL when the Criminal Law (Sentencing) Act was replaced by the Sentencing Act and offenders automatically became serious repeat offenders in four limited circumstances with overlaps. There was an additional difficulty with how interstate offences are addressed for equivalence with the listed South Australian serious offences.

I welcome the amendments this bill seeks to make to the act to ensure that a person will automatically become a serious repeat offender if they have been convicted of at least three serious offences committed on separate occasions or at least two serious sexual offences; that is, where the victim was under the age of 14 at the time of offending. We should not give anyone who commits this type of offence on more than one occasion the opportunity to keep reoffending.

I also welcome the retrospectivity of this bill, which is consistent with the retrospectivity applied under the current serious repeat offender provisions. I acknowledge, as the Law Society of South Australia points out, that some offenders may now have a suspended sentence unavailable to them, which may have been previously available. Yes, some of them might not have entered guilty pleas had they known that a suspended sentence was not an option, but I would think that a suspended sentence would be a very remote option for a serious repeat offender, so I do not think that this is a strong argument against retrospectivity.

As R v Ross showed, judicial discretion can sometimes be misapplied and then has to be appealed, which is a costly exercise that ties up more of our limited court time and more members of our judiciary. While I have supported and, indeed, promoted judicial discretion being available to the judiciary in relation to summary and traffic offences, in regard to these types of serious repeat offenders it is imperative the judiciary has crystal clear guidance about what the parliament intended.

This bill should assist the courts to get it right the first time in regard to serious repeat offenders. More importantly, the public will be very clear on what constitutes a serious repeat offender and know there are strict sentencing provisions applicable to them. They will also know the government has addressed a grey area, with the intended outcome being serious repeat offenders are appropriately detained and the community better protected.

These serious repeat offenders are in a category all of their own and I want them to be easily recognised and defined as such when facing the courts, so that they can be appropriately sentenced. With those comments, I commend the bill to the Legislative Council.

The Hon. R.I. LUCAS (Treasurer) (16:29): I thank honourable members for their contributions to the second reading of the bill and I look forward to consideration of the bill in the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: My question to the Treasurer is: when was this bill first drafted by the government?

The Hon. R.I. LUCAS: My advice is that it was in 2019.

The Hon. K.J. MAHER: I appreciate a lot has happened since 2019 in South Australia and the world but without an exact date—but a bit more specific—was it early, mid, or late 2019?

The Hon. R.I. LUCAS: I am sorry but we will have to take that on notice. We do not have with us at the moment a rough estimate as to what part of 2019 the first draft was. We have various drafts of early 2020 but we are not sure how many went before it.

The Hon. K.J. MAHER: Can I ask the Treasurer, both in the preparation of the bill and once it was drafted, who was consulted in relation to the bill?

The Hon. R.I. LUCAS: I am advised that it was the Chief Justice, the Chief Judge of the District Court, a judge from the Youth Court, the Chief Magistrate, the Law Society, the Bar Association, the Legal Services Commission, ALRM, the Commissioner of Police, the Director of Public Prosecutions, the Chief Executive of the Department for Correctional Services, the Crown Solicitor and the victims of crime commissioner.

The Hon. K.J. MAHER: What was the result of consultation, particularly with any elements of the judiciary or those who investigate or prosecute?

The Hon. R.I. LUCAS: I think it is probably public that the Law Society and the Bar Association had indicated concerns publicly, but in relation to those within the judicial system the characterisation I have been provided with is that they were broadly supportive of the proposals. The concerns that have been expressed I think have been expressed publicly by the Law Society and the Bar Association.

The Hon. K.J. MAHER: Was there any specific case or cases that found their way through court that this legislation was drafted in relation to, or was it generally to remedy the problems it is seeking to remedy? Were there any things that really highlighted its intention and, if so, what were those cases?

The Hon. R.I. LUCAS: My advice is that there were no specific cases that prompted it. It was a general view that had obviously been taken that these legislative provisions needed to be improved.

The Hon. K.J. MAHER: I appreciate the answer from the Treasurer. If there were no specific cases, was there a general type of case or a general type of offence that prompted this particular review and the legislation?

The Hon. R.I. LUCAS: My advice is that, amongst others, the DPP put a view that these provisions were difficult to work with, difficult for all concerned to clearly understand what we, the legislators, had intended, and there was a need, from their view and indeed others who obviously were part of reviewing the adequacy of the legislation, that it needed to be clarified. That ultimately is what has led to what we are being asked to consider in the parliament today.

Clause passed.

Clause 2.

The Hon. K.J. MAHER: In relation to clause 2, if this bill is passed today, when does the government expect that it will come into force?

The Hon. R.I. LUCAS: My advice is as soon as possible.

The Hon. K.J. MAHER: I thank the Treasurer for his answer. Can he be a little bit more specific? Does the government see this as an urgent priority in terms of getting assent to this bill?

The Hon. R.I. LUCAS: I am not sure what adjective I should use, but certainly it is seen as a high priority of the government to get on with it and do it. I am not aware, I am not advised, that there is any reason why, if the parliament passes it, we would not process it as quickly as possible.

I do not think it is of the nature where, if we pass it now, we would ask the Governor in Executive Council to make himself available late tonight to do it, but in the normal process to do it as quickly as possible, whatever other procedures we might have to do. Get on with it—that is my advice and my understanding.

The Hon. K.J. MAHER: The Treasurer half answered what was going to be my next question. If the government was minded, could the government pass this bill this week? What are the next steps? It has to be assented to by the Executive Council. Theoretically, when could this bill come into force?

The Hon. R.I. LUCAS: Just the usual process of proclamation. Hopefully we pass the bill here before our House of Assembly colleagues get up today so that the message can get down to them, but we are in the hands of the committee in relation to that. Then we will proceed as quickly as possible in terms of proclamation after that. There is no intention to delay—I cannot see why anyone would wish to—if the parliament passes it, doing it as expeditiously as possible.

Clause passed.

Remaining clauses (3 to 5), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (16:43): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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