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SENTENCING AMENDMENT (BASELINE SENTENCES) BILL 2014
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3 April 2014
Statement of Compatibility
CLARK
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SENTENCING AMENDMENT (BASELINE SENTENCES) BILL 2014 Statement of compatibility Mr CLARK (Attorney-General) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006: In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the 'charter act'), I make this statement of compatibility with respect to the Sentencing Amendment (Baseline Sentences) Bill 2014 (the bill). In my opinion, the bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the charter act. I base my opinion on the reasons outlined in this statement. Overview The bill introduces baseline sentences for the offences of murder, sexual penetration of a child under 12, persistent sexual abuse of a child under 16, incest with a child and culpable driving causing death in the Crimes Act 1958. It also introduces a baseline sentence for the offence of trafficking in a large commercial quantity of a drug or drugs of dependence in the Drugs, Poisons and Controlled Substances Act 1981. The bill amends the Sentencing Act 1991 to provide that the baseline sentence for an offence is the sentence that Parliament intends to be the median sentence for sentences imposed for that offence under the baseline sentencing provisions. This means that Parliament intends that sentencing practices will adjust so that, over time, half of the sentences imposed for the offence will be less than the baseline sentence and half will be greater. When sentencing an offender for a baseline offence, regardless of whether the court is imposing a custodial sentence, the court must act compatibly with Parliament's intention. If the court is sentencing an offender who has committed multiple offences including one or more baseline offences, it must still consider the baseline sentence for each of the baseline offences. The bill requires the courts to consider the baseline sentence, in addition to all other sentencing considerations, when sentencing an offender found guilty of a baseline offence. A court will be required to provide reasons as to why it has imposed a sentence equal to, greater or lesser than the baseline sentence, as the case requires. If a court is imposing a sentence of imprisonment in respect of a baseline offence or a case that involves a baseline offence, it must fix the non-parole period in compliance with the new minimum ratios introduced by the bill. Human rights issues Section 21 of the charter act relevantly provides that a person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law. Section 24 relevantly provides that a person charged with an offence has the right to have the charge decided by an independent and impartial court after a fair hearing. These rights are not limited. Any deprivation of liberty will arise, as it does now, from a sentence imposed after conviction for an offence by an independent court after a fair hearing. The bill introduces an additional statutory consideration (the baseline sentence) into the sentencing process. The bill also introduces minimum ratios for the non-parole period to the individual sentence for baseline offence or to the total effective sentence for offences which include a baseline offence -- these ratios are consistent with the ratios under current sentencing practices. The bill does not introduce mandatory sentences and the bill does not alter the existing instinctive synthesis process for sentencing. The bill contains a number of safeguards to protect the rights provided for in sections 21 and 24. For example, the bill does not limit the process for appeals against sentence. Also, the bill requires the provision of reasons for the sentence being greater or lesser than or equal to the baseline which promotes transparency and consistency in sentencing. Robert Clark, MP Attorney-General