1 June 2016

2nd Reading Speech

The Hon. ADAM SEARLE ( 16:27 ): I lead for the Opposition in debate on the Crimes (High Risk Offenders) Amendment Bill 2016. The Opposition does not oppose the bill. The object of the bill is to amend the principal Act, the Crimes (High Risk Offenders) Act, to include within the continuing detention and extended supervision regime offenders convicted of the indictable offences of constructive murder, which is murder occurring in the course of the commission of another serious offence, manslaughter by unlawful and dangerous act, and wounding with intent to cause death or grievous bodily harm.

Despite the exaggerated claims made by the Government in the other place when introducing this bill, this bill is modest. The bill seeks to clarify and extend the class of violent offenders in relation to whom the State can apply for an extended supervision order or a continuing detention order. In her second reading speech the Attorney General noted that the Act was originally intended to cover the types of offence covered in this bill. The regime was originally established by the Labor Government in the Crimes (Serious Sex Offenders) Act in 2006. As the title suggests, the regime at that stage applied only to serious sex offenders.

In 2013 the Crimes (Serious Sex Offenders) Amendment Bill was adopted by the Parliament to include high-risk violent offenders. This flowed from a referral by then Premier Keneally in 2010 to the NSW Sentencing Council and a subsequent report. The legislation was amended again in 2014 to, among other things, establish the High Risk Offenders Assessment Committee. 

The legislation currently allows an application to be made to the Supreme Court in relation to certain categories of convicted offenders for an order to supervise or detain the offender even though their sentence has expired. Orders can be made only by the Supreme Court, as is appropriate, and only if the court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious offence if not kept under supervision. Unsurprisingly, there are relatively few offenders against whom orders are made. I note that in her second reading speech in the other place the Attorney General acknowledged that since 2013 only one continuing detention order and nine extended supervision orders have been made.

In answer to a supplementary question on notice at budget estimates, the then Attorney General indicated that as at 1 September 2014 there were 35 offenders in New South Wales in the community on an extended supervision order—35 were sex offenders and one was a violent offender. At that stage no-one was subject to a continuing detention order. In mid-2015 a media report indicated that there were 37 persons living on extended supervision orders, which gives a sense of the scale of this regime. The scheme is different from earlier strategies such as habitual offender legislation. Detention is not unlimited and is not imposed at the time of sentence. It is imposed at a later period and is still at variance with traditional common law principles.

Currently, apart from serious sex offenders, the legislation applies to offenders convicted of a serious indictable offence that consists of engaging in conduct that causes the death of another person or grievous bodily harm to another person with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person. It also extends to attempting to commit or conspiring with or inciting another person to commit that kind of offence. This is set out in subsections (1) and (2) of section 5A of the principal Act.

The only substantive part of this bill is to include a new section 5A (2A) to clarify the existing provisions of the Act. New subsection (2A) provides that the conduct referred to in section 5A (1) (a) includes murder committed during or immediately after the commission of a serious crime, manslaughter caused by an unlawful and dangerous act, and conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or their grievous bodily harm. Provision is also made to have application to offences committed before the commencement of the Act and to persons serving a prison term before the Act commences. The Opposition did not oppose the 2013 legislation and this bill will ensure that the 2013 legislation has the effect that was intended at the time. Accordingly, the Opposition does not oppose the bill.