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12 March 1991 - Current

Page 1275
3 April 2014
ASSEMBLY Statement of Compatibility CLARK
                           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.

  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