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16 May 2017

Sentencing Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 March 2017.)

The Hon. A.L. McLACHLAN ( 16:32 :38 ): I rise to speak to the Sentencing Bill. I speak on behalf of my Liberal colleagues. The Liberal opposition will support the second reading. I alert honourable members that the Liberal Party will seek to explore amendments to clauses of the bill regarding home detention, and the Liberal opposition will also consider the debate on the second reading when assessing any amendments that may be put forward by other honourable members in the chamber.

When contemplating crime and punishment I am always drawn to the line, ‘Yet who would have thought the old man to have had so much blood in him,’ one of the most powerful lines in the great plays, demonstrating the corrosiveness of guilt. In response to a criminal act the community has always grappled with an appropriate response. In sentencing, the state acts in its most coercive manner; therefore, the infliction of a punishment on an individual by the state presents a distinctive moral challenge to any community, especially when determining what the appropriate treatment is for those who have been convicted of a crime.

There are generally two main schools of thought. There are those who justify punishment as a means to deter and even prevent future criminal acts as well as seeking to reform offenders. The alternative view is that punishment is deserved and therefore an inherently appropriate response to criminal wrongdoing. Punishment by its very nature imposes a burden on the individual convicted. There is an element of retribution to ensure the maintenance of social order. It is in the form of restriction of liberty, financial penalties or community work.

There is also some component of suffering and public condemnation, and a desire for community wellbeing. This leads to an inevitable tension between many of these objectives and the importance of ultimately restoring the guilty to the community, if possible. We must be careful that the punishments that are inflicted in our name do not harden individuals into career criminals. Those who have committed crimes should receive a punishment, but it is an old wisdom that teaches us that we must always seek to be humane and show mercy, especially when the convicted has demonstrated contrition.

This bill repeals the Criminal Law (Sentencing) Act 1988 and rewrites the legislation for the sentencing of criminal offenders within South Australia. The bill seeks to address the inherent tensions in sentencing which I have raised. The primary purpose of sentencing a defendant will be to protect the safety of the community. There are also secondary sentencing purposes identified. The bill contains provisions that are dependent upon the passing of the government’s indictable offences bill, which seeks to overhaul the way indictable offences are procedurally dealt with in the criminal justice system. Some of the provisions in this sentencing bill relate to sentencing discounts for guilty pleas made at various stages of their proposed pre-trial disclosure regime in the indictable offences bill.

I now turn to the practical changes proposed by this bill. The bill repeals the current sentencing act and replaces it with a new act. Firstly, it reforms the general sentencing principles that are contained in the current act. The extant act contains an extensive list of sentencing considerations in section 10. The bill repeals this and replaces it with a new model. As I have mentioned, the bill sets out that the primary purpose of sentencing a defendant is to protect the safety of the community. The bill then sets out a range of secondary sentencing purposes. These include considerations such as punishment, deterrence and rehabilitation. Every sentencing principle is subject to the overriding primary principle.

A third tier of technical, or what is called individual, sentencing factors is then set out. There is no particular order in which these factors are to be considered, and the significance of each will largely depend on the facts of a particular case. By way of example, these include a range of factors already considered in the sentencing process, such as the nature, circumstances and seriousness of the offence, the personal circumstances and vulnerability of the victim, the defendant’s offending history, age, physical and mental condition, and the likelihood that they will reoffend.

The bill also proposes some reforms to the operation of sentencing reductions for guilty pleas. The Criminal Law (Sentencing) (Guilty Pleas) Amendment Act and the Criminal Law (Sentencing) (Supergrass) Amendment Act came into force as recently as March 2013. Those acts created a legislative scheme for the reduction of sentences following guilty pleas and a defendant’s cooperation with law enforcement agencies. The scheme created a sliding scale of reductions depending on the timing of the guilty plea.

Of note, under the current act, if a guilty plea is entered not more than four weeks after the first court appearance, the sentencing court may reduce the sentence by up to 40 per cent. If a plea is entered more than four weeks after that, the maximum discount decreases in accordance with prescribed periods to the lowest maximum of 10 per cent. Those provisions are also aimed at encouraging offenders who are minded to plead guilty to do so in a timely way.

The acts were to be reviewed after two years and this was conducted by the Hon. Brian Martin AO QC. In his review, he addressed the legal interpretation of the maximum 40 per cent discount provision for those offenders who pleaded guilty within the first four weeks after their first court appearance. He drew attention to the Court of Criminal Appeal’s decision that where negotiations have taken place after this four-week period as a result a different charge is laid in its place. The time period restarts upon the filing of this new offence. The Attorney stated in his second reading in the other place that it was never the intention to allow the defendant who declines to negotiate until the doorstep of trial to merit a 40 per cent reduction in sentence.

To address this issue, the bill before us includes amendments to ensure that the court has regard to the timing of the negotiation when they result in the laying of an alternative charge in respect of the same conduct. The bill also introduces a maximum 10 per cent reduction incentive for those defendants who do not plead guilty but comply with the proposed new pre-trial disclosure requirements.

The bill introduces some amendments to the government’s newly implemented home detention regime. The proposed changes include a requirement that a home detention order may not be made if it would lead to a lack of public confidence in the administration of justice. The conditions of home detention will now specify that liberty to attend remunerated employment and attendance at a course of education, training or instruction must first be approved by a home detention officer. The bill also introduces mandatory electronic monitoring.

The Liberal opposition has filed amendments to the home detention provisions. These amendments were moved by the member for Bragg in the other place, but they did not, at that time, find favour with the government. In short, the amendments seek to restrict the amount of time a home detention detainee can be outside their home to 12 hours a day and restrict the type of remunerated employment that the home detention officer can allow the detainee to take part in to exclude sporting activities. It also defers any proposed change to the detainee’s employment or time at home arrangement back to the court rather than to the home detention officer.

The Liberal opposition has been prompted to move these amendments as a result of the issues that have already arisen with the operation of the government’s home detention scheme. We continue to consult on the potential impact of these provisions. As a result of the consultation, our amendments may be subject to some further refinement.

The bill also introduces two new sentencing options for courts to impose when sentencing, in addition to the measures that are currently available. The first is called an intensive correction order and the second is a community-based order. I asked the minister in the summing up of his second reading what the genesis for these two new options was, have they been used interstate and, if so, have they been proven to be effective?

I also asked the government to address, in the summing up of the second reading debate, the points and arguments raised by the South Australian Bar Association in their letter to the Attorney-General dated 15 March 2016. Sentencing is never an easy task and is often subject to much poorly informed debate. In the end, as legislators, we try to strike the right balance between entrenching in prescriptive legislation what we believe are community standards and allowing those we have appointed as judges to exercise discretion, having regard to the facts of each case. As Lord Kenyon said in the Trial of the Earl of Thanet and others in 1799:

In dispensing the criminal justice of the country, we have sometimes an arduous task to perform. It is not a pleasant thing, most certainly, to condemn any one of our fellow creatures to punishment; but those who are entrusted with the administration of the criminal justice of a country, must summon up their fortitude, and render justice to the public, as well as justice tempered with mercy to the individual.

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