Northern Territory Second Reading Speeches

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CRIMINAL CODE AMENDMENT BILL 2002


Madam Speaker, I move that the bill now be read a second time.

This bill is introduced with the intention to overcome difficulties that are created in section 357 of the Criminal Code. The bill is an attempt - and I do not really put it any higher than that - to grapple with the issues that are of critical importance to us all, and it is my hope that debate and further discussion will ensue so that, ultimately, a bipartisan approach can be adopted to this vexing area.

Put simply, the community must be protected from violent offenders who are declared unfit to plead and who, as a result, are not dealt with by a court appropriately. The fact is that often violent offenders are released into the community who can be repeat offenders who commit particularly violent crimes. For instance the case of Anthony Scotty in Alice Springs illustrates the difficulties created by several parts of the Criminal Code. Anthony Scotty was not, most would argue, dealt with sensibly by the criminal justice system over a period of years. Ultimately, a man who had a history of violent offences was allowed to roam the streets of Alice Springs, and he ultimately murdered a local women, Rosemary McIntyre. The inquest into her death illustrated that the justice system was not well equipped to deal with a man who had organic brain damage. Had the system been better, arguably Rosemary McIntyre would be alive today.

Today in Alice Springs, in particular, there are violent offenders roaming the streets with brain damage - often from petrol sniffing - and who, for one reason or another, are deemed by a court to be unfit to plead. Unless legislators take action to change this situation, it will be a matter of time until another innocent person is murdered. Hence, the introduction of this bill is an attempt to generate healthy, bipartisan discussion with a view to changing at least one part of the relevant legislation, for the benefit of those for whom we govern.

The bill proposes changes to section 357 of the Criminal Code. The salient parts of section 357 are subsections (3) and (4), which read as follows:

(3) If the court finds that he …

An accused person:

That is, fit to plead to the charge:

Subsection(4) reads:

Pursuant to subsection (3) there are, put simply, three options or three dispositions available to the court when dealing with an accused person who is unfit to plead and they are, for all intents and purposes, defined in subsection (3). In simple terms the options are:

To discharge the accused. That is a significant concern for many in the legal profession, as well as members of the public, because the effect is that the subsections provide that offenders can be discharged into the community only to offend again. A typical example is a person who has permanent brain damage from petrol sniffing, who may not be fit for trail. As that person - based on medical evidence, of course - will never improve, it follows that the trial can never be held. In addition, such a person may not fall within the provisions of the Mental Health and Related Services Act and there are no other facilities suitable for protecting the community against the offender committing further crimes.

The second disposition available to the court, or the second option it has is to order that the offender be kept in custody until the court thinks fit. This is a problem because, as a result of the decision of the Queen v Jabanardi 1983 50 ALR 147, this means, in practical terms that, if a person is permanently unfit to plead, and once having been declared so by a court, he can be discharged. Again, this is an unacceptable risk and poses significant risks to the community.

The third option under subsection (3) of section 357, is to give bail to the accused - in other words, to release him on bail. This, in particular, is a troubling disposition because, if an offender is unfit to plead, he is also unfit to enter into bail conditions. So, it follows as a matter of logic that bail is often dispensed with. This means that offenders are not even subject to a variety of bail or protective measures a court can usually impose. In real terms, this means that offenders who are permanently unfit to plead are not held in custody, nor are they bailed. Instead, they are systematically discharged or released into the community. Hence, the extraordinary situation exists where a person may have been previously found to be unfit to plead and then discharged into the community; they will have been discharged regardless of whether they shoplifted or committed a violent assault.

In Alice Springs - and I’m sure the Attorney-General knows this well - there are a number of repeat offenders who have been declared by the Supreme Court as being unfit to plead. So that there can be no doubt, the type of offenders in question include the likes of Roland Ebatajitna and Seth Namatjira. Since they have been released by the court, they are free to roam the streets committing more crimes. Some of these offenders have histories of particularly violent offences and, indeed, a matter was in the Supreme Court in Alice Springs last week dealing with the ongoing difficulties posed by Roland Ebatajitna’s problems. This, in essence, is a dangerous revolving door. It is a minefield to discharge violent offenders into the community. A safeguard must be created to protect the public and this is necessary, particularly in central Australia, given the high rate of petrol sniffing and the link between this and violent offences.

As a result of the obvious difficulties created by section 357 and the risks posed to the community, the opposition’s view is that a legislative regime is required where, if an offender, on the facts, committed an offence, thereby disregarding the need to examine his mental state or his mental intent, he should be sentenced as if he were fit to plead, otherwise there will be a group of violent offenders who repeatedly commit crimes and who are systematically discharged by the court. It is noteworthy that every other jurisdiction in Australia has legislation on fitness to plead that says a court can still sentence a person previously declared unfit to plead. I think the leading jurisdiction is Victoria. In other words, just because an offender has been declared unfit to plead by a court previously he can, nevertheless, be dealt with by a court in other jurisdictions.

The central aim of this bill is to provide that a hearing can be held to determine, on the facts, whether the accused committed the act constituting the offence and, if so, the court can then detain that person for a certain period, thereby protecting the community and, for that matter, the offender. In terms of the bill, it provides that the existing subsections (3) and (4) of section 357 be omitted and substituted with new subsections (3) and (4). Those new subsections are fairly straightforward. The new subsection (5) provides that if an offender is likely to become capable of understanding the proceedings, he may be remanded in custody or admitted to bail, but if the court is satisfied that there is a risk of the person offending again, then pursuant to subsection (6), he must not be released into bail unless under the care and control of another person who is capable of understanding any conditions the court imposes. This will provide comfort and security to the community, it is therefore a useful and practical amendment.

In addition, subsection (7) provides that if it is unlikely that the accused will become capable of understanding the proceedings for the next six months, the court has some options that are not presently available to it under the current regime. The subsection clearly anticipates those who are permanently unfit to plead. Specifically, it provides that, in such a case, a hearing must be held to determine whether, on the facts, the accused committed the offence for which he is held, and the details of that are outlines in subsection (8). In the event that at hearing the court does find that the accused did commit the act then, in accordance with subsection (11), the court must then go on to deal with that person in accordance with the new section 357A.

Pursuant to section 357A, the court must either order that the person is to be detained in accordance with section 357B or discharge that person subject to the conditions the court thinks fit. However, the terms of any discharge contemplated by section 357A(1)(b), are limited and this is due to the inclusion of subsection (4) of 357A, which provides that if there is a substantial risk of the person re-offending or posing a risk to others, he will only be discharged if in the care and under the control of another person who is capable of understanding any condition that the court imposes. This significantly improves the current provisions which are so obviously unsatisfactory.

Finally, section 357B provides that if an offender is found to have committed an act, whether it be shoplifting or murder, an option available to the court is to detain the offender and the period of detention is to be not less than the period of imprisonment that would have been imposed having regard to factors outlined in subsections (a) to (c) which include considerations such as the offenders character, his history of offending, his mental condition and the public interest.

This bill affords protection for the community and gives the court practical options when dealing with an offender who is unfit to plead. The options included in the bill are workable and sensible and I know that there are people in the legal profession, and I suspect the judiciary, who are calling for this section to be worked on at the very least by government.

As I said at the outset, this bill is intended to promote discussion with a view to achieving an outcome that should have bipartisan support. As the number of violent offenders seems to be increasing the stakes are high. For my part I do not want the death of an innocent person on my conscious and for that reason I implore the government to look seriously at this bill.

I should also add that I became aware last week of the matter in the Supreme Court in Alice Springs involving Rowland Ebatajitna I assume that the Attorney-General has been advised of that. I understand that it is going back to court on 4 March. There is no better example I can illustrate than that case. It is for that reason that I commend the bill to members.

Debate adjourned.


 

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