Home Invasions: Criminal Law Sentencing 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: This is draft bill B, which was circulated for comment by the Attorney-General near the end of October as part of his home invasion discussion paper. Section 11(1) of the Criminal Law (Sentencing) Act 1988, as a general rule, states:

A sentence of imprisonment must not be imposed for an offence unless, in the opinion of the court-

(b) the defendant is likely to commit a serious offence if allowed to go at large; or

(d) any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence.

The presumption of our current law therefore is that, unless certain defined aggravating circumstances are present, an offender is not automatically sent to gaol. There is a reason for that. Gaol should not be a first option for most offenders. It is expensive to keep someone behind bars unless they are a danger to the community, they are repeatedly offending or their crime is so shocking. We should look first at other methods of punishment or rehabilitation. That is our general rule.

With this bill we are considering two changes to this general rule. Firstly, we are considering changing a prohibition `a sentence of imprisonment must not be imposed unless' if in the opinion of the court one or more certain aggravating features are present and replacing it with a permission `a sentence of imprisonment may only be imposed if' in the opinion of the court one or more certain aggravating features are present. Sharper legal minds than mine might be able to point out the significance of that change. I am not convinced that it is necessary, but on the face of it I see no harm in it, except as a signal that there is more of an encouragement to a court to impose a sentence of imprisonment.

However, the second change to the general rule is quite dramatic. We are picking out the offence of home invasion from among all other possible offences and saying that as far as home invasions-and only home invasions-are concerned the general rule does not apply; in other words, this bill sets up a sentencing regime for the offence of home invasion which is totally different from the principles that apply to all other offences. The principles are unlike those which apply to thieves, forgers, rapists, armed robbers or even murderers. For home invaders-and only home invaders-there is to be a special, separate sentencing principle, and that principle says that, even if a particular home invader is not a danger to the community, even if they have never offended before and pose no risk of ever offending again, even if the offence or circumstances are not serious, a gaol sentence may be imposed.

I refer members back to the hypothetical example I gave earlier this evening in my second reading contribution on the previous bill, the serious criminal trespass bill, of a home invasion by an estranged wife and her 10 year old daughter after being invited to the estranged husband's new home. While there, the woman formed an intent to steal back a toaster. What this bill says is that, when sentencing someone for a home invasion such as this, the fact that this woman is not a danger to the community, and the fact that she has never offended before and may never offend again, are all irrelevant. Remember the definition of home invasion: `It does not need to be a forced or unlawful entry to be a home invasion.' This strikes me as being a completely over-the-top reaction. Home invasions can be and usually are serious; however, they are not the only potentially serious crimes which can be committed.

When on some occasions, like my hypothetical example, they turn out to be not so serious, it will be ludicrous if we have a special exception in terms of sentencing for them and not for murder. There are in fact isolated cases of people who have committed murder but who have been freed after very short sentences-and deservedly so. One celebrated case in Adelaide involved a woman who killed her husband after he had repeatedly abused and tormented her and their children for years. Another person who carried out a mercy killing, the so- called euthanasia of an elderly relative who was in great pain, received a sentence for murder, but it was mercifully short. These are the isolated exceptions, the reasons why judges have these discretions, as I indicated in my previous second reading to the earlier bill.

The discretion of judges to determine a sentence in the light of the case before them is a mainstay of our judicial system. However, this bill would remove from judges the sort of discretion which we want them to exercise. Judges need this discretion. Home invasion might occur as a result of a mistake or a misunderstanding. Some cases might be quite minor. Judges need to be able to take this into account in the same way as they do for any crime. There is always an opportunity for the Director of Public Prosecutions to appeal against a sentence when it is viewed as too lenient.

In my opinion, this bill is a knee- jerk response which may satisfy some victims of home invasion but which will say to the victims of every other crime, `Sorry, the type of crime committed against you does not have the same type of political pull as a home invasion crime. If you are knifed on the street, bashed up at work or run down by a hit and run driver (even a child's murder), it is not as serious in terms of the directions we gives judges on sentencing as a home invasion crime.'

I would much rather support something meaningful that will address the causes of crime. The Hon. Nick Xenophon has an amendment on file that seeks to improve our knowledge of the people convicted of serious crimes, and I believe that that deserves serious consideration during the committee stage; I am attracted to supporting it.

The Democrats will be moving to amend the government's bill by removing a couple of key words, to try to ensure that home invasion offences are subject to sentencing principles that are consistent with all other offences. Those amendments are on file and I refer members to them to see their detail and the effect that they will have. For the purpose of debate and the amendments we hope will be moved in the committee stage, the Democrats support the second reading.