ADVOCACY
Mandatory prison for sex offences: the effect of the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 ANDREW CULSHAW, LEN KING CHAMBERS
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n 23 May, 2019, the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act (“the Amending Act”) came into force. The Amending Act made amendments to the Sentencing Act and the Correctional Services Act. The amendments apply to all offenders sentenced after the commencement of the Amending Act, regardless of when the offending in question was committed. This article discusses the most substantive amendments to the Sentencing Act. Most commonly encountered by the criminal lawyer will be the prohibition on suspension of sentences of imprisonment for certain sexual offences. This will have the knock-on effect of lowering the bar for the categorisation of a defendant as a serious repeat offender for the purposes of Part 3, Division 4 of the Act. An offence is not one to which the Division applies if a suspended sentence is imposed. The removal of suspension as a sentencing option will bring many offenders closer to the “three strikes” threshold set out in s 53 of the Sentencing Act.
SENTENCING FOR “SERIOUS SEXUAL OFFENCES” – THE PRE-AMENDMENT POSITION Before the commencement of the Amending Act, a sentencing court was prohibited from ordering that a sentence for a “serious sexual offence” be served on home detention. “Serious sexual offence” is defined by s 71(5) of the Sentencing Act and includes most sexual offences contained within the Criminal Law Consolidation Act. The only exception to
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the prohibition on such home detention orders was the existence of “special reasons”, in respect of which the court was entitled to have regard only to the following matters: • The defendant no longer presenting an appreciable risk to the safety of the community by reason of advanced age or infirmity; • The interest of the community as a whole being better served by the defendant serving the sentence on home detention rather than in custody. The “special reasons” provision, s 71(4), did not expressly state whether it was necessary to satisfy both criteria, only one, or whether those two criteria were the matters to which the Court was to have regard in a weighing process to determine the existence or otherwise of special reasons, such that strict satisfaction of either or both was not necessary. No such limitation existed on the power to suspend a sentence of imprisonment for a serious sexual offence. The court was therefore able to impose a less serious punishment (a suspended sentence) but precluded from imposing a more serious punishment (home detention) except in limited circumstances. This anomaly was addressed by the Amending Act.
THE AMENDMENTS TO THE SENTENCING ACT In summary, the anomaly was addressed by largely precluding suspended sentences for serious sexual offences so as to bring the suspended sentence regime into line with the home detention regime.
Amendments to home detention provisions The Amending Act made two substantive amendments to s 71 of the Sentencing Act. The ambiguity in s 71(4) of the Act was one of the issues raised in the high-profile case of Vivian Deboo, which was described in the Parliamentary Debates as the “catalyst” for the Amending Act. Judgment in Mr Deboo’s case was reserved at the time the Amending Act came into force. Section 71(4) of the Act was amended so as to make clear that it is necessary for an offender satisfy both criteria to make themselves eligible for a home detention order. The Court of Criminal Appeal ultimately held that was the effect of the pre-amendment provision in any event: R v Deboo [2019] SASCFC 74 at [54]-[60]. The second substantive amendment slightly broadened the circumstances in which a home detention order might be made. Section 71(2)(b)(ii)(A) was inserted into the Act, which permits a home detention order where the offence is “a prescribed serious sexual offence that occurred in prescribed circumstances”. In summary, this amendment provides home detention as an option for a “Romeo and Juliet” offender who commits an offence that falls short of the most serious sexual offences. “Prescribed serious sexual offence” and “prescribed circumstances” are defined in ss 71(5) and (6) of the Act respectively. It is not proposed to describe those subsections exhaustively, however it is important to note that for prescribed circumstances to be made out, the offender must be aged 20 years or less at the time of the offence. The
