Criminal Law (Sentencing) (Home Detention) Amendment Bill | SPEECH


Second Reading

Mr VAN HOLST PELLEKAAN ( Stuart ) ( 10:32 :39 ): I move:

That this bill be now read a second time.

This bill is identical to amendments the opposition put forward nearly a year ago. In October 2015, the government brought forward its Statutes Amendment (Home Detention) Bill 2015. At the time, led by the then shadow minister for police (the member for Morialta), the opposition said that we understood how important it is that home detention be offered as another sentencing option for courts, that we understood that there are some people who have been convicted of crimes, who might otherwise have to go to prison, who should perhaps be sent to home detention instead and that we understood that principle.

We also said and still say that there are some criminals, some convicted criminals, who should not be entitled to consideration of home detention. For us, it is fairly simple. Murderers, terrorists and serious sex offenders should not be eligible for home detention. It is pretty straightforward. At the time, the government refused to accept that fairly straightforward premise. They said at the time, ‘Yes, we understand about murderers and, yes, we understand about terrorists.’ The government said at the time that they did not understand, or did not accept, what we were putting forward with regard to wanting serious sex offenders to be excluded.

The government’s logic at the time was that there were a range of offences, which are today technically classified as serious sex offences, which in the government’s mind today are not that serious anymore. Instead of embarking on the path of actually changing the technical definitions so that ‘serious sex offenders’ would be covering a range of offences that today would be considered genuinely serious, the government actually chose just to object to our amendment.

What is particularly concerning is that, having used that logic, the government disagreed with us on serious sex offenders and also then disagreed with us on terrorists and murderers. So, the government used its numbers to ensure that its bill went through. I say again that the opposition supports the intent. We completely accept that there are times when home detention is an appropriate sentence. Here we are again and, instead of asking for an amendment to the government’s bill at the time, I am moving a private member’s bill seeking the support of the government and crossbenches in the other place to change the bill. I think this is particularly pertinent given that now we have a bit of a taste of how home detention is going.

It is worth putting the government’s desire for home detention—in fact, unfortunately, the government’s need for home detention—to be available to as broad a range of people as possible because it has completely mismanaged our prison system over the last decade or so. Our prison system has been operating above its own identified official capacity since 2013, and it is forecast that it will continue to operate with a prison population in excess of its own identified approved prison capacity until at least 2018 because the government had the rack ’em, pack ’em and stack ’em approach. Of course, they have not used those words for a few years now, but they certainly used them a few years ago.

It is those words, that intent and that approach to Correctional Services that has got the government into so much strife, and, with that in mind, it refused to increase the capacity of our prisons. Now, of course, it is trying to increase the capacity of our prisons, but it is too little, too late. I welcome the capacity increase, but we know that that capacity increase, which the government is now funding and is now building, will not help our prison system catch up to the forecast prison population growth until at least 2018.

So, the government is forced to pursue home detention in as broad a way as possible so that it can keep as many convicted offenders as possible out of prison. I come back to my point: the opposition supports the fact that there are some offenders for whom home detention would be completely appropriate, but we do not accept that murderers, terrorists or serious sex offenders would be in that category of people. To be really clear, this bill is about home detention as a sentencing option at the front end of a sentence.

This bill does not affect the opportunity for the Department for Correctional Services to use home detention as a custodial management tool at the end of a sentence. For those who may not know, or might be reading this or listening to this in another place, the courts determine the sentence up-front after a conviction but, at the back end of a prison system, the Department for Correctional Services, if it chooses to, can send a prisoner from prison into a home detention custodial situation. This bill is about only the front end. It is only about the sentencing and it is only about asking the government and the crossbenches in the other place to support the principle that murderers, terrorists and serious sex offenders should not be entitled to skip prison.

There is a huge amount of public frustration and public anger about some recent home detention sentences that have been handed out. I am not suggesting that public sentiment alone should determine how a convicted criminal is sentenced; in fact, I would say of course not. If it were as simple as that, we would just let the jury take care of that as well. It is not appropriate. It is not appropriate for the families of victims to choose a sentence, the same way as it is not appropriate for the families of the convicted criminal to choose the sentence.

Mainstream public opinion must form a significant component of the way our courts choose sentences, but at the end of the day it does need to be up to a sentencing judge to make that decision. The parliament does get to set the guidelines about the range of options that are open to the judge when choosing what the sentence is. I think that this bill is a very sensible and very appropriate way of guiding judges whilst still leaving them a with range of options and, as I said before, leaving the Department for Correctional Services the option to use home detention at the back end of a sentence.

Deputy Speaker, you might have seen in the media recently comments by family members of victims saying how important a prison sentence is to the victims and their families with regard to getting through their grief and understanding. I read one quote where a family member said that a shorter prison sentence would be more satisfactory to victims and their families than a longer home detention sentence and that, in their minds, there are some crimes which deserve a prison sentence.

I will say again that it is not up to the victims or the victims’ families to be choosing the sentence, and it should not be, but their views and feelings, and the position of the overall community at large, must absolutely be listened to. There is great frustration and anger at the moment with regard to the government’s imposition upon the courts of a much wider range of opportunities than the opposition thinks is appropriate and, simultaneously, the courts’ knowledge that the prisons are full. The prisons are overflowing; the prisons have been operating over capacity since 2013 and will do so until at least 2018. You can understand the position that a sentencing judge is put in when trying to decide exactly what to do with an offender as well.

We accepted that home detention was important. When the bill came to parliament, we wanted to improve what the government had to offer. The government rejected that support from the opposition. This is another opportunity provided by the opposition for the government to improve upon the bill which it brought through and passed in the parliament, and which has now led to more lenient sentences being handed out than I think most people in South Australia would agree with. I would just like to briefly quote from an InDaily article written by Morry Bailes:

After feeding the South Australian public for years on a strict rhetorical diet of being ‘tough on crime’, it’s no wonder the State Government is struggling to sell home detention as a palatable sentencing option… 

… A far wider range of incarceration and penalty options would not only introduce much needed flexibility to our courts, it would also likely be met with a deal more enthusiasm from the public … 

… One can never remove the underlying expectation that if you do the crime you do the time. What we need to figure out is where and in what circumstances. Just locking people up in their lounge rooms probably won’ t cut it . 

The reason I have chosen these quotes is that they clearly identify the problem that the government has got itself into. It clearly identifies the fact that home detention, as one of the options, is certainly important. It clearly identifies the fact that perhaps there should be a wider range of options for courts to consider, but it also clearly identifies the fact that, as is referred to here, ‘Just locking people up in their lounge rooms won’t cut it.’

The reason that is such a sensitive issue is that there is a very wide range of ways that home detention can actually be implemented. Home detention could be as simple as a convicted criminal staying at home and sitting there watching television all day long while on the dole; so, convicted of a crime, sentenced to stay at home, still receiving welfare benefits. That may or may not be appropriate, but that may be next to no infringement of that criminal’s liberties whatsoever if, perhaps, that is just about all that person ever did anyway.

A person could potentially still go to work; a person could potentially still play sport; a person could potentially still participate in a wide range of family and other social activities. Maybe that is appropriate and maybe that is not, but I am comfortable for sentencing judges to be making those decisions. What I am not comfortable with is that they can make those decisions and hand out those types of penalties to murderers, terrorists or serious sex offenders.

This is an opportunity for the government to improve its bill. It is the second time that the opposition has offered this opportunity to the government, and I sincerely hope that this second time around the government will take it.

Debate adjourned on motion of Hon. T.R. Kenyon.