Home Invasions: Criminal Trespass Bill Seriously Flawed

	Extract from Hansard Legislative Council 16 November 1999

Ian Gilfillan Australian Democrats Member of the Legislative Council		Parliament Index 1999 Spring Session Index Browse by Subject About the SA Parliament Hansard on line

The Hon. IAN GILFILLAN: The Democrats have not rushed into debate on this issue. We have taken note of the petition collected by Mrs Ivy Skowronski and of the rally on the steps of Parliament House last month. We note that home invasion is and always has been against the law. We note that, depending upon the definition of the offence, it already attracts a maximum gaol sentence of life imprisonment. Therefore, we are not of the view that if there is to be any change in the law it needs to be accompanied by any great haste. We have noted also the contributions on this bill of the Hons Nick Xenophon, Terry Cameron and Trevor Crothers. As they pointed out, this bill does not address the causes of crime such as we might do if we looked seriously at the way we respond to the illness of drug addiction.

In past years, criminal elements seeking access to cash to support a drug habit or for any other reason used to target banks and building societies. When those institutions tightened their security, desperate robbers moved on to target service stations. Service stations too became harder targets installing security screens and time delay locks. In recent years, the soft targets for robbers have been corner delis and now, perhaps, to some extent residences.

As previous speakers have pointed out, we will not remove this problem by creating laws which impose tougher penalties or even by turning our houses into fortresses. If they are desperate enough, criminals will attack the ultimate soft target: people on the streets. I note that that has occurred in the past few days. A much more effective strategy is to address the root of what causes criminal behaviour.

I believe that this bill will do no good at all to prevent crime. It merely makes changes in the way we classify some offences. Some changes are obviously warranted, but others will only create arguments among lawyers or criminal law academics. For instance, as the Hon. Terry Cameron has observed, this bill decrees that offences committed in homes are necessarily more serious than offences committed in workplaces or on the street. I accept that in many, if not most, cases they will be more serious. We are all entitled to believe that our home is our haven. There is a sense of outrage and vulnerability when our privacy and intimacy is violated, but depending on the circumstances there may be similar feelings of indignity associated with other crimes as well.

Not long ago, the Attorney-General's department issued two documents on the topic of home invasion. The first was an analysis from the Office of Crime Statistics (released on 31 August ). It showed that, depending upon your definition, the number of home invasion offences was on the rise in South Australia. Then in October the Attorney-General released a discussion paper on home invasion which also included three draft bills. On the cover of this paper it is stated:

I welcome comments from members of the community on the matters raised in this paper and look forward to receiving them. All submissions will be properly considered before a course of action is determined by the government. Comments and inquiries should be sent to the office of the Attorney-General by Monday 11 November.

The ink was hardly dry on this paper before a course of action was determined by the government. Within a week (seven days) of issuing this discussion paper and inviting public comment, two bills were endorsed by cabinet and declared to be government policy. Obviously, this government was not interested in any public submissions; it judged what it wanted. It wanted immediate action, and the perception of acting swiftly in response to a crowd on the steps of Parliament House-and incidentally to some tirades, particularly on late night radio-was regarded as more important than getting any advice or submissions on any draft bill.

Public consultation? What public consultation? This promise of `all submissions will be properly considered before a course of action is determined by the government' was meaningless, totally ignored, useless, a charade, a trick, a fraud on anyone who bothered to take the government at its word and respond with meaningful suggestions, criticisms or potential improvements. For that reason, the Democrats did not even wish to enter the debate on these two home invasion bills until after 11 November. We took the view that if anyone had made the mistake of taking the government at its word and planned to respond with suggestions or comments, their views could be taken into account, if not by the government then at least in due course by the parliament.

Our offences of break and enter, robbery and burglary are archaic-they have existed for 100 years or more and could do with updating and clarification-but they are not so seriously deficient that we cannot afford to wait for three weeks to see if any member of the public has some thoughtful comment to make on how the law might be improved. If we are changing a law that is 100 years old and all the advice that we have on which to rely is that considered by the Liberal cabinet, as it struggles to cope with a crowd on the steps of Parliament House and a sensationalist media, then that sort of knee-jerk politics is likely to lead to overlooking some important considerations. How true and how prophetic that has proved to be.

I am of the view that some important considerations have been overlooked. This bill would abolish the offence of burglary and replace it entirely with serious criminal trespass. Amongst the changes that this would cause are the following:

1. Burglary as presently defined can occur only at night (9 p.m. to 6 a.m.). In contrast, serious criminal trespass could occur at any hour. This seems sensible and an overdue reform of an archaic provision.

2. Burglary as presently defined can occur only after a break and enter or a break-out of premises. In contrast, serious criminal trespass does not require any breaking-that is, no locks need to be forced or windows broken, etc.

3. Serious criminal trespass as defined in this bill does not even require unlawful entry: entry can be lawful. In other words, you can be invited onto premises but, if permission is subsequently revoked, you may become a serious criminal trespasser if you have an intent to steal, damage or interfere with property or injure a person while you remain.

4. Burglary as presently defined has no aggravating circumstances which automatically lead to higher penalties. There is already a maximum penalty of life imprisonment for any burglary conviction. Serious criminal trespass, on the other hand, can be committed with aggravated circumstances such as possessing an offensive weapon or being in company with other persons.

It seems sensible to spell out these aggravating circumstances and provide for tougher penalties when these circumstances apply. However, there is a risk that in creating all these new legal pigeonholes we are becoming too prescriptive, and consider this hypothetical example.

The Hon. IAN GILFILLAN: It does not matter; he can read it later. After a marriage is over, a jilted wife goes to her husband's new home at midday on Saturday to confront him about a toaster which he has taken from the former matrimonial home. The wife believes that the toaster is hers but in fact it belongs to the man. The wife takes along their 10 year old daughter for emotional support. The husband invites them both in to discuss the possession of the toaster but, because no agreement is reached and tempers are being frayed, the wife is asked to leave. She refuses and, what is more, makes up her mind to take the toaster if she can. Police are called and the wife is charged with serious criminal trespass-in fact, an aggravated offence, that is, home invasion.

Under the bill we are debating all the elements of an aggravated offence of serious criminal trespass or home invasion are included in that scenario that I have just portrayed. There is a trespass: she is refusing to leave. Under proposed new section 168 and the common law, there is no need for forced entry before there is a trespass. If someone merely remains in place, it is sufficient.

Secondly, there is intent. She wants to take the toaster which is not hers. Under proposed new section 168, the offence of trespass becomes serious criminal trespass if you have an intent to commit larceny or other offences. Thirdly, it is in a place of residence. Under the proposed new section 170 that makes it more serious than in a non-residential building; and, finally, she is in company with one or more other persons, her own 10 year old daughter. Under proposed section 170 it is an aggravated offence if a serious criminal trespass is committed in company with one or more persons. I presume that in such a case a court would not impose the maximum penalty of life imprisonment. That is why we give discretion to judges in these matters-

The Hon. IAN GILFILLAN: There is an interjection that she would not be guilty, but certainly in the bill that has been presented to this Council it is a reasonable legal position to take the argument that I put up; that is, that this person would be vulnerable and would be at risk of being found guilty. However, she probably would not get the maximum penalty. That is why we give discretion to judges in these matters and there is an enshrined principle in our legal system, namely, the separation of powers. The judges are there; they take all the facts and I know-maybe it is a presumption to say so in this place-that that is one of the cherished beliefs that the Attorney-General has, and that is why I admire the way he has fulfilled his role as Attorney-General in this state.

We can be left to wonder what would happen to such a woman if we also passed the bill which is the companion to this one, namely, the Criminal Law (Sentencing)(Sentencing Principles) Amendment Bill, with its presumption of imprisonment for all home invasions. I will deal with that bill later. In the meantime, let us consider whether any element of the aggravated offence of serious criminal trespass needs to be rethought in the light of the hypothetical example I have raised.

I invite the Attorney-General's response to this option: would it be better to confine the offences at the serious end of the spectrum to those which occur after a forced or unlawful entry, as distinct from an invited entry? It seems to me that having invited the person into your home ought to be a circumstance which makes their continued presence, even with intent to commit an offence, an offence less serious than an occasion when entry is forced or otherwise unlawful. This is especially the case where a property owner willingly invites more than one person onto premises at the same time. We want to assist in getting the law right. We will not get it right by rushing into it. We have not had the benefit of any feedback from the Law Society (we have suffered the same penalty as the Hon. Angus Redford apparently has), the Victim Support Service or others who may have an interest in getting this bill right.

I do not want to be part of a quick fix, or a knee jerk response to a public rally; I would rather do it right than just do it quickly, but some aspects of the law could be changed for the better. We will support the second reading of the bill. I acknowledge that today we have received a reasonably lengthy letter, which we are in the process of studying, and some amendments from the Attorney but, as members would realise, my remarks are addressed at what is properly the subject of the debate, and that is the bill before the Council. In those circumstances the criticisms I made in my second reading contribution stand.

I hope and have some optimism that good sense will prevail in the committee stage and that we will not be drawn into this ludicrous legislation. We would be a laughing stock, and I believe that is one of the reasons why the Attorney-General has taken the unusual step of introducing some substantial and profound amendments at this rather late stage of the consideration of the bill. I assure him and the Council that we will give those amendments the most thorough assessment we can, and will support the second reading.