Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill


Members would be aware that this is the third occasion in perhaps the last 18 or even 24 months that this place has had reason to seek amendments to these legislative instruments in the face of what has been usually quite significant community concern about whether certain individuals are likely to avail themselves of abilities under current law to be released into the community after serving sentences, particularly for serious sexual offences, including those against children.

We have had a number of well-publicised incidents where concerns have been raised. Two individuals spring to mind—including, certainly, Mr Colin Humphrys. The issue at that point, if I recall correctly, was a person who may be unwilling or unable to control their sexual desires, the potential of that person being released into the community and the circumstances under which that release may occur. More recently, we also had the matter of Mr Vivian Deboo, who has not only been topical but has driven another look at the sentencing law to try to ensure community expectations around which members of the public, having been found guilty of certain sexual offences, are able to be released back into the community.

I think it is reasonable to say that attorneys-general, generally speaking, have quite a difficult job when it comes to amending the laws around the sentencing of criminals. Of course, there is the need to try to reflect the sentiment of the community and make sure that the community feels there is justice meted out by the courts and through the corrections system to those found guilty of these offences. I will not pretend to be as au fait with the public policy imperatives of sentencing law as perhaps the Attorney-General would be, but there is also the need to ensure that there are signals of deterrence sent in those sentences that are handed down.

There must also remain some capacity, where possible, for rehabilitation of offenders, where appropriate. More recently, and in those two matters I referred to earlier, we have had those issues surrounding community expectations of justice and community expectations around whether these certain individuals should be released back into the community ventilated and ventilated at great volume. Previously in this place, as I mentioned, we have been attempting to change or fix up elements of the Sentencing Act to try to better meet those community expectations.

Also, we have an Attorney-General, as a member of executive government, who has the sometimes unenviable task of trying to balance those community expectations, as reflected by the parliament, with a certain amount of freedom that the judiciary has, or expects to have, in determining how sentences are handed down for convicted offenders. Of course, the judiciary must use the laws passed by this place in delivering those sentences. We have a very complex and at times cumbersome Sentencing Act as a result of successive parliaments trying to amend the act to better reflect those community expectations.

In the Attorney's second reading explanation, she made reference to her predecessor's attempt to try to review the Sentencing Act and sentencing provisions to try to reduce some of that complexity and to try to make it more closely aligned with what are continually developing community standards and expectations around the sentences handed out to people convicted of crimes and to try to ensure that the parliament was making itself clearer, through the Sentencing Act, as to what the judiciary should be adhering to when sentencing these convicted criminals.

In finding that right balance between being prescriptive enough to best reflect the community's expectations in this regard, yet providing a necessary element of freedom for the judiciary—not for the convicted criminals—to best determine the most appropriate sentences, is that very difficult task that the Attorney-General has and attorneys-general before her have had. Here we are, making another attempt to try to get that balance right.

I am sure there are other instances which, if and when they are presented to this place, the Attorney and the rest of us may find, similarly, trying to navigate, complex and difficult, as we find ourselves here with this latest bill seeking to make amendments, not just to home detention orders, intensive correction orders and the circumstances around suspended sentences, but when it comes to this cohort of criminals for whom we are contemplating these circumstances, people who have been convicted of serious sexual offences, including against children, then it is a very, very difficult task.

We need only turn our mind back to the task that confronted this place and the Attorney last year when we were dealing with the legislative provisions surrounding the potential release of people unwilling or unable to control their sexual instincts. As I said, it is not that particular matter with which we are dealing in regard to this bill but it does provide some context for how difficult it has been.

As the Attorney pointed out in her contribution to this place, there are a number of different amendments. The one that I would argue we should be most concerned about relates to the amendments being made to section 71 of the Sentencing Act, which refers to home detention orders, and what could be described as the potential for a difference of opinion between us in this place and the laws which we, over many years, have put in place with the capacity for the judiciary to release someone on a home detention order who has been convicted of this nature of crime and how, indeed, the judiciary then interprets the legislation and makes a decision about whether that person is to be released.

On my reading of the bill, we are principally concerned with subsections (2), (3) and (4) of this section. In particular, subsection (4) provides:

(4) In deciding whether special reasons exist for the purposes of subsection (2)(b)(ii), the court must have regard to both of the following matters and only those matters:

(a) whether the defendant's advanced age or infirmity means that the defendant no longer presents an appreciable risk to the safety of the community (whether as individuals or in general);

(b) whether the interest of the community as a whole would be better served by the defendant serving the sentence on home detention rather than in custody.

If you were paying undue close attention to me when reading out those two elements of the subsection, you might have noticed a slight hesitation because we might have expected, collectively, that there would be a conjunction between (a) and (b) to make it absolutely clear that both parts of the section are to be read together and considered together by the sentencing judge when sentencing an offender. We understand that may not have always been the case and that there may be some ambiguity in how section 71(4) may be read or interpreted in considering whether a home detention order is to be issued.

When we have the prospect of a convicted offender, such as Mr Vivian Deboo, applying for release into the community under, I understand, a home detention order, seeking to perhaps avail himself of that part of the Sentencing Act, that gives us rise to consider whether this element needs strengthening. Indeed, the Attorney has presented us with a bill seeking to strengthen that. My earlier comments reflect that tension, and the Attorney and other attorneys must always seek to mediate on the expectations of the community, and hence of the parliament, and the ability of the judiciary to make its own determinations when sentencing an offender, particularly in relation to either periods of incarceration, a suspended sentence or making use of a home detention order or an intensive correction order.

This small change to section 71 of the act (and this is not the only change in the bill, of course) seeks to clarify for those reading it, let alone relying on it in sentencing, that both elements within subsection (4) are to be applied—not one but both. I am advised that there is some conjecture as to whether the two different parts of subsection (4) may be deemed, if considered, to constitute both rather than both (a) and (b) together constituting both in the first part of subsection (4).

There has been a significant amount of discussion about the circumstances around previously Mr Colin Humphrys and now Mr Vivian Deboo and how appropriate it would be if either of those people were released into the community, which has led us to where we are today. The Attorney's second reading explanation made some reflection on whether the efforts of the former Labor government to review the Sentencing Act were sufficient.

You could probably expect me to return fire with some comment that this could have been done more expeditiously and that, although the Attorney made it clear that she was seeking to have at least these elements of the act reviewed, if not more broad elements of the act reviewed, in an effort to make it clearer and better meet community expectations, we could have been discussing this a bit earlier.

Time is potentially of the essence because Mr Vivian Deboo is seeking release into the community and, in doing so, is seeking to avail himself of elements of the Sentencing Act. Could it have been done earlier? Of course, you would expect us to say, yes, we believe that it could have. However, without ventilating that part of the issue, here we are, now having to form a judgement about whether this small modification to this clause will be sufficient to give us the outcome that I am sure we collectively seek: to make it clearer, if not set the bar a little higher, for the judiciary in contemplating whether to release into the community not just Mr Vivian Deboo but a person in similar circumstances.

I would argue, as I am sure others in this place would, that there is no greater responsibility of government than to keep its citizens safe. There are few other things that can strike fear into the hearts of the community than contemplating whether somebody like Mr Vivian Deboo, who has been convicted of horrendous crimes, should be released into the community. If such a person should be released into the community then, very basically, why? Why should they be released into the community?

Of course, there is the argument that they have been given a period of incarceration in their sentencing, which presumably they are deemed to have sufficiently served, but should that enable somebody of this ilk and this offending the opportunity to be present in the community again? If they were released outside a correctional facility, under what circumstances might they be released? How does the law provide a framework not only to guide that decision-making but, importantly, to ensure that a government has the tools it needs to keep its community safe?

We are getting to elements of very, very fine judgement for the judiciary about whether a defendant's advanced age or infirmity means that they no longer present an appreciable risk to the safety of the community. That is a difficult judgement that a member of the judiciary will be faced with. It may be that, if an individual is no longer a young, fit, healthy, strapping individual and that they resemble somebody who is very frail or who needs significant assistance to go about their daily lives outside a Corrections facility, that sufficiently reduces the risk of that person reoffending, particularly the type of offence with which we are most concerned here.

But how do you know? How can you know? How can you make that judgement in a way that satisfies not only our own curiosities for that person's capabilities but also what we are all here to do in representing the community's concerns about this person's capacity to reoffend? There are a large number of other considerations, of course, that need to be made, including the capacity of the corrections system to continue to monitor or supervise in an appropriate manner the location and behaviour of somebody who is released under one of these orders but, in particular, the community into which they are released.

For example, for somebody who has been convicted of serious sexual offences against children, what is the locale of their place of residence? Is it within a concerning vicinity of a childcare centre, a primary school or some similar institution where this person released out of a Corrections facility finds themselves in proximity to the sorts of victims against whom he has previously been convicted of offending? That is of significant concern. It is not an element, of course, that this bill necessarily seeks to remedy. The bill seeks to remedy, amongst other things, the matters that I just spoke about. By making these small and slight amendments to this bill, there are concerns about whether it will sufficiently guide the judiciary and, hence, sufficiently protect the community from seeing these sorts of individuals released.

The judgement that the Attorney and her officers have had to make is a very difficult one, again, and it is about whether these changes will be enough compared with the other choice of perhaps coming up with a different change, or a different set of changes, which would allow the judiciary to operate with far, far less freedom and within far narrower strictures when contemplating the release of these individuals or, perhaps, even not being able to contemplate the release of these individuals.

I am sure those opposite me, including the Attorney and the members for Heysen and Kavel, who perhaps have a much deeper knowledge and understanding of the workings of the law and the principles behind it, could readily elocute a significant number of issues of principle and concern that would arise from that contention. However, here we are with a relatively small change in this regard to this relatively discrete but important clause within the bill.

The opposition filed some amendments, I am advised, as of this morning, which seek to provide some further certainty in relation to this clause. I am not sure whether the government intends to do the same. If they choose to do so, that might be something that we might discuss further during the committee stage of the bill. Make no mistake that this is of critical importance to the community. Getting this right is something that we all need to take with the utmost seriousness, as I know the Attorney does. She has publicly resolved and advised us previously that she has taken this matter away to work on with her officers to come up with a change that mediates that balance of interests between the community and the parliament and the interests of the judiciary in retaining some discretion about sentencing.

We look forward to having an earnest and genuine conversation with the Attorney as this bill progresses through this place, making sure that we are all collectively satisfied that we have the balance right in amending the Sentencing Act to ensure that people like Mr Vivian Deboo are not able to unjustly avail themselves of elements of this bill in order to seek release from a correctional facility. We look forward to discussing this further with the Attorney in the later stages of the bill.

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (11:30): I am very pleased to be able to rise and speak in support of the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill. I think this is important work for the house to consider. It is necessary that there be an understanding of community expectations in relation to these matters. Home detention is, of course, a methodology of dealing with sentences and of dealing as well, on a separate basis, with people serving custodial sentences towards the end of their sentences identified by the chief executive of Corrections. That is a separate matter, as indeed is the Humphrys matter, which the member for Lee raised and which, as we eventually heard from him, is not relevant to the bill. The difference between a sentence and release on licence is significant.

I am moved to speak partly because the language around this is whether a home detention order is, as the member for Lee suggested, a release into the community or a different form of custodial sentence. I can understand why both approaches are taken, depending on how you look at the issue. However, it is important to reflect that when we were dealing with this legislation in 2016, after we had dealt with some amendments to the licensing legislation and the supervision orders legislation the previous year, the Labor Party very strongly put a case that home detention was not only of benefit to the system in the very last period of the custodial sentence.

At that stage, it was available to the chief executive of Corrections to provide a home detention in the last six months, or potentially a year, and only for prisoners who were not convicted of sex offences, terrorism or murder by dint of Corrections department policy. The former attorney-general, the former member for Enfield of blessed memory, argued very strongly that it was necessary to have a halfway house sentence available to judges as well, in between a full custodial sentence in a gaol and a suspended sentence.

The argument was put, probably in the parliament, and certainly in briefings to me as I had carriage as shadow minister for Corrections at the time, that in some cases a custodial sentence was being granted where home detention would be a better option and that some sentences, the attorney-general at the time argued, were being made suspended sentences in cases that were of a level that was more serious than community expectations would allow a suspended sentence to be.

The community expected that there be the retribution of a custodial sentence for a certain level of criminal behaviour. As the member for Lee describes, there is also a deterrent aspect of a custodial sentence, but potentially there were people in the judiciary who were choosing a suspended sentence rather than a custodial sentence because they did not believe that the scale of the crime warranted going to gaol. So we have rapidly significantly expanded the opportunity for judges to sentence criminals to a home detention sentence.

It is certainly worth reflecting, given the rhetoric and the politics that have been played over this matter over the last eight months, that the former member for Enfield, supported by his cabinet and the parliamentary Labor Party, argued very strongly for the view at that time that it should be in the court's discretion entirely the nature of the crime that would potentially attract a home detention.

I as the shadow minister for Corrections, and indeed the Liberal Party, through amendments that we moved in the Legislative Council (it may have been the House of Assembly as well), put the point of view that for serious offences—sexual offences, rape, murder and terrorist offences—we did not believe there was any prospect that an appropriate sentence would be a home detention sentence. We sought to exclude from the legislation those sentences being available to a judge to determine as home detention sentences. The parliamentary Labor Party had a different view and voted and argued accordingly. They said it should be entirely up to the courts.

I agree with much of what the member for Lee said in his submission, that there is a tension and a challenge on many of these occasions. The Attorney-General and the courts want to have the opportunity for the courts to make their determinations. It is strange to be in this house now hearing members of the Labor Party advocating a position that is quite anathema to that which they put less than three years ago. The law that was enacted when they were in government does need improvement.

I congratulate the member for Bragg on doing the serious work over the last 11 months to ensure that we now have a bill in this house that will make the necessary improvements. It will ensure that the court has to be satisfied if a defendant's advanced age or infirmity means that they no longer present an appreciable risk to the community. The court must also be satisfied that the interests of the community would be better served by their serving their sentence on a home detention order rather than in custody. That is a very high bar. This needed tightening up. This needed to be dealt with appropriately and properly.

We have been here for only 11 months. It has not been an arduous, tortuous process that has taken years: it has been appropriately timely; nevertheless, it has taken the appropriate time to get the language of the legislation right. We are making the terminology consistent between the three sentencing regimes of home detention orders, intensive correction orders and suspended sentencing.

We are removing the inconsistencies in the precluding offences between the three sentencing regimes. Indeed, we will make intervention programs mandatory in relation to the intensive correction orders. The bill addresses operational issues for cumulative home detention orders and other correction orders and unexpired parole. The bill addresses loopholes where there are breaches of orders and it repeals sections 31 to 35 of the Sentencing Act, which are unnecessary, confusing and an opportunity for lawyers to have extended legal arguments that are not of benefit to the community.

This is an important bill. I commend the member for Bragg, the Attorney-General, for the way she has brought it to the chamber. I think the community expects that someone in the circumstances described by the member for Lee clearly, on face value—I think it will be a very high bar for such a person to even contemplate. We should be making laws at all times in the best interests of our community, noting that there are circumstances that have not yet happened where our laws will be put to the test. What we see now is that laws that were passed in 2016 and 2017 have been and are being put to the test, which potentially bring up issues that may not have been contemplated at the time by members of parliament.

What is worth noting, though, is that the sorts of circumstances in which sexual offenders might potentially apply for home detention were not of great concern three years ago when the Labor Party's point of view was to leave it all to the court. They have modified their point of view and they are entitled to do that. I am pleased that they have and I congratulate them on doing so. In supporting the bill, they can now bring that full circle and remedy those errors.

Ms LUETHEN (King) (11:39): I rise to support this sentencing bill because it is the most important job of government to keep its community safe. I put my hand up to serve and represent my community for this very reason, and every day I am driven by stories my constituents have told me and a clear message they gave me to make changes in this house to make our community safer.

I am so pleased that in the 11 months we have been in this house there have been a number of pieces of legislation that we have moved with the help of our Attorney-General to make our community safer. That is why this piece of legislation is so important. In my electorate, my constituents have told me they want harsher penalties and they want to be safe. There were a number of people who told me of their experiences as children where they were not safe. This is what they shared with me on their doorsteps when asking me to make the community safer.

This legislative change will revamp South Australia's home detention laws, and the changes will help my local community and the community across SA to restore their faith in the state's justice system. My number one priority in representing my electorate is keeping victims and the wider community safe from high-risk offenders. All these legislative changes flagged will bring South Australians closer to having a system they are able to rely on and one that they are able to trust.

The overhaul of the legislation, which allows some serious offenders the ability to serve gaol sentences at home, will be the first of a series of reforms this year as our state government focuses on community safety. We care deeply about our community, the people in it and their ability to grow up and reach their full potential. These legislative changes will particularly clarify access to home detention by serious sex offenders, ensuring there is no doubt about how these laws should be applied. This is most certainly the type of legislation which our community expects all members in this house to agree on and to move through with a speedy passage.

This legislative change will prevent defendants being sentenced for murder, serious sexual offences and terrorism-related offences from being given a home detention sentence. I feel community sentiment is clear. There are some criminals, some convicted criminals, who should not be entitled to consideration of home detention. Our community should not have to worry about the person living next door to them, next door to their schools or down the road. For us, this is fairly simple. Murderers, terrorists and serious sex offenders should not be eligible for home detention. To us, this is completely straightforward.

There is a huge amount of public frustration and public anger about some recent home detention sentences that have been handed out, and this is not something just in this 11 months that we have been working on. We have been working on this for a few years now, so it is our privilege to be able to support and move this legislation because it is what our community wants. Victims and the victims' families views and feelings and the position of the overall community in South Australia at large must be absolutely listened to. We only have to look at our papers from the last few months to see what our community feels about this type of legislation.

Home detention became available as a sentencing option following the commencement of the Statutes Amendment (Home Detention) Act in 2016. It amended the Criminal Law (Sentencing) Act 1988 to establish a home detention order as a sentencing option for a court imposing a sentence of imprisonment. The home detention amendment act removed a requirement for prisoners to have served at least 50 per cent of their non-parole period before becoming eligible for release on home detention and also removed a requirement that prisoners would be limited to spending a maximum period of 12 months on home detention under this scheme.

Since the amendments, the only legislative restriction on eligibility for home detention is that it is not available if the person is serving a sentence of indeterminate duration and has not had a non-parole period fixed. There is no legislative requirement for the offender to serve a minimum period of their court-ordered sentence in prison before they become eligible for release on home detention under this scheme. When we were in opposition we raised concerns about the use of home detention in sentencing and what impact this would have on community safety.

We care about the safety of every person in our community, which is why our bill addresses deficiencies with the home detention, intensive corrections and suspended sentencing processes in a comprehensive way. The bill will address the inconsistencies between home detention, intensive correction and suspended sentencing, fix various operational issues and repeal unnecessary provisions introduced by the Labor government into the sentencing process.

It was reported on the ABC news on 20 December 2018 that, since new laws came into effect in July 2014 to allow South Australian police to track serious sex offenders, there have been 24 convictions for breaches and a further 12 charges before the courts. Ten of the 30 criminals subjected to GPS monitoring have had their order suspended because they have been locked up again. One notorious child sex offender who had breached his paedophile restraining order more than 50 times in 16 years was one of the first to be fitted with a GPS tracking device. I feel community sentiment is absolutely abundantly clear, and there are some convicted criminals, like the ones I was just talking about, who should not be entitled to consideration of home detention. For us, it is that simple.

What we are doing is tightening up section 71 of the Sentencing Act by making it clear that, firstly, the court has to be satisfied that the defendant's advanced age or infirmity means they no longer present an appreciable risk to the community and, secondly, the interests of the community would be better served by the defendant serving the sentence on a home detention order rather than in custody. We are making the terminology consistent between the three sentencing regimes of home detention orders, intensive correction orders and suspended sentencing. While the intent is the same in the three, recent changes have not been replicated throughout.

We are removing the inconsistencies in the precluding offences between the three sentencing regimes. At present, for example, the legislation does not preclude a suspended sentence being given for a sexual offence, but home detention is precluded unless special reasons exist. The bill would make these regimes consistent and, to use the above example, close the loophole allowing sexual offenders to get suspended sentences in line with the home detention regime. We will address operational issues for cumulative home detention orders and ICOs and unexpired parole. Currently, it is possible for a court to order imprisonment to be cumulative upon serving home detention or intensive correction. This will be removed.

I am hoping we have made it very clear—as clear as possible—that this Marshall Liberal government and this parliament are saying that really dangerous offenders, people who have repeatedly or seriously hurt other people in our community, will not get home detention, which could put our community members at risk, and that these criminals will get harsher sentences in the future. Our community expectations on this issue are very clear. This bill deserves bipartisan support. This bill deserves safe passage through this house. I hope that this opposition sees sense, puts the safety of our community first and supports the bill because it is in the best interests of every South Australian. I commend the bill and thank the Attorney-General for bringing it to the house.

The Hon. C.L. WINGARD (Gibson—Minister for Police, Emergency Services and Correctional Services, Minister for Recreation, Sport and Racing) (11:49): I rise to speak on the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill 2019. I also commend the Attorney-General for addressing the concerns raised widely, in both the parliament and the media, in such a quick manner. The member for King made some outstanding points in her contribution, as did the member for Morialta. I was very interested to hear the member for Lee's contribution as well, because, across the board, we want to keep people as safe as possible in our community. That is the community expectation that sits before us as a parliament and as members of this place and it is something that that we are very focused on.

It is fair to say that the former government muddied the waters when it came to home detention sentencing for sex offenders. This critical area of the law, rather than reassuring the community of their safety, has led to confusion and concern. The member for Lee talked about previous iterations of this legislation that potentially created that position. The government's bill will repeal unnecessary provisions in the Sentencing Act introduced by the former Labor government. These provisions include taking matters 'into account' and have created the type of uncertainty that I was discussing a few moments before.

This government is committed to community safety and ensuring that, when a court is sentencing an offender, there are tight restrictions on home detention options. Again, that has been pointed out by members before me. We know that home detention does have its upside and does provide great opportunities to help with rehabilitation and help people serve their time and get back into and contribute to the community.

We know that is very important, but at the same time we must be conscious of ensuring that we protect our communities from people who have done the wrong thing and potentially have the opportunity to do the wrong thing again. It is something that we in this place are very conscious of. Again, I commend the Attorney for bringing this legislation forward very quickly. Bearing in mind that we have been in power for not even 12 months, she has moved to bring forward sensible legislation that will help keep our community safe. That is what we need to be focused on.

As the Attorney outlined in her second reading explanation, there are a number of ways an offender can serve their sentence at home. Home detention is available as a court-ordered sentence, as a condition of an intensive correction order or as a suspended sentence in certain circumstances. I think everyone in this house will agree that there is little benefit in genuinely aged or infirm offenders entering our corrections system, particularly when the court finds the type of offending is not so serious that imprisonment is required.

I think we can all agree that older prisoners require more care and more expense. Where there are legitimate and well-considered reasons to sentence an aged or infirm person to home detention, as Correctional Services minister I can certainly see some benefit in that. That is what the Attorney-General has done with this legislative change. I think it is pointed out in section 71(4). I will talk more about that in a few moments' time.

We have the ability to house and care for older offenders within our current corrections system. The high dependency unit at Yatala and the specialised aged and infirm unit at Port Augusta Prison can facilitate the needs of older prisoners. I have been to these two prisons and had a look at the set-up and operations at both Yatala and Port Augusta Prison. May I say that the staff who work there and the set-up they have give very good care to people in those facilities. Port Augusta Prison has a dedicated facility that manages the needs of aged prisoners.

I want to make it clear that we have the ability to house and manage these people, as I have said. Where their type of offending is so serious that the court feels they are a risk to the community, they can be kept with appropriate health care, security and protection for our community. Those facilities do exist. That is a key point. Despite the former government's poor management of our prisons, we can do this and we can house these dangerous prisoners.

When I came into this portfolio one of the first things raised with me was that we would have more prisoners than prison beds by 2020, and that is why, in the last budget, we rolled out our Better Prisons Program. We were very intent on putting more prison beds into the public system, more prison beds into Yatala and more prison beds into the Women's Prison—170 more prison beds in Yatala and 40 more prison beds in the Women's Prison, a total of 210 extra beds into our public prison system. That will be very well received. We want to make sure that when we are putting these people into prison we have the right custodial environment to ensure they are being kept secure, that they are being looked after, of course, but also that we have a place to house them.

The current position in the law is that a home detention sentence can only be granted to a person who is being sentenced for a serious sexual offence if the court is satisfied that special reasons exist: namely, that by reason of the person being of advanced age or due to infirmity they no longer present a risk to the community and the interests of the community as a whole are better served by a home detention sentence.

As I mentioned a few moments ago, we are changing section 71 of the Sentencing Act, the section that deals with the special reasons test, such that an offender must be permanently infirm to be considered for a home detention order and that the court must be satisfied both of this infirmity and that there is no appreciable risk to the community. Currently, the test is one or the other, as argued in Deboo.

We can see, in the legislation put forward by the Attorney-General, that section 71 is one of the key focuses of what we are looking at here. Clause 7(4) provides:

Section 71(4)—delete subsection (4) and substitute:

(4) The following provisions apply for the purposes of subsection (2)(b)(ii)(B):

(a) the court cannot be satisfied that special reasons exist for the purposes of subsection (2)(b)(ii)(B) unless the court is satisfied that—

as the member for King pointed out—

(i) the defendant's advanced age or permanent infirmity means that the defendant no longer presents an appreciable risk to the safety of the community (whether as individuals or in general); and

(ii) the interests of the community as a whole would be better served by the defendant serving the sentence on home detention rather than in custody;

They are a couple of the key points. I am sure the intent with this was to make sure that, in the situation we are talking about, those people are kept locked up and our community is kept safe.

The member for Morialta, in his speech, made a couple of good points. I was in this place in 2016 when the then Labor government, now opposition, moved to give a lot more freedom to the courts to determine what was appropriate as far as home detention was concerned, and the member for Morialta made some very good points as well. I remember that at the time our side of parliament raised some very serious issues about the ability of people who had committed murder or serious sexual offences or other such serious crimes to be excluded from home detention. The government of the day, the Labor Party, pushed forward saying that, no, they wanted carte blanche for the courts to be able to decide who went on home detention and, really, pushing more people out into home detention.

It is a fine balance. We want to make sure that people are rehabilitated, that people who do the wrong thing at a criminal level pay their dues to society: as they say, you do the crime you do the time. We want to make sure that people do return what is owed to the community. At the same time, when and where possible we want to make sure that people have a chance to be rehabilitated, to get back out in the community and to contribute back to society as meaningful members of that society. There are some people who need to have a much closer watch kept on them, and that is exactly what this bill is intended to do.

I stress the point that I want to commend the Attorney-General for the work that she has done to make sure that we have corrected this legislation—legislation that was left a little bit loose by the previous government from a number of iterations that were rolled out—and that we keep the people who need to be kept in custody in that place.

I want to make sure that this parliament is aware that home detention as an alternative form of custodial sentence that can be ordered by the courts in the appropriate circumstances for a number of reasons. We know that the courts can do that and I can run through them: court-ordered home detention; release-ordered home detention, which is another form of home detention; extended supervision orders; intensive bail supervision; and intensive correction orders. They are just some of the others whereby home detention can be applied.

While the government is restricting the types of offenders who are eligible to serve their sentences on home detention, the proposed changes are in line with valid community concerns and expectations. Again, I stress the point that that is what this bill is here to do: it is to make sure that we understand home detention has its place, but these changes will keep people behind bars who need to be.

On a positive note, in my role as the Minister for Correctional Services, I am aware of a large number of offenders who do the right thing and successfully complete their sentences on home detention under strict monitoring by the Department for Correctional Services. I would like to take this opportunity to commend the Department for Correctional Services and the staff there who do an absolutely outstanding job when people are on home detention. We talk about electronic monitoring but there are a number of other methods and mechanisms at work to make sure that the net is there and that people know that if they have restrictions on where they can be and where they can go that they are enforced. The team does a very good job in making sure that people do the right thing.

While the community might rightly expect people like Mr Deboo and other sex offenders to serve their sentence in prison, home detention plays an important role in the overall suite of sentencing. However, in this case—and I refer back again to section 71 that the Attorney has outlined here—we know that the community expectations are there and that they are real, and we want to make sure that those community expectations are met. That is why the Attorney has brought in these amendments and that is why we are very supportive of them—to make sure that our community knows that people who do the wrong thing will be given the appropriate punishment.

People who operate in this space, in particular around sex offences, will be held to account, will be called to account and will receive the appropriate punishment. We do not want any loopholes. We do not want any of the confusion that has arisen with this piece of legislation in the past. The Attorney has put it forward and made it abundantly clear where the line is drawn, and we want to make sure that it is as clear as possible to make sure that the people who have done the wrong thing will be held accountable. With that, I commend this bill to the house and thank the Attorney for her marvellous work in bringing this matter to this parliament.

Ms STINSON (Badcoe) (12:03): I rise today to speak on the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill. The catalyst for this bill, and of course for Labor's private members' bill, which was the Sentencing (Home Detention) Amendment Bill and which preceded this bill, was a bid by convicted paedophile Vivian Deboo, who last year applied to serve home detention instead of a period of time in custody.

Deboo pleaded guilty to multiple counts of indecent assault and gross indecency against two brothers in the 1990s. This crime has had an impact on my community. I have been in communication with Deboo's two victims and, of course, heard their harrowing account, as many of us have through the media. Deboo's actions and offending are sickening. The only place for Deboo and those like him is behind bars. That is the view of my community and many of those I work with as the shadow minister for child protection.

Last December, Deboo's application to serve his sentence at his home was denied and he was gaoled for more than six years. We are now awaiting the outcome of his appeal. Deboo's bid for home detention gained wide public awareness because of the brave actions of two victims, two brothers, who attended court wearing masks.

It was a novel but intelligent and well-planned approach by these victims to shine a light on Deboo's disgusting crimes, the horrible lifelong impacts of child sexual abuse, and of course to press for legislative change. I would like to take the opportunity to applaud their efforts in gaining the attention of the media and all of us here, and making sure that their message was heard loud and clear. The public's conscience needed to be shocked, and it was.

As a former court reporter myself, and as former chair of the Victim Support Service, I know the power of victims' voices, and this is a great example of when victims speak out in a very intelligent and well-planned way, as these brothers have, that they can move mountains, it can lead to us here contemplating new legislation and a light being shone on the absolutely heinous crimes of child sex offenders. After sentencing, one of the brothers said:

My genuine hope is that this gives other survivors of this kind of abuse the empowerment to talk and to share their story.

He continued on, saying:

We know the whole community's behind us, and I really felt like, walking in here today, win, lose or draw, we'd won.

I say to you: 'You have won.' The fact that we are here, that Labor put forward a private member's bill quite some months ago now addressing this issue, and that this bill has now been brought to the parliament, shows the power that those victims have and that all victims have to raise awareness about these issues and to press for change. Shockingly, the abuse against the two brothers was not isolated. In an earlier case, Deboo received a two-year non-parole period in 1996 for some of his crimes, but the victims to whom the current case applies did not come forward until around 2015.

Paedophiles are heinous criminals and, put simply, they do not deserve the option of court-ordered home detention. Labor has filed an amendment to toughen this bill in accordance with the wishes of communities like mine. There should not be exemptions for some child sex offenders, and in this bill, unfortunately, the Liberal rhetoric does not match what the bill actually says.

We just heard the Minister for Police talk about loopholes, and there is a pretty big loophole here in terms of the exemptions that might be available to ageing convicted paedophiles. There are other sex offenders in our judicial system who, too, will be seeking home detention instead of serving a gaol sentence. Try telling a victim that their abuser should not be locked up because they are too old. Victims are tormented for years and it is hard for them to understand why a convicted abuser should be allowed to continue to live in the comfort of their own home.

That is why we on this side are calling on the Marshall Liberal government to support Labor's amendment and allow swift passage of this legislation—to provide peace of mind not only for victims of sexual abuse but for our community in general, including my own community of Badcoe. There is certainly some urgency here, as May, I believe, is the next court date.

As shadow minister for child protection, I will be doing everything in my power to ensure that paedophiles feel the full force of the law and that they serve their sentences behind prison walls, which is where they deserve to be. It is in everyone's interest to ensure that this bill is passed with Labor's amendment, and I look forward to, and hope for, the support of the Liberal government in that.

Mr PEDERICK (Hammond) (12:08): I rise to support the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill 2019. I truly do applaud the Attorney-General for bringing this legislation to this place within our first year of forming government. I heard the words from the opposition, but they had 16 years in government to fix this and did not.

We are doing this because concerns have been raised regarding the use of home detention in sentencing and what impact this has on community safety. With that, the Marshall Liberal government does take community safety very seriously, which is why our bill addresses deficiencies with the home detention, intensive corrections and suspended sentencing processes in a comprehensive way, rather than adopting the former Labor government's media-driven, bandaid approach.

The bill will address inconsistencies between home detention, intensive correction and suspended sentencing. It will also fix various operational issues and will repeal unnecessary provisions introduced by the Labor government into the sentencing process. In particular, we are tightening up section 71 of the Sentencing Act, an issue directly related to the Deboo matter. We will be making it clear through this part of the legislation that the court has to be satisfied that the defendant's advanced age or infirmity means they no longer present an appreciable risk to the community and that the interests of the community would be better served by them serving the sentence on a home detention order rather than in custody.

We will also be making the terminology consistent between the three sentencing regimes of home detention orders, intensive correction orders and suspended sentencing. While the intent is the same in the three, recent changes have not been replicated throughout. We will also be removing inconsistencies in the precluding offences between the three sentencing regimes. At present, for example, the legislation does not preclude a suspended sentence being given for a sexual offence, but home detention is precluded unless special reasons exist.

The bill would make these regimes consistent and, to use the above example, close the loophole, allowing sexual offenders to get suspended sentences in line with the home detention regime. The purpose and eligibility for intensive correction orders presuppose that intervention programs will be undertaken; however, imposing this condition under an intensive correction order is discretionary.

The bill will make undertaking intervention programs mandatory in these intensive correction orders and will also address operational issues for cumulative home detention orders, ICOs and unexpired parole. Currently, it is possible for a court to order imprisonment to be cumulative upon serving home detention or intensive correction, which will be removed. Further, where a fresh sentence has been ordered for a crime committed while a defendant has been out on parole, the bill will allow that the balance of the unexpired parole to be served on home detention or intensive correction, if appropriate, rather than returning to custody.

This legislation is partly about addressing loopholes where breaches of home detention orders and intensive correction orders have occurred and the consequences for a breach of a suspended sentence result in the offender having to serve the entire sentence. Conversely, when a home detention order or intensive correction order is breached, the offender is only required to serve the remainder of their sentence after discounting the total period spent in compliance with the terms of their order. Policy reasons exist for this difference, but courts have deemed the breach to occur at the point of determination rather than when the breach occurred. This could be magnified by continuing to breach conditions of the order while proceedings are underway. This will be addressed by the bill.

The bill repeals sections 31 to 35 of the Sentencing Act, which are unnecessary, confusing and could result in protracted legal argument. They purported to create a framework by which a court could take into account further offences in sentencing for a principal offence and receive a higher penalty and have no conviction recorded for the lesser offences. Courts have discretion over the process, and there appears to be no benefit from these provisions.

I want to discuss some of the legislative history of home detention, intensive correction and suspended sentences schemes. In regard to home detention, this became available as a sentencing option following commencement of the Statutes Amendment (Home Detention) Act 2016, which I will refer to as the home detention amendment act, which commenced operation on 26 May 2016. It amended the Criminal Law (Sentencing) Act 1988 to establish a home detention order as a sentencing option for a court imposing a sentence of imprisonment.

The home detention amendment act amended the Correctional Services Act, which already made provision to enable the Chief Executive of the Department for Correctional Services to permit a prisoner to be released from prison to serve a portion of their sentence on home detention in certain circumstances. This is often referred to as back-end home detention, and the home detention amendment act removed a requirement for prisoners to have served at least 50 per cent of their non-parole period before becoming eligible for release on home detention. It also removed a requirement that prisoners would be limited to spending a maximum period of 12 months on home detention under this scheme.

Since these amendments came into play, the only legislative restriction on eligibility for back-end home detention is that it is not available if the person is serving a sentence of indeterminate duration and has not had a non-parole period fixed. There is no legislative requirement for the offender to serve a minimum period of their court-ordered sentence in prison before they become eligible for release on home detention under this scheme. There is also no legislative prohibition restricting offenders who have committed defined types or categories of offences from being administratively released by the Chief Executive of the Department for Correctional Services on to home detention, even in circumstances where the court has not been able to order home detention or where the court could have ordered home detention but considered it inappropriate to do so.

However, there are ministerial limitations which set out offence exclusions. The initial inclusion of home detention as a sentencing option in the Criminal Law (Sentencing) Act (the CLSA) in 2016 maintained wide judicial discretion as to the imposition of a home detention order. The court was prohibited from making a home detention order if the defendant was being sentenced to a period of imprisonment to be served cumulatively or concurrently with another term of imprisonment; however, there were no specific offences or offence categories precluding an offender from consideration.

The Sentencing Act repealed the CLSA and the provisions relating to home detention, as introduced by the home detention amendment act, generally, but made some fairly significant changes to them. These included restrictions based on but not identical to provisions that had been recently enacted to curtail the availability of suspended sentences based on offence type and categories. In addition, the Sentencing Act introduced specific offence exclusions and specified that a home detention order would not be available to defendants who were liable to serve a sentence of indeterminate duration for murder, treason, offences involving terrorist acts or other offences in respect of which an act expressly prohibits the reduction, mitigation or substitution of penalties.

The Sentencing Act specified that those being sentenced for a serious sexual offence could not receive a home detention sentence unless special reasons existed. It also made amendments to the provisions relating to the conditions of home detention, including a requirement for electronic monitoring and changes to the provision relating to the liberty to attend remunerated employment.

The Sentencing Act also introduced for the first time intensive correction orders. The Sentencing Act states that the purpose of an intensive correction order is to provide the court with an alternative sentencing option where it is imposing a sentence of two years or less and it considers there is a genuine risk that the defendant will reoffend if not provided with a suitable intervention program for rehabilitation purposes. As in the case of home detention, the court must first have concluded that a suspended sentence is not appropriate and also the court must find that there is good reason to permit the offender to serve their sentence in the community, albeit subject to intensive correction.

For the purpose of finding good reason, the legislation provides that the court may determine that, even though a custodial sentence is warranted and there is a moderate to high risk of reoffending, any rehabilitation achieved during the period that would be spent in prison is likely to be limited compared to the likely rehabilitative effect if the defendant was to spend that time in the community subject to intensive correction; hence, the focus is intended to be upon rehabilitation.

Unlike both suspended sentences and home detention orders, there are no legislative restrictions on the eligibility for an intensive correction order by reference to the type of offence committed. There is some argument then as to whether someone could be ineligible for a suspended sentence due to committing a precluding offence but still be considered to be eligible for an intensive correction order.

In regard to suspended sentences, the availability to order that a sentence of imprisonment be suspended was significantly amended in late 2013 and again in 2014 by the Criminal Law (Sentencing) (Suspended Sentences) Amendment Act 2013 and the Criminal Law (Sentencing) (Suspended Sentences) Amendment Act 2014.

The ability of the court to suspend a sentence of imprisonment was restricted by these two amending acts for the first time by setting out a range of offences for which a sentence may not be suspended at all, may not be suspended if the sentence is over a certain length and a range of offences whereby the sentence may not be suspended if the person has previously received a suspended sentence for an offence in the defined category.

There is also specific provision in the Sentencing Act for the court to require a home detention condition as part of a suspended sentence bond in circumstances where the decision of the court to suspend the sentence has been made on the ground that it would be unduly harsh for the offender to serve any time in prison by reason of ill health, disability or frailty. This provision was carried over from an identical provision existing in the CLSA and thus predates the provision specifically providing for home detention.

What we are doing with this legislation today is making sure that we keep our community safe and our children safe because what these sexual predators have done are truly horrendous crimes. I salute the bravery of people who have come forward to not only report these crimes but appear in court to tell their stories so that they can get convictions in place. They have had to live through the horror once and then had to live the horror again. However, unless they do that, we do not get the outcome of locking up these predators and making sure that we can keep our community safe.

When it is in place, our aim with this legislation is to have further safeguards to make sure that some of the most vulnerable people in our communities are kept safe and that some of the most terrible criminals are kept behind bars, where they should be. With those words, I support the bill.

Dr HARVEY (Newland) (12:24): I rise today to support the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill 2019. I am sure that we are all aware of the serious concerns raised in relation to the use of home detention and how it may affect the safety of our communities. Ensuring the safety of South Australians is one of the most important roles that the government plays and it is one that the Marshall Liberal government takes very seriously.

Certainly, as a local member, members of the community frequently raise with me concerns about community safety and the importance, in their eyes, of seeing people who have committed crimes then having to meet adequate consequences as a result. As elected members, our role is to ensure that community expectations and, importantly, community confidence are maintained in our systems whilst at the same time ensuring that we are not overreaching into judicial discretion.

The bill comprehensively addresses deficiencies with the home detention, intensive corrections and suspended sentencing processes. It addresses these issues in a careful and considered manner. This is in stark contrast to the Labor Party's approach, which is driven mostly by media headlines. The bill tightens up the provision in section 71 of the Sentencing Act, which was the core issue in the Deboo matter, by specifying that not only must the court be satisfied that the defendant's age or infirmity is such that they no longer present a risk to the community but that it must also be satisfied that the interests of the community would be better served by the sentence being served on a home detention order, rather than as a custodial sentence.

As the Attorney-General outlined in her second reading explanation, as to whether the court must be satisfied that both or only one of those limbs had fallen under a cloud of uncertainty importantly, this bill removes any doubt that the court must be satisfied on both limbs. This is an important amendment, not simply for the reason that it makes clear a point of law but that, in doing so and in tidying up the law, it increases the confidence that South Australians have in our legal system.

Importantly, the bill removes inconsistencies between offences that are precluded from receiving home detention orders, intensive correction orders and suspended sentences. This is a common-sense amendment, which, again, aside from being a sensible change in the law itself, is a measure that increases public confidence in the way offenders are sentenced. As someone who has entered this place without a background in law—I often say to people that, in my previous life, if I had been dealing with lawyers then I was probably having a bad day—it is difficult for me and many others to understand how it came to be that a person convicted of a sexual offence is able to receive a suspended sentence but is precluded from receiving a home detention order.

The bill clears up this discrepancy by increasing consistency between the offences that are precluded from receiving a home detention order, an intensive correction order or a suspended sentence. For example, where an offender was previously able to receive a suspended sentence for a sexual offence but not a home detention order, they will now no longer be able to receive either. It is not difficult to see how a discrepancy such as this would erode a degree of public trust in our laws when uncovered. The fact that a person could be either imprisoned or released into the community but not given a home detention order, which would seem to a regular South Australian to be a more severe penalty than a suspended sentence, simply does not make sense.

I am pleased that the government is addressing this issue and I commend the Attorney-General for making this common-sense change. Similarly, an intensive correction order would suggest that intervention programs would be undertaken. However, the imposition of a condition requiring that intervention programs be undertaken as part of an intensive correction order is discretionary. The bill addresses this gap and makes the undertaking of an intervention program mandatory if an intensive correction order is made. An important factor in relation to public safety is ensuring that the public do indeed have confidence in the ability of our laws to keep our community safe.

This bill improves public safety and improves confidence in our laws. I congratulate the Attorney-General on this bill and particularly on her thorough and considered approach to this important area of law. I commend the bill to the house.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (12:29): I thank all members who have made a contribution to the debate in respect of the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill 2019 for their very thoughtful consideration of the matters that have been raised and the ills that the bill proposes to address.

I make a couple of observations that I hope will put some perspective into what we are doing here in relation to the bill. Firstly, I do not promise that the bill is a panacea of absolute consideration of all matters to deal with sentencing. It is not. It is designed to address a number of deficiencies, which have been brought to our attention, in as comprehensive a way as we can to ensure that there is some consistency of approach.

There are a number of other aspects in relation to sentencing that are under consideration by the government, one of which is well known and that is the question of sentence discounting, on which I am expecting a report from Mr Brian Martin QC, former chief justice of the Northern Territory, who has been commissioned by the government to provide us with a review on that matter. For those of you who are new in the house, that relates to questions of significant percentage discount given to people who plead guilty early and also significant discounting available on sentences for those who help the police get someone else into custody, which is commonly called the supergrass provision, which means if you squeal on someone else you have a chance of getting some discount.

These things are a matter of continuous review. We need to do the best we can in here to make sure that we have a balance between respecting the separation of powers in the role of this parliament and the role of the judiciary, and the discretion that they have in relation to the application of the laws that we make here and that they implement, together with community expectation and how we best protect the community.

Sentencing has always been a vexed issue as far as the public is concerned and it becomes particularly vexed when particular groups become victims themselves. How effective they might alone be in taking up the challenge depends upon their capacity to articulate their plight and the sympathy of media and other public outlets to support it. Let me say that in the time I have had anything to do with the legal world, which is largely in the last 35 years, I have seen the plight and pain of those who are victims of crime, particularly serious crime. They have a universally consistent position—that is, they are outraged at what has been done to them or the person they love.

They have different views on how the person or persons found guilty should be dealt with, and there is a varying degree of forgiveness that comes in that category, but there is no question that they are incensed by what has happened to them or members of their family. They want something done about it, in different variations, of course, as to the level of sentence that might apply to these people, but they want something done about it because they do not want other people to suffer in those circumstances, whether they be the families who have been victims in other famous cases or, more recently, in the Deboo case that has been referred to in this debate.

I expect the family of the little girl who was murdered in the 1950s on the West Coast, for which Maxwell Stuart was subsequently the last convicted person sentenced to hang in South Australia, was equally outraged, whether Mr Stuart was guilty or not. As it turned out, after a royal commission and, preceding that, trips to the Privy Council and appeals, his conviction was quashed. Nevertheless, he served some time in prison. The pain of loss experienced by people as a result of their little child being a victim is forever with them.

This is a very painful exercise and so we here have to try to address the balance, as I have said. Working with the previous government in the development of the Sentencing Act 2017, which is now the statutory tablet to apply in these cases, three new themes came through. Forget about Maxwell Stuart's era. We had been through eras of capital punishment, and that no longer applies in South Australia. We have contemporised different forms of sentence.

The introduction of community service orders was quite pioneering 30 or 40 years ago, but fast-forward to 2016 and we are dealing with three new paradigms. These were important, and we supported the former government in dealing with those. One was to put in the statute a primary obligation ensuring that public safety was the paramount consideration. That was not the word that was used, but it was expressed in the new law, which was quite new, as follows: 'The primary purpose,' as it is described, 'for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general)'. Public safety had been a consideration, but this was the first time it was to be at the level of a primary purpose.

Another provision in the act complements that but remains as 'Secondary sentencing purposes'. Some are new, and they include the following:

(1) The secondary purposes for sentencing a defendant for an offence are as follows:

(a) to ensure that the defendant—

(i) is punished by the offending behaviour; and

(ii) is held accountable to the community for the offending behaviour;

(b) to publicly denounce the offending behaviour;

This was a new expression ensuring that there was punishment but also that there was a level of accountability to the community, generally. The act goes on to provide in section 4(1):

(c) to publicly recognise the harm done to the community and to any victim of the offending behaviour;

(d) to deter the defendant and others in the community from committing offences;

(e) to promote the rehabilitation of the defendant.

Paragraphs (d) and (e) have been around for a long time, but (c) was to 'recognise the harm'. This really just put in statutory form what had already developed as a practice, and that was to hear from the victim through a certain statement, sometimes in writing, sometimes orally and sometimes through a representative, before sentence was passed. This was a statutory, contemporary assessment of what are really important principles, but all of them had to sit behind the primary purpose given to number one, which was public safety.

The second point about this new set of laws is in regard to the procedural obligations. They are also now set out in the act, largely in division 2, and they include that the prosecutor has to provide the particulars of the victim's injury. Again, this had been developed by practice. It is not to include the disclosure of this information if the victim does not consent to that, or is of an age where they do not consent to that, but it is an important statutory imposition.

The victim impact statements, which I have referred to, can be made either orally or in writing. There is the codification by the obligation to consider community impact statements, and I remind members of this. That can be done either directly or via the prosecutor or the Commissioner for Victim's Rights, who may, if they think fit, provide the sentencing court with (a) a written statement of the effect of the of