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12 March 1991 - Current

 
SENTENCING AMENDMENT (EMERGENCY WORKERS) BILL 2014
Page 2394
26 June 2014
ASSEMBLY Statement of Compatibility CLARK
               SENTENCING AMENDMENT (EMERGENCY WORKERS) 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  (Emergency  Workers)
  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 provides  for the introduction  of  statutory minimum  sentences  for
  offenders convicted of violent offences against emergency workers on duty, the
  introduction of a baseline sentence of  30  years  for  murder of an emergency
  worker, and  the  creation  of new  indictable  and summary  assault  offences
  against emergency workers on duty.
  The bill delivers on the government's commitment to introduce higher sentences
  for  offenders  who injure or  seriously injure emergency workers  on duty, as
  announced  on 12 April 2012. In addition, the changes  proposed  in  the  bill
  partially implement the recommendations of the parliamentary Drugs  and  Crime
  Prevention  Committee  inquiry into  violence  and  security  arrangements  in
  Victorian hospitals.

  The bill will permit the courts to impose a  sentence of imprisonment of up to
  two  years  and  a  community  correction  order (CCO) as the sentence for  an
  offence. The bill also allows courts to  combine a sentence of imprisonment of
  any  length with a CCO when sentencing an  offender  convicted  of  an  'arson
  offence'. The existing definition of that term in the Sentencing Act 1991 will
  be  adopted for  this purpose,  and will be augmented by  the addition  of two
  further serious arson offences.
  The provisions  of the bill that are  relevant to the human  rights set out in
  the charter act are as set out below.


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Human rights issues Protection from cruel, inhuman or degrading punishment and the right to a fair hearing Section 10 of the charter act relevantly provides that a person must not be punished in a cruel, inhuman or degrading way. Section 24(1) provides that a person charged with a criminal offence has the right to have the charge decided by an independent and impartial court after a fair trial. In my opinion, the bill does not limit these charter act rights. The proposed amendments introduce appropriate sentences to effectively protect, punish and deter violence against emergency workers performing their professional duties in circumstances where the offender knew or was reckless as to whether the victim was an emergency worker. Statutory minimum sentences for violence against emergency workers on duty The bill amends the Sentencing Act to introduce statutory minimum sentences for offenders who cause injury or serious injury to emergency workers in the course of performing their duties. Specifically, the bill requires a term of imprisonment to be imposed and the following minimum non-parole periods to be fixed by a court: five years for the offences of intentionally or recklessly causing serious injury in circumstances of gross violence; three years for the offence of intentionally causing serious injury; two years for the offence of recklessly causing serious injury. The bill also introduces a six-month sentence of imprisonment for the offences of intentionally or recklessly causing injury. These amendments are clearly confined by law to apply to offenders convicted of the violent offences specified in the bill and only in respect of a clearly defined class of victims, namely, emergency workers on duty where the prosecution proves that the offender knew or was reckless as to whether the victim was an emergency worker. Protection from cruel, inhuman or degrading punishment (section 10) In my opinion, the statutory minimum sentences introduced by the bill do not limit the protection from cruel, inhuman or degrading punishment, as they do not compel the imposition of a grossly disproportionate sentence. The bill does not compel -- and indeed, contains safeguards that protect against -- the imposition of a sentence of imprisonment that is inappropriate, unjust or disproportionate. The safeguards include the availability of full sentencing discretion where a court is satisfied of the existence of a special reason in relation to an offender or the particular circumstances of a case as set out in section 10A of the Sentencing Act. The special reasons are: the offender assisted or has undertaken to assist in the investigation or prosecution of an offence; the offender was aged over 18 but under 21 years of age at the time of the commission of the offence and can prove that due to psychosocial immaturity was unable to regulate his or her behaviour; the offender can prove he or she has impaired mental functioning; the court makes a hospital security or residential treatment order; or there are substantial and compelling reasons that justify a departure from the statutory minimum sentence, having regard to Parliament's intention that the relevant minimum sentence should apply and whether the cumulative impact of the circumstances justify a lesser sentence. For offences against section 18 of the Crimes Act, the bill broadens the special reasons to encompass young offenders who would otherwise be eligible for a youth justice centre order. The bill adopts the existing criteria in section 32 of the Sentencing Act, which permits a court to sentence an offender aged between 18 and up to 21 (a 'young offender') to detention in a youth justice centre rather than imprisonment in certain cases. This can occur if a court believes: that there are reasonable prospects for the rehabilitation of the young offender; or the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison. Under the bill, these criteria will operate in the same way as the special reasons, that is, as an exemption from the statutory sentence, for young offenders found guilty of causing injury to an emergency worker on duty. If either of the criteria is met, the court does not have to impose the statutory sentence of six months imprisonment, and may instead impose any sentence within its discretion. For the more serious offences of intentionally or recklessly causing serious injury to an emergency worker on duty, the court may allow the offender to serve their statutory sentence in youth detention if the court believes the offender has reasonable prospects of rehabilitation or is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison. This does not limit the availability of the existing special reasons provisions, which if met, permit the court to impose any available sentence. These provisions recognise particular issues relevant to the detention of young offenders, apply the threshold criteria currently available in section 32 of the Sentencing Act, and are consistent with the general sentencing principles dealing with youth. In addition, these provisions do not prevent the administrative transfer of prisoners from youth justice to prison or vice versa. Existing safeguards in the Sentencing Act will also apply to the new provisions including that statutory minimum sentences do not apply to offenders who aid, abet or procure the commission of the offence or to offenders who are under 18 years of age at the time of the commission of the offence. In my opinion, these amendments do not limit the right set out in section 10.
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Right to a fair trial (section 24) Section 24 of the charter act 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. While the bill prescribes the minimum sentence for the offences of intentionally or recklessly causing serious injury in a circumstance of gross violence, the court has discretion to impose any sentence within the parameters of the minimum and maximum sentences. Furthermore, as outlined above, the bill's special reasons provisions allow the courts to take account of factors that reduce an offender's culpability to such a degree that the offender should not be subject to the statutory minimum sentence. I also note that the High Court has consistently held that provisions imposing mandatory minimum sentences, which this bill does not do given the special reasons provisions, do not constitute a usurpation of judicial power and, as such, are not constitutionally objectionable. The bill applies statutory minimum sentences to several offences for the first time. It also applies the special reasons in section 10A for not applying statutory minimums to these offences. Section 10A of the Sentencing Act, which outlines an exhaustive list of special reasons for which a judge may depart from the statutory minimum sentence, imposes a legal burden of proof in respect of the special reasons which apply to offenders with impaired mental functioning, and offenders who are aged between 18 and 20 years of age and who possess a diminished ability to regulate their conduct in comparison with the norm for persons their age. In my opinion, these provisions do not limit the right to a fair trial under section 24 of the charter act. The matters to be proved by an offender who seeks to rely on either special reasons provision are matters which the offender is in the best position to prove. Conversely, it would be difficult and onerous for the Crown to investigate and disprove these matters beyond reasonable doubt. Furthermore, the legal burden imposed by each provision is comparable to the burden of proof which offenders must meet when seeking to prove mitigating circumstances and, from a practical perspective, they relate to matters which would be raised during the normal course of sentencing submissions for offences under the Crimes Act 1958. For these reasons, I consider that the bill does not limit section 24 of the charter act. Baseline sentence for murder of emergency workers on duty The bill amends the Crimes Act 1958 to provide for the introduction of a 30-year baseline sentence for the murder of an emergency worker on duty. This bill builds on the proposed baseline sentencing provisions in the Sentencing Amendment (Baseline Sentences) Bill 2014 by introducing a 30 year baseline sentence for murder of an emergency worker on duty. This means that, when dealing with one or multiple baseline offences, a sentencing court must sentence consistently with the proposition that the baseline sentence for an offence is the sentence that Parliament intends to be the median sentence for sentences imposed for the relevant offence. The baseline sentence operates as an additional factor in the sentencing process. In each case, a sentencing court is compelled to provide reasons for why it has imposed a sentence equal to, greater or lesser than the baseline sentence. Further, a sentence imposed by a court in respect of a baseline offence must have a non-parole period fixed in compliance with the minimum ratios proposed in the Sentencing Amendment (Baseline Sentences) Bill 2014. 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 does not otherwise affect judicial discretion. The bill does not introduce mandatory sentences for murder of an emergency worker and the baseline sentencing provisions do not alter the existing instinctive synthesis process for sentencing. The baseline sentencing scheme contains a number of safeguards to protect the rights provided for in sections 21 and 24. For example, it does not limit the process for appeals against sentence. Also, it 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. Prohibition on retrospective criminal penalties (section 27) Section 27(2) of the charter act provides that a penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed. In my opinion, the bill does not limit this right because the amendments do not change the penalty applicable to an offence. Reforms to CCOs The bill extends the existing three-month limit on a sentence of imprisonment that may be imposed in addition to a CCO in section 44 of the Sentencing Act to two years. This means that a court may impose a two-year jail sentence and then a CCO of up to the maximum length that court is permitted to impose for a single offence or offences founded on the same facts. The amendments will apply immediately upon commencement and can be used by courts when sentencing an offender found guilty of an offence committed prior to the commencement date. The bill does not limit the right in section 27(2) because it does not increase the maximum penalty that applied to the offence when it was committed. Instead it creates flexibility to combine a CCO with a term of imprisonment between three months and two years. A CCO can only be imposed with the consent of the offender. The amendments facilitate the use of CCOs and provide greater flexibility to the courts to impose an appropriate combination sentence of CCO and imprisonment.
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Sentencing for 'arson offences' In addition, the bill provides sentencing courts with the power to combine a term of imprisonment of any duration with a CCO when sentencing an offender for an 'arson offence'. This power is of course subject to the maximum term of imprisonment applicable to the relevant arson offence. This amendment will use the existing definition of 'arson offence' in clause 5 of schedule 1 of the Sentencing Act. That definition is relevant to part 2A of that act, which deals with sentencing for 'serious arson offenders'. The bill will also add to that definition by inserting two additional serious arson offences, namely: placing inflammable material for the purpose of causing fire contrary to section 66 of the Forests Act 1958; and causing fire in a country area with intent to cause damage in section 39C of the Country Fire Authority Act 1958. The amended definition will apply to persons who are sentenced for either of the above offences after the commencement of these amendments, regardless of when the offence was committed or the finding of guilt made. The consequence is that the offender will be sentenced as a 'serious arson offender' in respect of that offence if they have previously been convicted of an arson offence and were sentenced to a term of imprisonment or detention in a youth justice centre. Persons deemed 'serious arson offenders' are subject to special rules on sentencing that may expose them to a heavier sentence. Accordingly, these amendments may be argued to contain an element of retrospectivity that is relevant to section 27(2) of the charter act. In my opinion, this amendment does not limit section 27(2). The penalty to which section 27(2) refers is the maximum penalty prescribed for the offence (see, for example, DPP v. Leys [2012] VSCA 304, [130]). While the application of sections 6D and 6E of the Sentencing Act may result in a heavier sentence being imposed, depending upon how the sentencing discretion is exercised, nothing in part 2A alters the maximum penalty. Therefore, in my opinion, these amendments do not limit section 27(2) of the charter act. Robert Clark, MP Attorney-General