CRIMINAL LEGISLATION AMENDMENT BILL 2009
Agreement in Principle
Debate resumed from an earlier hour.
Mr GREG SMITH
(Epping) [10.36 a.m.]: I lead for the Opposition on the Criminal Legislation Amendment Bill 2009. The Opposition does not oppose the bill, which amends various Acts. However, we make the point that, as the Leader of the Opposition said in the upper House, the nature of some of the changes—particularly two of the more important amendments—justifies having separate bills and separate debates. The stated purpose of the bill is to make miscellaneous amendments to legislation relating to crimes, criminal procedure and other matters. The most significant of the amendments proposed is to section 66A of the Crimes Act 1900 to include a maximum penalty of imprisonment for life where a person has sexual intercourse with a child under the age of 10 in circumstances of aggravation—namely, where the alleged offender breaks into any dwelling house or other building with the intention of committing the offence or any other serious indictable offence.
Section 66A (3) provides a number of other circumstances of aggravation that attract life imprisonment. They include that at the time of or immediately before or after the commission of the offence the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who was present or nearby. Other circumstances are that the alleged offender is in the company of another person or persons, and the alleged victim has a serious disability or cognitive impairment. There are other circumstances, so this is not such groundbreaking legislation, as may have been suggested or hinted at in the early media coverage given to the amendments. Nevertheless, the bill deals with a serious offence. We were all horrified when we heard that a judge had handed down a two-year suspended sentence in the case of a four-year-old child who was raped after a man broke into her home.
A serious indictable offence is defined in section 4 of the Crimes Acts 1900 as an indictable offence that is punishable by imprisonment for life or for a term of five years or more. Presently section 111 of the Crimes Act provides that when a person enters any dwelling house with intent to commit a serious indictable offence, they shall be liable to imprisonment for 10 years. Section 112 of the Crimes Act provides a penalty of 14 years for breaking into any house and committing a serious indictable offence, and section 113 provides a penalty of 10 years for the offence of breaking into any house with the intent to commit a serious indictable offence, but the sentence is increased to 14 years for an aggravated offence and to 20 years for a specially aggravated offence. The circumstances of aggravation and special aggravation are set out in the Crimes Act.
The second major amendment is the move-on amendment, if I may refer to it that way, relating to section 198 of the Law Enforcement (Powers and Responsibilities) Act 2002, which is colloquially referred to as the LEPR Act. That Act will be amended to provide police officers with power to give a direction to move on to groups of three or more intoxicated persons in a public place. The maximum period for which the group is unable to return is up to six hours. The new subsection applies only if, first, a person's speech, balance, coordination or behaviour is noticeably affected, and it is reasonable in the circumstances to believe that the affected speech, balance, coordination or behaviour is the result of the consumption of alcohol or any drug; and, secondly, the direction is reasonable, and the police officer believes on reasonable grounds that the person's behaviour as a result of the intoxication is likely to cause injury to persons or damage to property, or is otherwise a risk to public safety. I will deal with that in more detail later.
The bill provides for amendment of other Acts. It will amend the Child Protection (Offenders Registration) Act 2000 to specify seven days rather than 28 days, or 14 days if the person is not in New South Wales, as the period within which an initial report of the person's relevant personal information must be made to the Commissioner of Police. That would apply in a case in which a person has been convicted of a specific offence that is covered by the Child Protection (Offenders Registration) Act 2000, such as an offence of the sexual assault or indecent assault of a child.
The Confiscation of Proceeds of Crime Act 1989 will be amended to provide that an offence under section 23A of the Drug Misuse and Trafficking Act 1985 in respect of the enhanced indoor cultivation of prohibited plants in the presence of children, which involves more than a small quantity of prohibited plants within the meaning of that Act, is a drug trafficking offence for the purposes of the Confiscation of Proceeds of Crime Act 1989. The bill also amends the Crimes (Domestic and Personal Violence) Act 2007 to make it an offence for a person to attempt to commit an offence under section 13 (1) in respect of stalking or intimidation with intent to cause fear of physical or mental harm, or section 14 (1) of that Act in respect of the offence of contravening an apprehended violence order. The amending provision relating to the Crimes (Sentencing Procedure) Act 1999 in schedule 1.5, item  will remove an incorrect reference to a child under 10 years of age from item 9B of the table of non-parole periods so that the subsection now applies to persons under 16 years rather than to persons under 10 years of age.
Membership of the New South Wales Sentencing Council is increased from 13 to 15 members. The two additional members will be appointed by the Attorney General. One of the new members is to have expertise or experience in criminal law or sentencing, and the other is to have academic or research expertise, or experience of relevance to the functions of the Sentencing Council. The Sentencing Council plays an important part in reviewing appropriate sentencing practices. The Ombudsman's report under section 344A, which relates to the impact of penalty notices on Aboriginal and Torres Strait Islander communities, is to be provided to the Attorney General and the Minister for Police by 31 August 2009 rather than 31 May 2009. The Inclosed Lands Protection Act 1901 will be amended to provide that any civil action against any person shall be commenced within two months. Section 179 of the Criminal Procedure Act 1986 will apply in respect of certain criminal proceedings, rather than serious indictable offences—but I will check that—and will require them to be commenced within six months after the offence is alleged to have been committed. Consequential amendments will be made to the Mental Health Legislation Amendment (Forensic Provisions) Act 2008.
I turn now to the amendment of section 66A of the Crimes Act 1900 that hopefully will deter predators who might otherwise break and enter any dwelling house with the intention of committing the offence of serious sexual assault or any other serious indictable offence. It is a bit difficult to envisage how an increase in the penalty of 25 years, which should already be a strong deterrent, to a maximum rather than mandatory penalty of life imprisonment will make much difference. Nevertheless, the Coalition supports any toughening of laws that will protect children. The move-on legislation may give police more perceived power to disperse rowdy crowds. Protections are built into the legislation to ensure that a direction must be reasonable, that the belief of the police officer regarding a person's intoxication is based on reasonable grounds and that their behaviour is likely to cause injury to a person or damage to property, or is a risk to public safety.
It is arguable that the proposed amendment of section 66A is just another example of the Government introducing piecemeal legislation. As I have stated previously, in my view the proper approach for this Government to adopt would be to provide the Court of Criminal Appeal with power to impose a sentence that is appropriate to the crime. As a stated in a media release, increasing a maximum sentence from 25 years to life imprisonment is not the complete answer to the proper administration of justice in this State. We do not just need more laws to protect children under 10 years of age from burglars who molest them; we need judges to impose appropriate sentences for these abominable crimes. We need to give the courts the power to apply the existing legislation.
Instead of giving the Court of Criminal Appeal the power to re-sentence rapists to a term that the trial judge should have imposed in the first instance, this tired Government has brought in yet another bill. Increasing maximum sentences is worthless if judges and magistrates do not use them. In a recent case against Ronald King involving the rape of a four-year-old girl, the Court of Criminal Appeal, despite increasing the sentence to a total of seven years imprisonment, sent a clear message to the Rees Government that it could not increase the sentence further because it was a Crown appeal. I believe the doctrine of double jeopardy has outlived its purpose. If the Court of Criminal Appeal had the appropriate power to impose a sentence at the top of the range rather than a sentence at the bottom of the range—which is where courts have stated in the past they have to go in most cases—then justice would be done, and would be seen to be done.
It is suggested that section 66A of the Crimes Act 1900 applies only when the Crown can prove an intention to commit a serious sexual crime against a child under 10, or any other serious indictable offence. It seems to me anomalous that if a man breaks into a house with the intention of collecting his own property, comes across a child and rapes the child, he should be liable to a lesser penalty than if he intended to steal something. There may be potential for a predator to argue that when he broke into and entered the house he did not intend to commit any serious offence and had a right to take his own property. That does not exonerate him from breaking into the house, which is a separate offence, but he may have a legitimate defence if he took his own property.
With respect to the move-on power provided under the Law Enforcement (Powers and Responsibilities) Act 2002, the Attorney General stated in the agreement in principle speech that this will give police the power to disperse a group of boisterous, noisy football fans hanging around a shopping centre, for example. But police have the power only to move people on. Areas such as Chatswood, Blacktown and Parramatta have various shopping centres that are often near hotels and bars, where people could move to and create trouble again. Do police have to keep following these groups around? Police have the power only to give a move-on direction to an intoxicated person who is in a group of three or more intoxicated persons. If the group causing trouble comprises only two intoxicated persons and the others are clear-eyed teetotallers, they cannot be moved under this power. The police have a hard time, and I do not want to make their job any harder.
Certain areas of the city are very dangerous, especially at night and on weekends. Ordinary citizens attending a party or having dinner at the movie theatre end of George or Pitt streets near Liverpool Street take their lives into their own hands, as do the police. We hear of many young people being badly injured in that area, so any measures to disperse groups of intoxicated persons should be applauded. I note that the definition of "intoxication", which was criticised by some members of the upper House, is consistent with the definition that applies to publicans under the responsible service of alcohol provisions. It is sensible to have consistency, even though the definition may not be as tough as the previous one that led to intoxicated persons being detained in custody. Police do not have sufficient resources to deal with all drunks and troublemakers, so the power to move people on is reasonable. How it will work in practice remains to be seen. Naturally, the Government likes the media attention.
Mr John Williams:
It is all spin.
Mr GREG SMITH:
It is spin.
ACTING-SPEAKER (Mr Thomas George):
Order! Members will direct their comments through the Chair.
Mr GREG SMITH:
The Government uses spin to make it look as though it is doing something. The Government should put more trained police into problem areas. The Law Society of New South Wales, the Bar Association, the Director of Public Prosecutions and Legal Aid were consulted about the bill. However, because of the late notice—the bill was introduced last Thursday afternoon in the other place—no submissions have been received. I ask the Government to stop the practice of introducing important social legislation with minimal notice. Organisations such as the Law Society, the Bar Association, the Director of Public Prosecutions and Legal Aid are important, and the Opposition values their input and their submissions on law and order in this State. On many occasions the Government gives the Opposition little notice of legislation, and those groups receive no notice at all. Unfortunately, we have come to expect such behaviour from this tired and incompetent Rees Government. It is inexcusable for the Government to treat those professional associations with contempt, and the practice must stop.
In summary, the Opposition is committed to putting the people of New South Wales first. We stand for the strong and fair administration of justice in this State. We call upon the Government to put more police on the streets in troubled areas and to do more to discourage alcohol abuse in schools. We call on the Government to limit alcohol advertising and to urge the Commonwealth to limit or ban such advertising. The Opposition does not oppose the bill.
Mr DAVID HARRIS
(Wyong) [10.55 a.m.]: I will make a brief contribution on the Criminal Legislation Amendment Bill 2009. I note that the bill makes miscellaneous amendments to crimes, criminal procedures and other matters. I refer in particular to the new police power to move on people who are intoxicated because that greatly affects my community. The Government makes no apology for empowering police to stop drunken groups from becoming violent and ruining nights out for everyone. Residents in my electorate are pleading for this type of action. In the early part of the evening people drink and congregate, but later in the night they become destructive. In Toukley, shop windows are broken regularly, garbage bins are set on fire, and fences and letterboxes are attacked. These may not be major incidents but they are serious to the individuals concerned.
People see such crimes occur firsthand. If police had the opportunity to move groups on earlier, those incidents may not occur. The Government is changing the law to ensure that police can intervene earlier, before people become seriously intoxicated, to move groups on and avoid dangerous situations involving public drunkenness. It is absurd to make police wait until people are falling over or yelling drunken abuse before they can take action and ask them to move on. By that stage the damage has been done. In Sydney, after sporting fixtures large groups often congregate around railway stations and elsewhere and police officers have to stand by until the damage starts to occur. It is then clearly too late.
Police will be able to exercise their power when people are noticeably intoxicated—that is, when officers observe that speech, balance, coordination or behaviour is affected. As the member for Epping stated correctly, the power mirrors the laws relating to publicans in terms of the responsible service of alcohol. It is sensible that the laws are consistent, and it is important the community understands that. Additional safeguards are in place so that police cannot exercise their power unless they believe, on reasonable grounds, that the behaviour is likely to cause injury to any other person or damage to property, or to constitute a risk to public safety. That gives police the discretion to monitor a situation and intercede if necessary. The new laws simply bring police powers into line with the definition of "intoxication" in the Liquor Act. The legislation has been streamlined and clarified for members of the public, police and the liquor industry.
It is disturbing that some public discussion of the changes to the liquor legislation has suggested incorrectly that the Government is criminalising slurring in public or other behaviours that could be related to drunkenness. The media occasionally call on the Government and police to do certain things but when the Government reacts it is criticised for its actions. The modern media try to create stories. Once upon a time the media reported stories; now they like to provide social commentary and play many other roles. A lot of people in the community are getting a little sick and tired of that. They would rather have the media report the news and journalists not go around making up stories in order to sell newspapers. I will probably not get a good run in my local newspaper after saying that, but it needs to be said because people are getting sick and tired of that type of behaviour. To sell advertising the media come up with any story. It does not matter whether the story is based entirely on fact; if there is a skerrick of truth the media will use it, and members of the public do not like that. That ends my sermon for the day.
The reforms also will not impose fines on people for being intoxicated. A fine will be imposed only if a person refuses to obey a direction from police. That is fair enough; I do not think anyone would disagree with that. Sometimes people have a little too much to drink, but if the police ask them to move on they should not be able to refuse to do so. People are always saying that there is no longer any respect for the police. Certainly we must ensure that there is respect and support for the police because they do a good job in difficult circumstances. Generally in society today everybody wants to put responsibility for solving all the problems onto the police. In some communities people should look after their young people a little better. I am not singling out a particular community because it applies across the board in my community. If parents knew what their young people were doing at night, if young people could justify why they were out at two or three o'clock in the morning, then some of the current problems would not exist. It is easy to blame the police but some people should have a good, hard look at themselves.
Not one member of this House would agree that it is inappropriate to punish a person who refuses to obey a lawful direction from a police officer. These powers are necessary for police to intervene at an early stage to prevent crime and antisocial behaviour. The community is asking for this sort of action. People are sick and tired of idiots causing destruction in the community. They are unable to control their alcohol consumption and everyone else suffers for it. I support the bill, particularly the provisions dealing with intoxicated persons.
Mr STEVE CANSDELL (Clarence) [11.02 a.m.]: I support the Criminal Legislation Amendment Bill 2009. I have very strong feelings about the part that amends section 66A of the Crimes Act 1900 relating to aggravated sexual assault against a minor under 10. I support the rest of the legislation. I believe that police need extra powers to move people on, but we also need extra police numbers to exercise those powers. The police have been given all these extra powers—I support the bikie gang legislation we pushed through yesterday—but we need more police to ensure that we make the legislation work. It seems to have taken a fairly serious incident to shake this Government into realising that more needs to be done to protect our children. In November last year a 24-year-old man from Maclean broke into a house at Gulmarrad. There was no intent at the time he broke into the house—this is where the legislation breaks down: there must be intent—and he went into a bedroom, took the pants off a four-year-old child who was asleep and sexually assaulted her. The offence was serious.
Mr Barry Collier: Has this been dealt with in the courts?
Mr STEVE CANSDELL: Yes. The man then walked out of the bedroom—the little girl was left shaking, crying and sobbing—and got a drink out of the fridge. He then tried to break into the car belonging to the girl's grandmother—the girl was staying with her grandmother at the time. The man then took off. He was arrested and there was a DNA match. His solicitor basically told him to plead guilty or he would get a longer sentence. So the man pleaded guilty. Judge Chris Geraghty, since retired—that is a blessing for all of New South Wales—said that although it was a heinous crime it was at the lower end of the scale. I will not read from the report. Although this was a disgusting, heinous crime against a four-year-old child, the judge said it was at the lower end of the scale and gave the man a two-year suspended sentence.
The man spent 14 months in jail. He was also on remand for other break and enter charges. He had a string of convictions as long as your arm for break and enter, assault, theft—you name it. And the judge let him go! A report stated that the offender was affected by alcohol and had problems, but he never considered the girl. Indeed, it further stated that there was no evidence of any long-lasting effects on the girl: the sexual assault was at the lower end of the scale, and the girl was not badly damaged. I think the report states that no major harm was done to the girl's private parts. However, when the girl was taken to hospital an examination showed that she had been damaged. The girl also has long-term psychological damage. Her sister has to get into bed with her each night to stop her from shaking, just so she can go to sleep. She even has nightmares to this day. She keeps asking her parents, "Will that man come again? Is he in jail?"
Sadly, the man was released on a two-year suspended sentence. It took a month for the media to pick up the story, and it is great that the media picked it up. Then the Opposition picked up on it. The Attorney General, to his credit, acted quickly once the case was brought to his attention, and the Director of Public Prosecutions [DPP] appealed against the sentence. Although the DPP appealed, there was limited power to impose a sentence in the top range. The longest sentence the court could impose on the offender was seven years, but at least he is behind bars. The sad thing is that legislation provides for maximum sentences of 25 years or life. However, while there is no minimum sentence for offences at the bottom end of the scale, a misguided judge, who is out of touch with the community and its expectations, will let an offender walk free.
In cases of aggravated sexual assault against children under 10, under section 66A of the Crimes Act, the mandatory minimum sentence should be 10 years in jail. We are not talking about someone littering and then going to jail or a mandatory sentence across the board; we are talking about protecting children by introducing guidelines for judges. The majority of judges do a good job. However, when a person can walk the streets after having done heinous things to a little girl the law should provide some protection by ensuring that there is a minimum sentence available to judges. Then if a judge wants to give an offender life, 25 years, 15 years or whatever, they can.
But there should be a mandatory minimum sentence to ensure that young people are protected. Nearly every week we hear about the attempted abduction of young children across New South Wales and in Sydney in particular. We also hear about little kids who are abducted and dragged into toilets and molested. If these grubs, these parasites, these paedophiles, these predators knew that they would go to jail for a minimum of 10 years if caught I guarantee a lot of them would desist. I support the Criminal Legislation Amendment Bill 2009 in principle. I support its move-on powers and the confiscation of proceeds of crime from criminals. While the amendment to section 66A of the Crimes Act has sent out a message to criminals, it does not give our young the protection they deserve.
Mr FRANK SARTOR (Rockdale) [11.10 a.m.]: I take this opportunity in the debate on the Criminal Legislation Amendment Bill to address criticisms raised in an opinion piece in the Sydney Morning Herald that suggest that the Government's changes to the alcohol legislation is "a back door means for incarcerating drunk Aboriginal people". The Government completely rejects that assertion. The changes to alcohol laws do not criminalise slurring in public, nor are the laws activated when people are deemed drunk, as the article states. Rather, the trigger for police to use their move-on powers is an assessment that as a result of the group's intoxication their behaviour is likely to cause injury to any other person or persons, or is likely to cause damage to property or otherwise gives rise to a risk to public safety.
The reform gives police an early intervention power that will enable them to defuse potentially dangerous situations before they escalate into more serious incidents. The Government should be commended for so doing. The reforms will assist police in alcohol enforcement operations and are an important measure to curb alcohol-fuelled offending behaviour. I will also address the comments made by the Opposition that the new laws are a stunt. The sexual assault of children is one of the most abhorrent crimes, and the Government makes no apology for bringing the full force of the law to bear against perpetrators of that crime. If an offender commits the offence of sexual intercourse with a child under 10 in the course of committing a break and enter that will be considered an aggravating circumstance, raising the maximum sentence from 25 years to life.
Last week the member for Epping claimed on radio 2SM that this important reform was a "stunt". That statement is a slap in the face to the victims of child sex predators. The member for Epping should ask the victims of child sexual assault whether they think these laws should be dismissed as insignificant. Howard Brown for the Victims of Crime Assistance League and Hetty Johnson from Bravehearts have both conveyed their support for the reforms and congratulated the Government on introducing them. These laws were introduced to criminalise the sort of crime committed by Ronald Dean King, who broke into a house in Grafton and sexually assaulted a four-year-old girl. The Government moved quickly on the matter at the time. On 24 April 2009 the member for Clarence praised the Government on the ABC and said:
I appreciate Minister Hatzistergos stepping in as quick as he did once it was brought to his attention.
Today in the House he again complimented the Attorney on his action. However, the member for Clarence made an error when he said the appeal court in the Ronald Dean King matter was constrained to give a maximum sentence of seven years for child sexual assault. In fact, the maximum sentence is currently 25 years. The member for Clarence also made an incorrect statement on another point about the relevant mens rea involved in the break and enter. In fact the aggravating circumstance is that the offender who commits the offence of aggravated sexual intercourse with a child under the age of 10 during a break and enter intended to commit the sexual assault or any other serious indictable offence.
I turn my attention back to the member for Epping, who does not seem to support the tough laws that target violent paedophiles. We know, for example, that in January this year under a banner of "Truce on hardline sentencing" the member for Epping in a tell-all article said he wanted to focus less on jail time. Does that mean that under the member for Epping sex offenders will escape the tough measures that this Government has imposed? The Leader of the Opposition needs to take stock and pull the member for Epping into line and clarify what is the Opposition's real stance on child sexual assault. This is an important suite of amendments to tighten our criminal laws. The amendment relating to child sexual assault ought to be unanimously welcomed in this House. I am concerned that the Opposition is quibbling about what seems to be a clear-cut community view and what should be a unanimous view of this House. It should back the strengthening of these laws and do so expeditiously. I commend the bill to the House.
Mr GEOFF PROVEST
(Tweed) [11.15 a.m.]: The Criminal Legislation Amendment Bill 2009 contains a large number of amendments to legislation. I refer in particular to section 66A of the Crimes Act, which is amended to include a maximum penalty of life imprisonment when a person has sexual intercourse with a child under the age of 10 in circumstances of aggravation. This is a serious offence and I took offence when the member for Rockdale implied that the Opposition was not strong on child abuse and paedophilia. I assure the member for Rockdale that the opposite is the case. We take it extraordinarily seriously.
I almost took it as a personal affront when he referred to a number of Opposition members who used this matter for spin. This is a very serious matter. I support the member for Clarence, who described the offence committed in Grafton as a horrendous and hideous crime that no one would want to happen to a child. We need to do more to protect children. We need to send out a clear message to perpetrators of those crimes that they will be dealt with harshly. I concur with the opinion of the member for Clarence that maximum penalties are seldom handed down by the judiciary even when the public and the community expect and demand that such penalties be imposed.
I refer also to the amendment to section 198 of the Law enforcement (Powers and Responsibilities) Act 2002 giving police officers the power to give a direction to move on to groups of three or more intoxicated persons in a public place. Unfortunately, in the Tweed—in Kingscliff and Pottsville—a series of events occurred on Australia Day 2009. The police did an excellent job and charged four offenders in relation to the events in Pottsville involving a lot of young people who had consumed significant amounts of alcohol. The Kingscliff riot can be seen on YouTube, as can the Cronulla riots, which were a dreadful disgrace.
While this legislation is a move in the right direction, it does have some holes in it. In my previous working life for approximately 20 years I was a licensee at various licensed clubs, including the Revesby Workers Club and the Tweed Heads Bowls Club. I have a lot of experience dealing with drunken people. I understand the direction in which this legislation is headed, but at times it is hard to determine whether each member of a group is intoxicated or only one or two of them are. Amongst the drunk people at Kingscliff there were sober people.
The bill should go further and provide police with the power to move on all people, because it is a reflection on the community that drunken people are on the streets. The bill inserts a new section 198 in the Liquor Act 2007 to define "intoxication" as having affected "speech, balance, co-ordination or behaviour" that is "the result of the consumption of alcohol or any drug". At times that would be hard to determine. Police in my area, as in the Lismore area, are under strength. Recently 320 officers graduated from the Police Academy: 80 per cent went to Sydney and 20 per cent went to regional areas. When will those who make the decisions realise that regional areas, and particularly the Tweed, where a lot of tourists visit, need more police? The Australia Day event this year, with many drunken people on the streets, was an exact duplicate of the year before. But the local police superintendent, who does a fine job in the Tweed area, had no more staff.
The Tweed has 980 authorised strength, but 24 are on long-term sick leave. The bill does give police extra powers, which is a move in the right direction, but that has to be backed up with sufficient police numbers. I have said repeatedly that it is no use introducing legislation to give police more power without giving them the necessary resources. Queensland police powers are far more stringent in that regard. Once again, we have a cross-border issue. Queensland police will often move drunken people across the border into New South Wales, because of the differentiation in the laws. Once again, we are taking an export product from Queensland.
I have asked many times for greater cooperation between New South Wales police and Queensland police. The Government has made a move in Albury in a similar situation but, unfortunately, the superintendent in charge of the relevant program has been moved back to Sydney, and I have heard no more about it. I have raised this issue on a number of occasions. The bill amends the Confiscation of Proceeds of Crimes Act 1989 to provide that an offence under section 23A of the Drug Misuse and Trafficking Act 1985 involving indoor cultivation of prohibited plants in the presence of children is an offence for the purposes of the Confiscation of Proceeds of Crime Act 1989. Unfortunately, recent figures have indicated that the quantities of illegal drugs per head of population that have been confiscated in the Tweed are the third highest in the State, just behind those of Kings Cross.
The Tweed has become a large drug-manufacturing portal for south-east Queensland. I am particularly concerned that that occurs in the presence of children. As the bill makes a number of moves in the right direction, I do not oppose it. However, I strongly believe that it has not gone far enough. For laws to be effective we need to adequately resource the police. Once again, I am 100 per cent for the Tweed.
Mr PAUL GIBSON
(Blacktown) [11.23 a.m.]: It is a pleasure to support the Criminal Legislation Amendment Bill 2009. The object of the bill is to make miscellaneous amendments to legislation relating to crimes, criminal procedure and other matters. As members have spoken on the provisions relating to children—and there is no doubt that children are our future—and I support everything said about that, I will address the other provisions contained in the bill. The amendments are very much needed and very much welcomed. The introduction of this bill was anticipated by the media, and it has met the test. The bill makes changes to police move-on powers in relation to intoxicated groups. Legislation provides police with two kinds of move-on powers. General move-on powers were provided when the Law Enforcement (Powers and Responsibilities) Act was assented to in 2002. Section 197 of the Act sets out the circumstances in which police can direct people in a public place to move along or disperse. It involves situations, for example, in which people are obstructing people or traffic, harassing or intimidating other people, or are engaged in buying or selling drugs. That power is used thousands of times a year without incident. Very few people refuse to follow the direction.
The 2003 Alcohol Summit recommended that a specific power be given to police to disperse intoxicated groups. This was restated as an election commitment in 2007 and was introduced shortly after the Government was returned. Section 198 was the new provision that gave police the power to disperse groups of three or more intoxicated people in public places whose behaviour caused police to believe, on reasonable grounds, that injury to persons or damage to property was likely. "Intoxicated" is defined as "appears to be seriously affected by alcohol or any drug". In theory that definition seemed appropriate, but in practice it sets the benchmark too high. Police were not always sure that the level of intoxication of a group, even if they were behaving badly, met the level of "seriously affected". It also was inconsistent with the definition of "intoxicated" in the Liquor Act 2007, which police also have a role in enforcing.
The problem was not that people were refusing to obey a direction; it was that in some cases police were unsure that the direction could be given lawfully. To the credit of the police, rather than risk using the powers unlawfully, they brought the problem to the Government and asked for it to be fixed—to make the definition of "intoxication" in the Law Enforcement (Powers and Responsibilities) Act 2002 the same as that in the Liquor Act 2007. That is exactly what this bill does. Police may now use move-on powers in relation to people who are "noticeably affected" by drink or drugs. It is important to note that a direction can be given only if it is reasonable in the circumstances for the purpose of preventing injury or damage, or eliminating the risk to public safety.
Furthermore, a direction to not return to a public place has a maximum duration of six hours, which is consistent with the power in the Liquor Act 2007 to disperse ejected or rejected patrons from licensed premises and require them to not remain in, or return to, the vicinity of the premises. It is important to re-emphasise that the power will not authorise the giving of directions to groups of people simply because they are intoxicated, or appear to be so—and the power does not criminalise the act of being drunk in public. Its sole focus is to disperse intoxicated groups only if there is a belief on reasonable grounds that their behaviour or presence in the public place is considered likely to cause injury to other people, damage to property, or otherwise give rise to a risk to public safety. It is a sensible and measured law enforcement power. For a long time that law needed to be defined in the way the bill has defined it. We often hear a lot in the media about intoxicated people, binge drinking and associated matters. The bill gives police the power to deal with that on a more rational basis than previously. This week I received a letter from a publican, which stated:
Ignoring the fact that there are 14,327 licensed premises in New South Wales and only 2074 Pubs 65% of all assaults occur away from Licensed Premises, and that two-thirds of Liquor purchased is consumed away from Licensed premises
In other words, nearly 70 per cent of all alcohol consumed by society today is not consumed in hotels, clubs or restaurants; it is consumed in homes. I do not know what we can do in this regard as lawmakers. That is where the problem raises its ugly head. This publican made a very good point. Last year 320,000 persons went through the doors of his hotel and he served approximately 78,000 meals. However, because 26 incidents were reported he found his hotel in the top 50 most violent hotels and he has received a great deal of publicity as a result. He told me that not one of the reported assaults went to court and that they represented .00008 of 1 per cent of the people who went through his hotel.
This amendment is a good amendment, there is no doubt about that, but at some stage we have to put responsibility back onto people. I have often advocated that it should be an offence to be drunk and I think that would fix most of the problems we are talking about today. The changes to the definition of an "intoxicated person" in section 198 of the Act will allow police to use their power to disperse groups of people who are "noticeably affected" by alcohol or drugs and are likely to damage property or threaten public safety, rather than being "seriously affected" by alcohol. The test is now the same in relation to this section of the Act as it is in section 5 of the Liquor Act 2007. Police have advised that the changes to the definition will be of assistance in alcohol enforcement operations, which may include offences under the Liquor Act 2007 as well as the Law Enforcement (Powers and Responsibilities) Act 2002.
I also want to discuss briefly the changes to the Child Protection (Offenders Registration) Act 2000. Currently a person who has previously been required to report under the Act but whose reporting period has expired, and who is subsequently sentenced in relation to a registrable offence, has 28 days in which they can make their initial report to police. However, a person who becomes a registrable person for the first time has only seven days in which to make their initial report. This amendment corrects this anomaly and ensures that all persons sentenced for a registrable offence, whether they have been previously required to report or not, must now report to police within seven days of being sentenced. That is a very sensible amendment.
Finally, I refer to the amendment to the Confiscation of Proceeds of Crime Act 1989. This Act is being amended to expand the definition of "drug trafficking offence" to include offences under the Drug Misuse and Trafficking Act 1985, which involve the enhanced cultivation of prohibited plants in the presence of children where more than a small quantity of the prohibited plant is involved. This amendment will ensure that people who commit these offences, showing no regard for the dangers to which children are exposed, can also be subject to applications by the State to deprive them of the proceeds and benefits derived from their crimes. I support the amendments.
Mr JOHN WILLIAMS
(Murray-Darling) [11.33 a.m.]: I will speak briefly on the Criminal Legislation Amendment Bill 2009. First I will address some comments made by a future Premier of New South Wales, the member for Rockdale, who is learning very quickly to take things out of context. He stood up and slammed the good name of the member for Epping. The member for Epping seems to be a great threat to this Government because he is happy to go out and tell people the truth and point out to the Government where it is failing. The member for Rockdale did a perfect job; he ticked all the boxes for a future Premier. He was quite happy to misquote the member for Epping because he recognised the member for Epping is a threat to this Government because he constantly reminds the Government of its shortcomings, particularly in relation to law and order. We heard the comments of the member for Epping in relation to sentencing and a case in which a maximum sentence was available but unfortunately the judicial system did not opt for that sentence. The point he was trying to make was about the frustration suffered by people who want to see the law enforced and the fact that the community wants to see the fair application of justice for some of these crimes.
The area I am particularly interested in is the move-on provisions in the Law Enforcement (Powers and Responsibilities) Act 2002. A couple of months ago the Community Safety Precinct Committee in the Deniliquin Area Command raised the matter of changes to the smoking laws in hotels, which has led to hotel patrons congregating on the footpath to smoke. It is creating a major issue for police because obviously they cannot get those people to move on. The hotel patrons are spilling onto the footpath and intimidating passers-by. There is some degree of intoxication and there is also the opportunity for disputes to start with passing pedestrians or within the group of smokers. David Simmons, the area commander in Deniliquin, is frustrated because his officers are not allowed to move these people on, but that is compounded by the fact that most of his officers are doing prisoner escort duty and are not available to carry out the type of policing that is required to ensure that the streets are safe for the residents of Deniliquin. That needs to be looked at because it is a growing problem. I think most members of this House would have seen patrons of hotels standing outside those venues smoking cigarettes and it is only a matter of time before this causes a major issue.
Mr MALCOLM KERR
(Cronulla) [11.36 a.m.]: The member for Murray-Darling mentioned the atrocious contribution made by the member for Rockdale and his attack on the member for Epping. I want to respond to his attack on another great servant of the people, the member for Clarence, who spoke about the Court of Appeal decision in Queen v King
and said it was open to the Court of Appeal to impose the maximum sentence in relation to that prisoner. That is not the way the law is operating. I have to say that the member for Rockdale is not a first offender in relation to misrepresentation.
Mr Daryl Maguire:
He is a habitual offender.
Mr MALCOLM KERR:
He is a serial offender, as the member for Wagga Wagga said, and there is no character to take into consideration in mitigation of those series of offences. Let us look at the judgement of the Court of Appeal, in which it said:
However, notwithstanding the matters raised in the affidavit, and with real sympathy for the position of the respondent due to the manifestly inadequate sentence imposed upon him that neither he nor his legal representative encouraged or expected, a sentence of some severity must be imposed. The term of imprisonment that ought to have been passed upon the respondent by the Judge after a 25 per cent discount should have been in the vicinity of 9 years. As there were no special circumstances warranting a reduction in the minimum period of custody, the non-parole period should have been 6 years and 9 months. Such a sentence would have shown due regard to the standard non-parole period notwithstanding that it was a sentence imposed after a plea.
However, taking into account the disappointment of the respondent, a degree of extra-curial punishment and the fact that this is a Crown appeal—
this goes to the heart of the misrepresentation of the member for Rockdale—
the Court will impose a sentence of significantly less severity than should have been imposed by the Judge. The sentence will be backdated to the date of the respondent's arrest notwithstanding that he spent a short time at liberty as a result of the sentence imposed upon him. He will receive the benefit of a finding of special circumstances because this is a Crown appeal and in a last effort to help him to turn his life around.
A number of precedents relate to the sentences that are available to the Court of Appeal when it determines these Crown appeals. The Court of Appeal discussed those precedents in R v Wall
202 New South Wales Court of Criminal Appeal at page 41.
Mr Greg Smith:
It is 2002.
Mr MALCOLM KERR:
I am grateful for the assistance from the member for Epping, as will be the member for Rockdale and his speechwriter when they revisit this matter. I expect a degree of contrition when the member for Rockdale speaks. The judgement of the Court of Appeal states:
The Crown contends that not only was the sentence imposed inadequate on its face, but also that the sentencing judge made a number of errors of principle in determining that it was appropriate to proceed under s 19B of the Crimes Act 1914. Before considering these submissions it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence.
I pause to enable members to gather their thoughts, as important words will now spring from my lips reflecting the decision of the Court of Appeal. The judgement of the Court of Appeal continues:
(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King
(1936) 55 CLR—
there is no need for the member for Miranda to remind me of the page number as I believe it was at page 499—
applies to Crown appeals against sentence: Dinsdale v The Queen
(2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lonsdale v The Queen
(1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R. v Tait
(1979) 46 FLR 386 at 388; and Wong and Leung v The Queen
(2001) 76 ALJR 79 at para 58 and 109.
Mr Barry Collier:
You should be leading in debate for the Opposition!
Mr MALCOLM KERR:
The member for Miranda always becomes excited when I start quoting case law, but there is more to come. The judgement continues:
(b) Appeals by the Crown should generally be rare; Malvaso v The Queen
(1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified it would be exceptional for the Court to interfere: R v Baker
 NSWCCA 85.
(c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons
": per Barwick CJ in Griffiths v The Queen
(1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen
(1994) 181 CLR 295 at 299; Dinsdale v The Queen
(2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen
at para 109.
(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion—
Pursuant to sessional orders business interrupted and set down as an order of the day for a future day.