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SENTENCING AMENDMENT (EMERGENCY WORKERS) BILL 2014
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26 June 2014
Statement of Compatibility
CLARK
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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.
Page 2395
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.
Page 2396
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.
Page 2397
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