Pre-Trial Diversion Of Offenders (Amendment) Bill
PRE-TRIAL DIVERSION OF OFFENDERS (AMENDMENT) BILL
Debate resumed from 24th November.
The Hon. J. P. HANNAFORD (Attorney General, Minister for Industrial Relations, and Vice-President of the Executive Council) [5.52], in reply: The shadow minister for community services, the Hon. R. D. Dyer, though indicating general support for the proposed amendments to the Pre-Trial Diversion of Offenders Act, has questioned the appropriateness of the amendment with regard to the recording of a conviction against an offender who pleads guilty to sexually assaulting a child within the family. He has made it quite clear that his objection should not be seen in any way as condoning this type of horrendous offence but, rather, that his concern relates to the fact that by requiring a conviction to be recorded against an offender, offenders may be less inclined to plead guilty and more inclined to take their chances in the criminal justice system and opt to go to trial. This would mean that the child victim would be obliged to undergo the trauma of having to give evidence in court, often against its own parent, and generally be further victimised by the experience of the court process.
I appreciate that the concern of the Hon. R. D. Dyer is that this amendment, in seeking to punish the offender in this way, may effectively disadvantage the child victim. Certainly the honourable member is correct when he indicates that at the time the legislation was passed in 1985, the non-recording of a conviction was seen as a necessary trade-off for the offender if he were to be encouraged to plead guilty and thus spare the child from the obligation to go to court. The report of the New South Wales sexual assault task force which reported to the then Premier in March 1985 clearly recommended a pre-trial diversionary program which avoided the recording a conviction. The arguments for the avoidance of a conviction were, first, that it would be an incentive to the offender to plead guilty and thus spare the child victim the trauma associated with a criminal trial and, second, it would be a means by which offenders were encouraged to stay within the program for, if they defaulted, they were returned to the criminal justice system for sentencing. However, it must be kept in mind that at the time of
recommending this innovative program the task force was uncertain exactly how offenders would respond to this alternative to prosecution and the main concern, understandably, was to encourage offenders to divert to the program so as to benefit the child victim.
However, since the legislation was passed in 1985, experience with the treatment program, together with changes over this period in community awareness of child sexual assault, mandatory notification of abuse, and changes to the criminal justice system which goes some way towards assisting the child victim to give evidence in court, has called into question the need to provide such an incentive or trade-off to the offender. The Hon. R. D. Dyer has asked to what extent will men who will otherwise be willing to admit misconduct be discouraged from participating in the program if they are required to plead guilty and to have a conviction recorded against them. In reply to this question I can be guided only by the experience of those working in the area over the past three years who are of the view that there is no longer a need to provide the extra incentive of avoiding a conviction to encourage offenders to plead guilty. When I first received briefings on this legislation I asked exactly the same questions as the honourable member has asked and the advice I am now giving is the advice I was given, to which I acceded at the time.
Most offenders are concerned primarily to avoid public disclosure, the trial process and possible imprisonment. The non-recording of a conviction, though no doubt an advantage, does not appear to be the determining factor when an offender decides to plead guilty. With all due respect, the suggestion that the recording of a conviction will act as a disincentive to a defendant to plead guilty to an offence and to seek to be dealt with under the pre-trial diversion program is purely speculative. I am not convinced that the mere fact of an offender having a conviction recorded would be sufficient for that person to risk a trial and custodial sentence. It seems to me that that argument oversimplifies the nature and circumstances of the offender who is targeted for the program, notably that intrafamilial offences are involved. In addition the idea that the treatment program keeps the offender committed to the program would appear to be incorrect. The recording of a guilty plea sits well with the philosophy of the treatment program which is based on the offender accepting responsibility for his actions. If the only reason he is on the program is to avoid a conviction, it is counter-productive to treatment.
The treatment program is based on an approach developed by a psychologist, Alan Jenkins, who concurs with the frequently expressed view that abuse in its various forms is only one manifestation of the difference in power possessed by abuse perpetrators and their victims. His work is based on the assumption that abusive behaviour is most likely to cease if the perpetrator accepts full responsibility for his actions. The Hon. R. D. Dyer has also acknowledged that practical problems may arise from the non-recording of a conviction and that it may be possible for an offender to gain employment in areas that provide access to young children. However, he has asked whether, if an offender is diverted into the treatment program under this legislation, a record is maintained by the police, in what form is it maintained, and could it not be used to prevent such an occurrence? I must admit that I also asked the same questions.
I can advise that currently the police, as required under section 31 of the Act, keep a record of a person who pleads guilty to a child sexual assault offence and gives an undertaking under this Act. However, the record of the undertaking is kept on the police record system and, as no conviction is recorded, it is currently not accessible by means of an ordinary record check. Only convictions are displayed when undertaking
a record check for employment purposes. The offender's full criminal history would reveal the undertaking but that is not available through standard record check procedures. So, for example, if the Department of Community Services were to request a criminal record check on such an offender, the undertaking would not be shown on the police system. Though there could be other means developed for the monitoring of offenders for employment purposes, other than by the recording of a conviction, this merely acknowledges the validity of the need to take account of an offender dealt with in the program. In this I find the argument of the Opposition somewhat contradictory because the practical effect would be the same, but such alternatives offer a more complicated, less known, way of achieving those aims.
It must be asked why is it that people would not want criminal convictions recorded against their names. In part, it must be that they do not wish account to be taken of it for future sentencing or employment check purposes. Yet the Opposition agrees that it is appropriate that a record of an offender having pleaded guilty and been committed to the pre-trial diversion program be available for these purposes. It must be kept in mind that this is a small experimental program and that we need to monitor its implementation over time to see if we are getting it right. What was considered appropriate in 1985 is now considered unnecessary in light of experience with the program. I can assure the Opposition that the best interests of the child have been taken into consideration in these proposed amendments and that the proposal to record a conviction has been carefully weighed in terms of the primary aim of the Act. In the end it has been agreed that the best interests of society will be served if a conviction is recorded. I indicate also to the honourable member that what prevailed strongly upon me was my latter comment: because this is intended to be an intrafamilial diversion program, the best way of securing what might be described as family reform is if the perpetrator is prepared to acknowledge openly the offence and is willing to accept the consequences of that offence. The consequences that would logically follow from an offence are the acknowledgment of guilt and, therefore, the recording of a conviction. Normally some form of sentence would be imposed, but as we are avoiding the sentence with the program, it would be seen -
The Hon. Ann Symonds: Only if the program is available.
The Hon. J. P. HANNAFORD: If the program is available, and I acknowledge that that is an issue. What convinced me is that if part of the recognition is that these offenders obviously have a psychological diversionary need, that has to be addressed. If we are able to emphasise addressing the problem by getting the offender to acknowledge the offence, acknowledge guilt, and be prepared to accept through the recording of the offence that it occurred, part of that acknowledgment - according to the information given to me - will be a major step towards achieving the intrafamilial correction, if it is able to be achieved.
The Hon. Ann Symonds: If offenders are suitable for the program but there are no places in it, how will the Minister resolve that problem?
The Hon. J. P. HANNAFORD: The honourable member will recall from my second reading speech that the prosecutor has to be prepared to accept the plea of guilty and be prepared to accept that the offender should go into the program. The obligation on the prosecutor is to ascertain whether places are available. He should not accept offenders into this program if they cannot be appropriately placed.
The Hon. Ann Symonds: For assessment?
The Hon. J. P. HANNAFORD: Yes, for assessment. Determination of placement is made at the time that the question of the application for diversion and a plea of guilty is being addressed. I commend the bill.
Motion agreed to.
Bill read a second time.
The Hon. J. P. HANNAFORD (Attorney General and Minister for Industrial Relations, and Vice-President of the Executive Council) [6.2]: I move:
That this bill be now read a third time.
The Hon. R. D. DYER [6.2]: I take the somewhat unusual course of speaking on the third reading to express my acknowledgment of and thanks to the Minister and the Government for the detailed response given to the concerns I raised during the second reading debate. I also acknowledge and thank the Minister for the briefing from the Minister's officer regarding concerns I raised during that debate. It will be recalled that those concerns related to the possibility, in my mind, that consequent upon the change requiring a person to plead guilty and receive a conviction, there might be some disincentives so far as participation in the pre-trial diversion program was concerned. Having regard to the explanations given during the briefing and, more recently, when the Minister spoke in reply to the debate I believe that on balance the change is justified. In particular, I am persuaded by the Minister's reference to fact that we are discussing an intrafamilial situation and that a plea of guilty and a conviction might, in some sense, facilitate a proper approach to the treatment program.
However, I also wish to say briefly that the Opposition wishes to focus attention on the question of resources regarding the pre-trial diversion program. My understanding is that the program commenced effectively in May 1989, the principal Act having been enacted in 1985. There was some delay but that, I understand, related not so much to a lack of funding or resources but rather to a delay in developing the treatment program. The treatment program, which I understand is of high quality, operates at Westmead Hospital. I am advised that up to October this year 64 persons had been assessed for possible inclusion in the program; 23 were deemed suitable for inclusion in the program; 41 were deemed unsuitable and have not been included in the program; and, a total of six persons were breached - that is, they were sent back to court for non-compliance with conditions attributable to the program. I wish to place quite firmly on the record that although the Opposition recognises that this is a relatively small program, it believes that it is in the interests of the offenders, their families and society that adequate resources be devoted to the program so that this legislation will not be a dead letter but, rather, will provide a genuine alternative to merely convicting a person and giving that person a custodial sentence. In the Opposition's view it is important that the pre-trial diversion program be a genuinely viable alternative, and that adequate resources be available so that men - and usually they are men - can receive the benefit of this program. With those few words I again thank the Minister for his detailed response to the Opposition's concerns expressed during the second reading stage of this bill.
Motion agreed to.
Bill read a third time.