Mandatory prison for sex offences: the effect of new sentencing laws By Andrew Culshaw

Mandatory prison for sex offences: the effect of the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019

ANDREW CULSHAW, LEN KING CHAMBERS

On 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 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

Parliamentary Debates make clear that this is to be interpreted as meaning that the offence occurred before the offender’s 21 st birthday.

The definition of “prescribed serious sexual offence” limits the offences to which this exception applies to objectively less serious (albeit unpleasant) sexual offences such as unlawful sexual intercourse, offences of indecency and lower end child exploitation material offences.

Amendments to suspended sentence provisions

The suspended sentence provisions of the Sentencing Act have been amended so as to preclude a suspended sentence for a defendant being sentenced as an adult for a “serious sexual offence” - s 96(3)(ba).

“Serious sexual offence” is defined by a combination of ss 96(9) and (10) so as to permit a court to suspend a sentence in the same circumstances as those in which a home detention order can be made pursuant to s 71(2)(b)(ii)(A) of the Act, considered above.

There is no equivalent in s 96 of the Sentencing Act to s 71(4). In other words, “special reasons” as defined in s 71(4) give rise to power to make a home detention order, but do not give a basis to suspend a sentence of imprisonment.

The power to impose a suspended sentence on home detention conditions for reasons of ill health, previously contained in s 96(7) of the Sentencing Act, has been omitted from the Act. This power had been overtaken in a practical sense by the creation of home detention as a sentencing option in 2016. However, its omission closes a potential opportunity for defendants in the new, more restrictive, sentencing regime for sex offences.

PRACTICAL IMPLICATIONS

The amendments have caused a shift in the way criminal practitioners view what might be considered low to midlevel sexual offences. The vast majority of sexual offenders are no longer eligible for a suspended sentence of imprisonment or a home detention order.

It takes little imagination to envisage circumstances that previously would have plainly constituted good reason to suspend a sentence of imprisonment, where the amendments will operate harshly on the offender. For example, a first offence of indecent assault, an offence of (consensual) unlawful sexual intercourse where the victim has deceived the offender about their true age, or a barely competent, intellectually challenged offender.

Where previously counsel were willing to accept a sentence of imprisonment was inevitable and focus on the question of suspension, the unavailability of that sentencing option has led to counsel seeking sentences other than imprisonment, usually in the form of a good behaviour bond pursuant to s 97 of the Sentencing Act. Anecdotally, courts have been receptive to submissions of this nature in an appropriate case.

The other type of case where the amendments have caused a shift in approach is that where previously the question of suspension might have been considered borderline. In such a case, defendants would frequently be advised that the remorse demonstrated by a plea of guilty might be the difference between going to prison and receiving a suspended sentence. That incentive to enter a plea of guilty is no longer in existence. It is anticipated that more sex cases will proceed to trial in light of the amendments; the alleged offender might “roll the dice” with little to lose by doing so. Therefore, the amendments might operate harshly not only on the offender, but also their victim who will be forced to give evidence at trial where previously the offender might have pleaded guilty.

In these circumstances, and bearing in mind the guilty plea discount scheme provided by sections 39 and especially 40 of the Sentencing Act, it is important that a prosecution case is rigorously analysed and a defendant comprehensively advised at an early stage. Whilst a 10% discount on sentence for a guilty plea entered shortly before trial may not be a substantial incentive to plead where a custodial sentence is inevitable, a 30 or even 40% discount for a plea entered at committal might encourage a defendant to give more sober consideration to his or her plea.

CONCLUSION

The Amending Act has taken away from the court a sentencing option that gave flexibility to be adapted to the circumstances of a particular case. It is crucial that a criminal practitioner advising a client charged with a sexual offence be alive to the amendments and give prompt, comprehensive advice on potential penalties and the benefits of an early guilty plea. B