Home Invasions: Sentencing Principles Amendment Bill rushed through

	Extract from Hansard Legislative Council 18 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

CRIMINAL LAW (SENTENCING) (SENTENCING PRINCIPLES) AMENDMENT BILL
(edited transcript)

Leave out all the words on these lines after `amended' on page 1 line 16 and insert:

`home' means a building, structure, vehicle or vessel, or part of a building, structure, vehicle or vessel, used as a place of residence;;

The Hon. IAN GILFILLAN: The Democrats support the amendment. This appears to be an improvement, and I am personally pleased to see the words `home invasion offence' removed from the statute book.

(ea) in the case of an offence committed by an intruder in the home of another-the need to give proper effect to the policy stated in subsection (2);

(2) A primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders.

The effect of the first amendment is to insert within the list of matters to which a court is obliged to give consideration under section 10 of the Criminal Law (Sentencing) Act the need to give effect to a policy set out in the following amendment. The effect of the second amendment is to replace the proposed amendment to section 10 by creating a new section 10 subsection (2) and replacing the old one.

It refers to the new concept of home intrusion rather than a home invasion offence. It is noted that this will cover any offence committed in the course of a home intrusion. It also eliminates the potential overlap between the proposed new criminal trespass offences and the sentencing principles. I have referred to that conflict previously in my general remarks.

The Hon. CAROLYN PICKLES: The opposition indicates its support for the amendments.

The Hon. IAN GILFILLAN: The committee will note that I have amendments on file which reflect an attempt to ameliorate the mischief that I think stands to be done under the original drafting of the bill. I am magnanimous enough to concede that I think the Attorney's amendments are probably even better than mine.

The Hon. IAN GILFILLAN: I realise that. There are times when my magnanimity shines forth. I have one lingering area of concern, which I mentioned earlier during my comments on this whole matter, and that is the impression that the sentencing judge is to give a higher priority to imprisonment for this offence than other offences. As far as I know, there is nothing equivalent, even to the amendment to paragraph (b) which provides:

If a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10(2).

The Attorney might care to give an opinion on the record about this. Is it the Attorney's understanding that this is a unique direction to the judiciary? If so, why is it considered to be essential to include it in this bill?

The Hon. K.T. GRIFFIN: I do not accept that this provision is unique. I think the honourable member's remarks are directed more towards clause 5 than clause 4. However, dealing with this issue, section 11 of the Criminal Law (Sentencing) Act provides that `a sentence of imprisonment must not be imposed. . . unless, in the opinion of the court'-and then certain issues and characteristics are identified. So, already there are circumstances in which it is implied that imprisonment must be considered.

Regarding an offence committed in a home, as I said when we were discussing the Criminal Law Consolidation Act amendments, the government takes the view-and I support this; it is a generally accepted view-that you are entitled to regard your home as a sanctuary, to protect it and to make it secure. So, I support the view that a special reference to the home and protection and security in the home should at least be recognised in the law. In this instance, it is recognised in the sentencing principles which complement the substantive offences relating to serious criminal trespass and which, as we know, provide for the serious offence of serious criminal trespass in a residential property.

The Hon. IAN GILFILLAN: I apologise. I was confused. When the Attorney said that he wished to move the two amendments together, obviously he was referring to the two amendments to clause 4. The Attorney is right: my comments relate to the amendment to clause 5. It may save time if we talk this through.

Although the Attorney referred to current legislation, the wording is subtlety different. I cannot remember exactly what it is but it something like `an injunction to a judge not to impose a prison sentence unless', whereas the wording in the amendment is `a sentence of imprisonment may only be imposed'. Although it is only marginally different, it is definitely cast in a more positive sense. So, I still stand on my argument that there is an extra emphasis on imprisonment being applicable to this offence. I will not belabour the point, but I think there is a subtle difference in the wording.

I am a little more concerned about the other matter that the Attorney raised because, in a way, I think he is being indoctrinated by some of the rather insidious propaganda. No-one denies the fact that a home should be regarded as something precious for people to enjoy with the expectation of protection and privacy. I do not think that issue is in debate. However, what I do think is in debate is: because the sentiment around the word `home' comes into an offence, that offence then automatically becomes more liable to a heavier penalty because of that fact alone. That is my observation on part of the answer which the Attorney gave before.

To be effective, the law has to be almost sterile of emotion and sentiment, otherwise it has a tendency to be warped. That is why I think that the biggest hazard we had in this legislation was that it galloped along in response to emotion, sentiment and fear. We have reined back a lot of that, and I feel that it is much better now as amended than it was in its original state. But if the Attorney ever refers to Hansard he will note that I still have this concern that, by the force of gravity of the propaganda, because it has the word `home' attached to it, the offence will not be measured on the actual merits, culpability or nature of the offence but will get a more severe sentence, more severe treatment by the judge because it has this association with `home'.

Page 2, line 23-Leave out proposed paragraph (b) and substitute the following paragraph:

(b) if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10( 2).

This is an amendment to section 11 of the act, which deals with the circumstances in which a court should consider imposing a sentence of imprisonment. It is therefore a serious matter. The effect of the amendment proposed here is to make sure that, when considering whether or not to impose a sentence of imprisonment, the sentencing court has due regard to the primary policy set out in the previous amendment.

The Hon. CAROLYN PICKLES: The opposition initially had some reservations about this amendment, feeling that it somehow watered down the intent, but in further discussions with the Attorney-General's officers we are now satisfied with the intent. Therefore, we are pleased to support the amendment.

The Hon. IAN GILFILLAN: As was the purpose of my amendment originally, we do not believe that ( b), even in its reworded form, is desirable, but I have indicated to the Council that I do not intend to move my amendment to leave out the paragraph entirely and, as I commented before, at least it has improved the wording. But it is my firm conviction that this is an unfortunate distortion of sentencing principle.

74A. (1) If it appears from material placed before a court for the purposes of sentencing a defendant for an indictable offence that the defendant has a history of-

(h) being placed under the guardianship or in the custody of a government authority pursuant to laws dealing with the care or protection of children,

the court must provide the Attorney- General with a report containing details of the offence or offences for which the defendant is sentenced and indicating which of the circumstances listed above are applicable in relation to the defendant.

(2) The Attorney-General must cause statistics to be kept relating to the information reported under this section and, on an annual or more frequent basis, include the statistics in a report made available to the public.

I foreshadowed this amendment during the second reading debate and do not propose to restate what I put then. This clause provides that statistics relating to the background of defendants be made available to the Attorney-General from the judiciary, from the court, in cases where sentencing takes place for an indictable offence. This amendment is not saying that the court has to undertake a forensic analysis as to whether truancy, mental illness, problem gambling or any of the matters listed were a cause of the particular offence, but it does ask that the court set out which of the background circumstances of the defendant are applicable.

I quote Lindy Powell QC, former President of the Law Society of South Australia and a barrister with extensive experience in the criminal law jurisdiction, from her column in the Advertiser last Saturday, 13 November. In discussing this amendment (and I provided Ms Powell with a copy of the proposed amendment) she said:

His amendments require superior court judges to report to the Attorney-General particular background information concerning the people they are sentencing for serious offences. Those matters include whether the person has suffered from mental illness or impairment, alcohol or drug dependency or problem gambling. Other matters relate to childhood problems. The burden on judges would be relatively light. Presumably, they could comply by simply ticking boxes.

The statistical information which could be gathered as a result, however, would be of significance. If profiles of the background of offenders with respect to specific offences could be developed from these statistics, then we would have the information necessary to start to tackle the cause of crime. Some real good may come out of legislative reform initially driven by fear and lack of information.

I am also grateful for the advice of Marie Shaw QC, another well-known Adelaide-

The Hon. K.T. Griffin: She ought to know better. I bet she didn't advise you to do this.

The Hon. NICK XENOPHON: The Attorney says that Marie Shaw should have known better and she didn't advise me to do this. I suggest that the Attorney have a conversation with Marie Shaw.

The Hon. NICK XENOPHON: I suggest that he do so sooner rather than later. I have discussed this matter with Marie Shaw and she has been supportive of that. Obviously, the Attorney can have that confirmed directly from Ms Shaw.

The Hon. NICK XENOPHON: I think we should at least make an attempt to focus the debate on the causes of crime. There is not much more I can say about this. There have been some tentative expressions of support, from the Hon. Terry Cameron and other members. I know the Hon. Ian Gilfillan was attracted to the idea: whether the attraction has turned into something more fervent remains to be seen. I commend the amendment to members.

The Hon. K.T. GRIFFIN: I have as much interest as anyone in trying to determine the causes of crime, what drove people to crime, what caused them to commit crime; but with all due respect to the honourable member this is not going to help us one jot in getting closer to the answers to those sorts of questions.

It is superficially very attractive, but we are not going to get that information by asking the court in some way or another to try to identify in rather simplistic terms whether a person has a history of truancy. What does a history of truancy mean? For a 50 year old who is up for break and enter, what does a history of truancy mean? Does it mean 30 years ago? With respect to the honourable member, I do not believe that Ms Marie Shaw QC would have looked at this drafting and said, `That is practical'. She would certainly have had sympathy for the intention, and certainly from her criminal practice at the defence bar she would undoubtedly have seen defendants and clients who may be suffering from alcohol or drug dependency, but I just do not believe that she would have looked at the final drafting, carefully considered it and said, `That is a function of the court and something which the court can easily do in every case which comes before it.'

Because I have been here in parliament, I had one of my officers speak to the Chief Justice. I am informed that the Chief Justice has no objection to my making known to the Council his views on this amendment. I hope the honourable member is listening to this because it will be a bit enlightening. First, it is not a judicial function (in the sense of individual judicial officers) to gather and distribute statistics of this kind. It might be different if it was possible for ancillary staff to do the job, but in the Chief Justice's opinion they could not. The amendment requires not merely a ticking of boxes but also an assessment of the material placed before the court ( which may be verbal) and an assessment of which of the listed matters were applicable-whatever that means. Only the sentencing judge could do that without a lot of trouble.

Even if it was appropriate for judges to perform this task, the task they are being set is far from clear. For example, the judge must provide the details of the offence. What does that mean? If it simply means what offence or what section number, that is not so bad, but it could also mean other things such as the factual circumstances of the case, whether there were other offences taken into account either formally or by way of sentencing for a course of conduct, and so on. The requirement is for reporting about whether or not the offender `has a history of the listed matters'. Does this mean that the factors are limited to those on which the judge makes a formal finding of fact? In many cases the judge does not do so. Apart from cases in which the court may receive such evidence, either as evidence or assertion from the bar table, without finding one way or the other on it as a formal matter, there are also cases in which the evidence is received and may be true but no finding on it is necessary because other factors or facts are so overwhelming that they dictate the course which must be taken.

The Chief Justice also observed that his off-the-cuff estimate would be that up to 95 per cent of offenders would fall into one or another category or more and that this would mean the generation of a great deal of statistics which would tell us very little that we do not know from anecdotal evidence, albeit experienced anecdotal evidence. In short, he questions the value of generating the statistics in the first place.

The Hon. IAN GILFILLAN: I support the amendment. I wonder whether the Attorney thought to get the Chief Justice's opinion of the original drafts of the home invasion legislation; and, had he done so, would he have shared that information with this chamber? It seems to me to be a good dose of overkill to quote at length an opinion from a judge who, with due respect, had previously had no invitation to consider the intended implications of the new section.

I take on board both the voluble explanation of the Attorney's personal point of view and the opinion of the Chief Justice which the Attorney read. I do not see the new section as being particularly onerous because it relates purely to material placed before the court: only data of a purely statistical nature is required. The Office of Crime Statistics and most people who attempt to solve the puzzle of the causes of crime and what we can do about it often suffer from a dearth of information. A percentage of it may be superfluous and some of it may be inaccurate, but at least it is valuable material coming from the coalface, from the area where these offenders are being assessed as people.

If there are observations that come from these categories, rather than knock them out as being impractical, let us accept the fact that they may not be perfect in their original drafting. We spend our time in this place amending and improving measures that are brought before us, and most of the time we spend considering improvements to legislation that the government puts forward. I do not intend to dump on this idea. Even if it does not prove to be significantly effective, I believe it is worthy of support, because it does approach what is a far more potentially profitable line in dealing with offences and offenders than the provisions of the principal legislation that this amends. I indicate that the Democrats support the amendment.

The Hon. K.T. GRIFFIN: I want to reply to that quickly, because I do not want the honourable member's representation about what I had to say to continue. When I spoke about the Chief Justice's comments, that was a report of the verbal consultation. The amendment was received by me only yesterday; it was filed only yesterday. The Chief Justice chairs the Courts Administration Authority-

The Hon. K.T. GRIFFIN: That is right, but I got the amendment only yesterday, so I do not have a response in writing from the Chief Justice about the amendment. It was referred to him because it had resource implications and was directly within his area of responsibility. I do not have a letter from him. I have not asked him for a letter only because there has not been time to get one. I have been reporting on the conversation with the Chief Justice. I referred the matter to the Chief Justice because he has the responsibility, as the presiding member, of the Courts Administration Authority, in respect of which this will create both some resourcing and practical issues.

The Hon. CAROLYN PICKLES: The opposition supports the amendment. I have taken on board some of the issues that the Attorney-General has pointed out. I propose to amend the Hon. Mr Xenophon's amendment. I move:

That the words `where practicable' be inserted before the words `must provide the Attorney-General with a report. . . '