CRIMES (SENTENCING PROCEDURE) AMENDMENT (SENTENCING OPTIONS) BILL 2017; CRIMES (HIGH RISK OFFENDERS) AMENDMENT BILL 2017; JUSTICE LEGISLATION AMENDMENT (COMMITTALS AND GUILTY PLEAS) BILL 2017

18 October 2017

2nd Reading Speech


The Hon. ADAM SEARLE ( 11:56 ): I lead for the Opposition in debate on the three cognate bills, the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017, the Justice Legislation Amendment (Committals and Guilty Pleas) Bill 2017 and the Crimes (High Risk Offenders) Amendment Bill 2017. The Opposition does not oppose the bills. I indicate at the outset that my instructions are that we will not support the 12 amendments proposed by The Greens to the Justice Legislation Amendment (Committals and Guilty Pleas) Bill 2017. All three bills are based upon reports, two being reports of the NSW Law Reform Commission and one being a statutory review performed by the Department of Justice. It is good to see reliance placed upon the work of the Law Reform Commission.

The Hon. Dr Peter Phelps: Hear, hear!

The Hon. ADAM SEARLE: I acknowledge that interjection. For a number of years, under previous Attorneys, there were no chairs, no commissioners, and no references to the commission. The Law Reform Commission is too important an institution and it has over time made too positive a contribution to the governance and law of this State to be neglected in this way. This cognate legislation is testament to the contribution the Law Reform Commission can make to law, public administration and public discourse in this jurisdiction.

The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill largely stems from recommendations made in NSW Law Reform Commission Report No. 139, entitled “Sentencing”, which is dated July 2013, more than four years ago. The reference to prepare the report was received by the commission in September 2011. The object of the bill now before the House is expressed to be to improve the availability and nature of communitybased sentencing options that are among the options for courts when sentencing offenders. The bill’s overview states that it abolishes suspended sentences, good behaviour bonds, community service orders and home detention orders. It also enhances intensive correction orders [ICOs], including permitting home detention conditions to be imposed, and it creates community correction orders and conditional release orders to replace community service orders and good behaviour bonds. This is achieved primarily by amending the Crimes (Sentencing Procedure) Act and the Crimes (Administration of Sentences) Act.

One of the critical issues facing the justice system is the imposition of short prison sentences and the provision of alternatives. The bill’s object, to improve the availability and nature of communitybased sentencing, is a significant contribution to addressing that problem. The scale of the issue is impressive. In the 12 months to June 2016, 43.4 per cent of those sentenced to prison in New South Wales received a sentence of less than six months.

Short sentences are often criticised—for example, it is almost impossible to run rehabilitation programs that can operate effectively for short sentences, as their impact is often argued to be enhancing criminal activity rather than addressing it. Certainly, compared with community-based sentences, there is a greater likelihood of recidivism with short sentences. In May this year the Bureau of Crime Statistics and Research [BOCSAR] released a report showing that offenders placed on intensive correction orders [ICOs]have lower rates of reoffending then offenders given a sentence of periodic detention. Earlier this month BOCSAR released Crime and Justice Bulletin No. 207 entitled “Intensive correction orders versus short prison sentence: A comparison of reoffending”. The report concluded:

Offenders who received an ICO had significantly lower rates of reoffending than offenders who received a short prison sentence.

The pursuit of community-based sentencing is less expensive to the State than full-time imprisonment, with the taxpayer paying less. Moreover, the offender is less likely to reoffend and there are further benefits to the State further down the budgetary line. It is obviously better for the offenders, because they are less likely to be in further trouble. More important than any of those factors is the fact that the community as a whole benefits: less crime and fewer victims in the future. It is one of those rare occasions where the line said to be economically rational is in fact rational and aligns with what is ethically and otherwise desirable from a societal point of view.

Intensive correction orders were introduced in 2010 when periodic detention was abolished. They were seen as an alternative to full-time imprisonment. They were particularly an initiative of the former Attorney General, now District Court judge, John Hatzistergos. The stated intention of this legislation is to continue those initiatives and intentions with caveats. The first is that, for community-based sentences to be effective, there must be adequate resourcing of programs and supervision. This is hardly a remarkable insight. I note that in his speech in reply in the other place, the Attorney General did address that point. One of the reasons given to replace periodic detention with ICOs was that periodic detention was not available in rural and regional areas. If the resources are not there for diversion schemes to work, the courts are unlikely to use them, for entirely obvious reasons.

One earlier attempt to divert offenders from short sentences was effective in urban areas of the State where appropriate sentences were available, but not in rural and regional New South Wales, which meant that the perverse outcome was that the percentage of Aboriginal prisoners, for example, increased and was higher than it would otherwise have been. Again, I note the Attorney’s comments in his second reading speech and in his reply concerning the resources being brought to bear by the current Government in this regard. Obviously whether those resources get onto the ground and make a difference will be an ongoing area of interest for all members of this House.

The second caveat relates to the sentences to which an ICO applies. A single offence cannot be the subject of an ICO if the imprisonment imposed exceeds two years, and multiple offences cannot be the subject of an ICO if the imprisonment imposed exceeds three years. The latter part is welcomed, but the two-year limit for a single offence still remains. One concern expressed about this is that the ICOs will be largely restricted to the Local Court and precluded from use in the District Court. If the enhanced ICOs contemplated by this legislation are successful, it would seem sensible to explore their take-up more widely. On this point, I quote part of a letter from the Law Society, dated 13 October 2017, received by the Opposition:

We support the increase from two to three years imprisonment for an ICO for two or more offences. However, we are disappointed that the opportunity has not been taken to increase ICOs to three years for a single offence, which would be an effective way to reduce prison numbers.

The legislation also abolishes suspended sentences. The shadow Attorney General has expressed his views about that in the other place, and I will not repeat those comments. The legislation will broaden ICOs and increase diversion. Similarly, community correction orders [CCOs]will have greater visibility and the aim is for pre‑sentence assessment report processes to be improved and streamlined. There are exclusions for offenders facing particular charges. There is a higher bar for an ICO to be issued for a domestic violence offence, including that it will adequately protect the victim. There are more sophisticated and more sensible provisions to deal with lower level breaches of ICOs.

The second bill is the Justice Legislation Amendment (Committals and Guilty Pleas) bill 2017. The provisions in this bill largely flow from another report of the New South Wales Law Reform Commission, report No. 141 entitled “Encouraging appropriate early guilty pleas”, dated December 2014. The reference to conduct the inquiry was received by the commission on 1 March 2013, and the Opposition publicly welcomed the report’s recommendations more than two years ago. It is good to see the Government in a rapid-response mode. The commission described the District Court criminal trial system as being in or approaching a state of crisis, with unacceptable court delays.

Some of that undoubtedly has stemmed from a lack of adequate resourcing by this Government, but there are structural steps that can also be taken to improve the system and reduce the propensity for crisis. That is what the commission recommended, and these recommendations have found their way into the bill. In effect, the bill deals with defended indictable criminal cases—that is, it is not dealing with matters disposed of summarily before a magistrate or those matters where an offender has already pleaded guilty. Presently for such indictable defended matters, a magistrate conducts an inquiry to determine if a defendant should be committed for trial to a higher court, usually the District Court. The matters will then be listed for trial in the District Court, usually by jury. The problem is that a quite significant number of these cases are listed for a defended hearing, but at the last minute a plea of guilty is entered.

As we understand the figures, 23 per cent of guilty pleas are not entered until the day of trial. If the plea had been entered earlier, then considerable public expense could have been avoided—to say nothing of court backlogs being reduced or avoided altogether. Court time would have been saved, victims would have been spared more anguish, police would have devoted less time to preparation of the case and had more time on other productive pursuits—other cases—and less time would have been spent by publicly funded legal aid and prosecution services, which could have turned their minds to other matters. There would have been a benefit for the accused as well: Knowing their fate earlier makes it easier to see what the future holds for them and what can be done with the balance of their lives. Late pleas are not simply the result of a recalcitrant accused—a very important point to note. In many case they result from the structure of the present system.

Police, when charging a defendant will, not surprisingly, have multiple charges preferred. Sometimes these charges are not sustained by the evidence and lesser charges are eventually pursued by the Crown prosecutor who has carriage of the matter. As I have said, defendant lawyers call that overcharging. The charges on which a defendant is tried are ultimately decided by the Crown prosecutor. As these may be lesser or fewer charges than those originally preferred, it is often completely irrational to expect someone to plead guilty before the prosecutor who is going to conduct the case has considered the matter and decided what charges will be pursued in the courtroom. That is very important. It is only when the scope of the contest has narrowed to that point, when an accused knows exactly what they have been charged with and what the prosecution will carry through, that an accused is told what kinds of penalties they are liable to if they are found guilty or plead guilty. Without that knowledge it is very hard for those advising defendants to provide sensible legal advice to an accused person.

The Hon. Dr Peter Phelps: Hear, hear!

The Hon. ADAM SEARLE: I acknowledge that interjection. It is not a criticism of any side of the equation; it is a frank acknowledgement of a structural weakness of the system that drives and causes delays in being able to deal with these matters.

The problem with the structure is that the Crown’s consideration of the charges happens only quite late in the piece after the case has been listed for hearing and often just before the trial commences. Late pleas of guilty in that sense are structural and the Law Reform Commission proposal was to move consideration of the final charges from the end of the process to the front. That recommendation is contained in the legislation.

The committal process before a magistrate has now changed completely. The role of the magistrate in determining whether to commit a defendant for trial is now abolished. While in the context of our legal history and tradition that is quite radical and has caused concern for some stakeholders, including the Law Society of New South Wales, the facts are that very few magistrates do not commit people for trial. The Opposition has come to be reconciled with the proposal as, according to the commission’s figures, magistrates refuse to commit in only 1 per cent of cases, therefore the impact of the abolition of this function will be very small. That is consistent with anecdotal evidence and with the experience of those practitioners with whom the Opposition has spoken about this matter. As the commission argues, the measures it proposes should not be cherrypicked, they should stand or fall together. That argument also makes sense to the Opposition.

The magistrate’s role under the legislation is to oversee a procedure where the prosecution is required to disclose a brief of evidence to the defendant, clarification is provided of the charges to be proceeded with by the Crown, there will be a formal process of conferencing and at least at the commencement that must be done in person or by audiovisual link. This allows early guilty pleas to be considered, the Crown case having been presented and a Crown prosecutor having considered what charges will be pursued. As part of this process, discounts on sentencing for the utilitarian value of early pleas are made clear. The maximum discount of 25 per cent for a plea of guilty is available only while the matter is still before a magistrate. I note that the changes do not apply to indictable offences committed by children.

The Opposition welcomes the Attorney General’s comment that additional funding has been provided to the Director of Public Prosecutions and to Legal Aid to ensure continuity of legal representation. I do not think this change can work in practice without that additional support and funding. It is hoped there will be significant cost savings from early pleas, which can then be revisited in our administration of justice system. It is also hoped that this case management model will narrow the issues in dispute, which will achieve efficiencies and savings in trials, as well as having other benefits for witnesses and victims. I note that none of these changes will affect the Drug Court. Given the established success of the Drug Court, that is entirely sensible.

A six-month statutory time limit on filing the charge certificate, with limited exceptions, will apply. Proposed section 68 provides that if the prosecutor fails to file and serve the charge certificate by the six-month limit, or by some other period set by the magistrate, then the magistrate may discharge the defendant. There is still a restricted capacity to call a prosecution witness before the magistrate. The bill also provides a power to magistrates to expedite a case to a higher court for a fitness inquiry. The magistrate can commit the defendant for sentence or trial after a case conference certificate and a charge certificate or certificates are filed. The maximum utilitarian discount is 25 per cent while the mater is still in the Local Court. Discounts subsequent to this are substantially lower. For example, if the plea of guilty is made later, but 14 days before the first day of the trial as defined, the discount is 10 per cent. There are also specified exceptions to the discount scheme, where the court determines to impose a life sentence or where the level of culpability is particularly extreme. I refer the House to comments by the Law Society in the letter I mentioned earlier, dated 13 October:

The Law Society is supportive of criminal case conferencing where it is properly funded and senior prosecutors are involved at an early stage, with the delegation to accept pleas to lesser charges and negotiate in relation to “agreed facts.” However, in our view, the effectiveness of case conferencing is dependent upon the retention of a committal framework, full disclosure of the prosecution case, and on Crown prosecutors or other senior lawyers being involved in the process at an early stage.

We are concerned that the Bill, particularly in relation to prosecution disclosure and the abolition of committals, has the potential to create significant delays in the system, increase the number of trials in the District Court and ultimately reduce the number of appropriate early guilty pleas. There is no safeguard in the Bill to require that what the police and prosecution provide an accused person in an initial brief of evidence is sufficient or of a high quality.

I note that in his speech in reply in the other place the Attorney General addressed much of what was contained in the Law Society’s letter. I do not want to take the matter further, unless the honourable Parliamentary Secretary has something new or additional to say. These are important concerns coming from a significant stakeholder in our system of justice and, notwithstanding the passage of the legislation and its implementation, we would urge the Government to remain vigilant about those problems arising and the actions of actors in the system undermining the objectives of this legislation. I do not say that would be a deliberate strategy, it is simply something that could happen despite the best intentions.

The Opposition provides support for the concept put forward by the Law Reform Commission and contained in the second bill. We understand that there is a question about whether it will work and whether the lawyers involved in the system will be able to make it work. Many of those with expertise in running criminal trials, such as the member for Heffron in the other place and others with whom we have spoken about these measures, are sceptical about whether they will work in practice. We on this side of the House earnestly hope that they do because if it can be made to work it is a desirable path to proceed down. It is something we will be watching as these measures are implemented, as will everyone who has a genuine interest in improving our justice system.

The third of these cognate bills is the Crimes (High Risk Offenders) Amendment Bill 2017. The genesis of this bill is to be found in the statutory review of the Crimes (High Risk Offenders) Act, which was carried out by the Department of Justice and is dated 9 May 2017. The first call for submissions as part of the review occurred in January 2016. The scheme established by the principal Act commenced under a Labor government in 2006 when it was applied to high-risk sex offenders. Amendments proposed by the current government in 2013, and not opposed by the Labor Party, saw the scheme extended to high-risk violent offenders. We understand and accept that continuing supervision or detention of people whose sentences have been completed is a radical departure from the standard principles normally upheld in jurisdictions with traditions such as ours. The High Court has upheld their validity, but the scheme has always been expressed to be intended to apply to very few persons.

Page 13 of the statutory review report records that as at 16 January 2017 there were on foot 14 extended supervision orders [ESOs], and two continuing detention orders [CDOs] for high-risk violent offenders, and 58 ESOs and two CDOs for high-risk sex offenders. Page 7 of the report notes that at September 2016 there have been 107 offenders subject to an ESO or CDO since the institution of the scheme more than a decade ago. This legislation introduces a number of amendments to the principal Act. It removes the distinction between the two categories of high-risk offender or high-risk sex offender and high-risk violent offender. It makes clear that the scheme applies to an offender who has been imprisoned for an offence under Commonwealth law or the law of another State or Territory being served concurrently or consecutively with an offence against New South Wales law. It also makes certain under the Act Commonwealth offences of serious sex offences and offences of a sexual nature. There is an obligation for the Legal Aid Commission to be notified if an application is to be made for an emergency detention order. A broader range of victims of serious offences and offences of a sexual nature are able to provide a victim impact statement.

Victim impact statements can be made directly to the Supreme Court, not only in writing. There is also an attempt to allow registered victims to be advised when an offender is the subject of an application for an order. Applications for orders may be made up to nine months, rather than six months, before the end of the offender’s period of custody or supervision. This bill also changes the test for making an EDO or CDO to provide that where an offender cannot be safely managed in the community or by an ESO they are instead subjected to a CDO. There is also a provision that emphasises that the test is the offender’s risk to the community. The need for these changes is set out in the report of the statutory review. The problems are helpfully set out at page 27 and refer to the view of the Department of Justice:

The Department identified a number of issues with the current process for making an order:

Offenders who pose an unacceptable risk which cannot be managed on an ESO are being granted an ESO by the court under the current test.

Offenders cycle between ESOs and being in custody (having breached that ESO) with no change to underlying behaviour.

CSNSW is required to provide detailed information on how an “unmanageable” offender might be supervised in the community, even when the CSNSW does not have confidence that the proposed supervision measures will be effective to keep the community safe.

Of course, that inability to keep the community safe is of grave concern. At page 28, the report also states:

The current test has resulted in offenders being given ESOs even where the risk they pose of committing a serious sex or violence offence cannot be managed in the community. Currently, the court is required to make a finding of unacceptable risk and then determine whether supervision will be adequate. As these two considerations are not “anchored together” in such a way that an ESO could only be viewed as providing “adequate supervision” where it eliminated or substantially reduced the risk of serious offending, the requirement for the court to consider whether the supervision will do anything to address and minimise offender risk or bring it within acceptable levels is limited. This leads to the situation where an offender posing an unacceptable risk of future serious offending will be released to supervision, because the court is satisfied that the supervision will be adequate. Adequacy is justified on its own terms.

Given the consequences for public safety, this seems to be a curious effect of the law and one that should be addressed. A little later, the report states:

This issue with the current test has led to offenders being placed on ESOs only to repeatedly breach their orders because they present too high a risk to be managed in the community. In most cases of breaches of an ESO, offenders will receive short sentences of imprisonment which preludes them from having any form of treatment while incarcerated. This leads to a cycle in which any gains made in the reintegration of the offender are undermined—for example accommodation or employment can be lost due to a return to custody. This also means that efforts to reduce the intensity of supervision are impacted. In short, this can result in longer periods of supervision and reimprisonment.

According to the review report, the end result of the current position is that ESO offenders go back to prison when they breach their ESO and, in the wording of the report, “cycle in and out of prison”. There is no change in their underlying behaviour. This is adverse not only for the community but also for the offenders in question. It is clear from the report that there was some stakeholder disquiet about the proposals, but the department held the view that these changes needed to be made, and it had had that view for some time. Given that, the Opposition is surprised and not a little concerned about the time it has taken for the Government to raise this proposal for consideration by the Parliament.

If the Government accepts the accuracy of the report’s analysis—and we must believe it does because it is legislating to deal with it—clearly there have been people at liberty who should not have been and who have been breaching ESOs and/or committing offences. I would like the Parliamentary Secretary in reply to address the question of the delay by the Government in bringing forward this package. I understand that this is a complex package; that is the nature of cognate bills dealing with issues such as this. The Opposition is not critical of the Government taking care to get the legislation correct. However, if there were real and immediate threats to the community, one would have thought they would have been dealt with earlier. Having said that and with those observations, I indicate again that the Opposition supports the vast majority of content of the three bills and that it will not support any proposed amendments.