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Legal backlash to harsher sentencing law change


The state’s legal fraternity is preparing to push back against a State Government law change which reined in judicial discretion to hand out home detention sentences – particularly aimed at sex offenders – arguing that it is “distorting” the sentencing process.

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The Law Society of South Australia and the South Australian Bar Association are currently preparing submissions for Attorney-General Vickie Chapman regarding the effects of the Sentencing Amendment Bill, which passed in May.

The Bill included a slate of changes designed to revamp the Sentencing Act – enforced penalties for certain crimes decided by state legislature – but specifically scrutinised the availability of sexual offenders serving time out of jail.

The Bill curtailed judges using their discretion to hand out community-based sentencing options – such as home detention, intensive correction orders and suspended sentences – for sexual offenders.

Law Society criminal law committee chair Craig Caldicott told InDaily the Sentencing Amendment passed “without a lot of consultation” within the legal community and was “throwing up the exact issues we thought it would” – especially for those convicted of sexual offences.

“Certain people are going to jail who shouldn’t go to jail, and people who should have more serious sentences are being released on bonds,” said Caldicott who is also a criminal lawyer.

“It’s distorting what is the appropriate process.”

Attorney-General Chapman told Parliament in February a portion of the Bill was to amend a provision of the Sentencing Act which created controversy surrounding the possible home detention sentence of convicted South Australian paedophile Vivian Deboo.

Deboo was sentenced to six years jail in December 2017, but under the previous legislation he may have been ordered to serve his sentence in home detention if “special reasons exist”.

Chapman said there was merit in retaining very limited discretion for the court to permit home detention, “in the very limited circumstances of an offender who is genuinely no longer a risk of reoffending”.

“However, this of course must be balanced against other factors, such as the need to maintain public confidence in the criminal justice system.

“The Marshall Government… has reviewed all of the legislation relating to the sentencing and home detention of all offenders, including child sex offenders, and we have made a raft of changes that will ensure community safety and justice for victims.”

Caldicott argues that blanket laws for serious sexual offenders impinge on the judicial discretion, and pressures a rehabilitation system designed to help offenders.

“A judge who thinks that it’s appropriate to give that person a suspended sentence or home detention can’t do so,” he said.

“This is no reflection on the correctional services, they try to do the best I can – but clearly their resources are stretched. It’s far better for a person to receive rehabilitation treatment in the community.”

In a statement, the SA Bar Association told InDaily it had witnessed the Sentencing Act enforce undeserved penalties at a financial expense to the community.

“Real examples of unjust, ill-fitting sentencing results are growing – results which would offend the community’s sense of what is fair and right, and which mean some people are being imprisoned where that is not warranted,” it said.

“The SA Bar Association is opposed to the limits that have recently been placed on sentencing alternatives available to Judges and Magistrates in South Australia.

“Confidence in the criminal justice system is eroded where Judges and Magistrates are required to impose penalties which are not the best ones for the circumstances. Confidence is maintained only by the fair and appropriate disposition of each case.”

President of the Law Society Amy Nikolovski said a flexible approach to sentences was necessary.

Situations where, for example, a person who has consensual sex with someone who misrepresents their age could be automatically put in jail under these laws,” she said.

“A ‘one-size-fits-all’ approach to justice is never a good idea and inevitably leads to injustices.”

The report from both organisations will be presented to Chapman in the next couple of weeks.

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