Media Release

Repeat offenders law sends confusing message about crime prevention

12 October 2017

A Bill that would effectively direct the court to detain offenders, including minors, beyond their prison sentence is a subversion of fundamental legal principles and contradicts recent Government policies to reduce the prison population.

The Law Society has serious concerns with the potential impacts of the Statutes Amendment (Recidivist and Repeat Offenders) Bill 2017 and the lack of time afforded to stakeholders to consider the Bill and make a detailed submission.

Former Corrections Minister Peter Malinauskas, before being moved to the Health Portfolio, launched a promising project to reduce recidivism by 10 per cent by 2020 by incorporating early intervention and rehabilitation, yet the Government has since released a suite of Bills, including the Statutes Amendment (Recidivist and Repeat Offenders) Bill, that will increase the prison population, have no regard to early intervention and rehabilitation and have little effect on enhancing community safety. The Government has not explained how it will accommodate more prisoners in an already overcrowded system.

“It is disappointing that the former Corrections Minister’s focus on early intervention and rehabilitation to reduce offending has so swiftly given way to populist, ill-conceived legislation.Dealing with serious repeat offenders is not easy, but abandoning them is not the answer,” said Tony Rossi, President of the Law society of SA. “It sends a confusing message.”

“This is another case of the Government looking to re-draft criminal laws rather than properly invest in policies and programs that will actually have a material effect on enhancing community safety.”

“Continuing to debase fundamental aspects of the criminal law is no way to address the underlying social issues that so fundamentally contribute to repeat offending,” Mr Rossi said. “It’s not even a cheap option when you consider the extraordinary costs of keeping people in prison.”

“The Bill draws no distinction between a youth and adult offender in the way they are treated. All this will achieve, in cases where early intervention and rehabilitation are important factors, is to lock young people up indefinitely without any indication of support to help prisoners effectively return to the community.”

“The Bill is likely to deem anyone who has committed two or three serious offences as unwilling to control their impulses where there has been a failure to provide rehabilitation and assistance to break that cycle of offending. It is reminiscent of the three strikes policy in America which was tried and resulted in great injustice without protecting the community.”

“We know that the majority of youth offenders come from troubled backgrounds. They are often the victims of abuse and neglect, and their anti-social behaviour in part stems from a belief that society does not care about them,” Mr Rossi said. “These proposed laws, particularly in the absence of any effort to improve outcomes for wayward youths, send a message to these young people that they are not worthy of redemption. The Bill would likely have a disproportionately damaging effect on young Aboriginal people.”

Mr Rossi said the Bill should be considered in the context of a raft of recent Bills which upend the traditional view of the criminal law. In essence, a serious repeat offender can be held in jail indefinitely and be denied bail without any added initiatives to address the behaviour of the offender.

“Another serious concern is that the Bill would be applied retrospectively, meaning that current prisoners could be held indefinitely even though the sentencing judge at the time would obviously could not have foreseen that possibility. Applying punishments retrospectively is a clear violation of human rights.”

The Society notes the proposal that any non-parole period for the deemed serious repeat offenders must be at least 4/5th the length of the sentence. The Society has consistently argued that the Government approach to an automatic discount of 40 per cent for early guilty pleas should be reviewed. The Society maintains that the discretion as to the non-parole period should be left with a trial judge.

The Society supports the release on license with conditions as a sentencing option in cases of serious repeat offenders but that should apply to the period between the completion of the non-parole period and the head sentence, and offenders should be participating in rehabilitation programs during that period.

“This Bill has been rushed in to the Parliament without consultation with relevant stakeholders. The parliament should refuse to finalise its consideration of the Bill unless and until relevant stakeholders had an opportunity to make a detailed and considered submission.”