2nd R Criminal Law (Sentencing) (Sentencing Considerations) Amendment Bill
29/09/2011
Adjourned debate on second reading.
(Continued from 27 September 2011.)
The Hon. K.L. VINCENT (16:17): I want to briefly place on the record my reasons for opposing this bill. When I first picked up this bill I was a little appalled by the suggestion that we should tinker with what is normally considered our fundamental right, that is, a person’s decision on how to plead, as a mechanism to clear up our clogged court system. However, I attempted to suspend my outrage—as I have had to learn to do quite well since coming into this job, as I am sure we all have—because I perused various second reading speeches and other research and got the impression that maybe I was being a little naive.
I, as does everybody else in this chamber, want our justice system to function and want to clear the backlogs and, as someone who is not an expert in the law per se, I thought it comforting that other people who had experience in law felt that this mechanism was acceptable. Perhaps, I thought, this is a method which is already used and is therefore acceptable; and, to some extent, this is correct. There is encouragement to plead guilty as early as possible already built into our justice system in South Australia.
However, as I looked further into the matter and was able to consider a more diverse range of perspectives, I began to realise that my original feelings of outrage could well be justified. At this stage I think that I must thank the Law Society’s Ralph Bönig and criminal lawyer David Stokes for providing further information on this matter.
While we already encourage people to plead guilty as early as possible, I do not believe that we do this simply to save time in court. There are a myriad of reasons that an early guilty plea might be preferable. These reasons encompass everything from shielding victims from the trauma of giving evidence to ensuring defendants get the most suitable consequence for their crime and circumstance. It has been put to me—and I believe—that, in the scheme of things, saving the court’s time is a very low priority reason for encouraging early guilty pleas. Despite this, our government has seen fit to treat the relationship between reduced sentences and saving the court time as a simple one.
The government is telling us that, if we encourage people to give a guilty plea early, or give up information in return for a sentence discount, we will whip through the court list and everything will be wonderful. Plainly, given the complex reasons for early guilty pleas, this simplistic sentiment is untrue. Once we start messing with the balance of sentencing, there might be all kinds of unintended fallout related to the other reasons that it might be good to plead guilty.
This government is attempting to pretend that the justice system is a straightforward beast. This is also untrue. It pains me to once again stand here and speak about why we should not play fast and loose with people’s rights to justice.
Our government has a certain way of dealing with the justice system which involves characterisation of defendants as not deserving rights. We see that theme again with this bill, where our government is hoping that we will forget that it is important for someone to have the right to weigh carefully their decision of how to plead. If the government gets its way, lawyers will have no choice but to advise an early guilty plea, even when there is not necessarily enough information available for them to know the full details of the prosecution’s case. There is no getting around the fact that, if we pass this bill, it will result in injustice for defendants and, in some cases, for victims, too.
Of course, this is of special interest to me because, as members are well aware, I am concerned about the rights of people with disabilities, in particular, who are in the justice system. Currently, a defendant who has an intellectual disability, for example, might be given special consideration when sentencing is being decided. For example, a judge might gather that they were unable to enter an early guilty plea because they were not offered enough support to understand the facts of the case or indeed present their evidence. I do not want these individualised considerations to be outlawed or discouraged in our court system, and the bill will obliterate this kind of flexibility.
Put simply, the government has identified a problem with the court system, and it is trying to solve the problem using an inappropriate tool—and I suspect that it was the cheapest and easiest tool to reach. It is like me getting a flat tyre on my car and then attempting to fix it by getting the engine serviced. I cannot support such an unsuitable measure, and I will not support this bill.
