Motion: Judicial System | Sue Pennicuik

Motion: Judicial System

I rise to speak on motion 477 moved by Dr Carling-Jenkins. In the relatively short amount of time devoted to the debate on this motion so far, we have certainly taken a few twists and turns away from the words of the motion. I have to say — and I did mention this to Dr Carling-Jenkins — that looking at the motion in preparing for speaking to it today I struggled to get the gist of what it was.
Wednesday, November 29, 2017 - 9:15am
Sue Pennicuik

Ms PENNICUIK (Southern Metropolitan) — I rise to speak on motion 477 moved by Dr Carling-Jenkins. In the relatively short amount of time devoted to the debate on this motion so far, we have certainly taken a few twists and turns away from the words of the motion. I have to say — and I did mention this to Dr Carling-Jenkins — that looking at the motion in preparing for speaking to it today I struggled to get the gist of what it was. I did say that to Dr Carling-Jenkins, and we did have a discussion about it. As we did have that discussion about it, I got more of the idea, and when she spoke to the motion outlining her reasons for it, I did understand what she was getting at. But I struggled with that in the way the motion is actually presented.

As I say, it has taken a number of twists and turns, culminating in the tabling of the amendments by Mr O'Donohue just a little while ago. I understand those had not been flagged with Dr Carling-Jenkins earlier, which is a little unusual to say the least. What we do try to do in this place is give some notice of amendments. It is not always possible to provide a lot of notice, but certainly there should be some notice. So I will just talk to the amendments. I have read them, and Mr O'Donohue read them into Hansard. In terms of his amendment to paragraph (1)(c), I will not be supporting it because I do not agree with the words with regard to the under-resourcing of the police. The second one, which refers to a 'broken justice system in Victoria', I do not support either. I do not support the amendments, and I do not support the fact that they were tabled without any discussion with the mover of the motion. I think that we should be very wary of moving amendments to motions moved by people unless it is by some agreement with the person moving the motion.

I will be sticking to the words that are in the motion — again saying that I did struggle to see the connection between paragraphs (1) and (2). Paragraph (1) talks about an increase in certain offences. We have had a lot of motions about increases in crime and increases in certain offences over the last little while, so once again I looked at the statistics put out by the Crime Statistics Agency in order to find the statistics that Dr Carling-Jenkins was referring to. I did find them, and interestingly her words are taken verbatim from the Crime Statistics Agency (CSA); however, it is not the full story. You can find the words that are in this motion on the CSA website under 'Recorded offences', in section 1.2, for the most recent year. One of the first things you notice in the graph in section 1.1, entitled 'Key movements in the number and rate of offences', is that in fact between 2016 and 2017 there has been a decrease in the number of overall offences in Victoria — it is a decrease of around 500 offences. So that is the context to put it in.

In section 1.2 another graph divides certain types of offences up into six main offences — property and deception, public order and security, drug offences, justice procedure offences, crimes against the person and other offences. If you look at crimes against the person, going back to 2013, in fact crimes against the person in 2017 are less than they were in 2013. They made up 15 per cent of all crime in 2013. They make up slightly less now — about 14.9 per cent in 2017. It is under that particular graph that the words from Dr Carling-Jenkins's motion come. The report says:

In the last 12 months, the number of offences within the category of crimes against the person increased by 3.6 per cent …

that is, there are slightly more, a slightly higher percentage of crimes against the person in 2017 — even though it is less than in 2013 — compared to the previous year, 2016. It then says:

This was driven by an increase in the assault and related offences, sexual offences and dangerous and negligent act endangering people …

which are up by those percentages as outlined in Dr Carling-Jenkins's motion. I say that as it is always easy to pull out a couple of statistics from the pages and pages of related statistics that are actually on the website of the Crime Statistics Agency and say, 'That's what's happening', without putting it in the fuller context. As I have mentioned before, because the Crime Statistics Agency has over the past few years been recategorising some offences, really in order to make a very accurate statement about what has gone on with particular offences you would have to be tracking the categorisation of offences and the numbers of those offences over those few years. So as I say, it is easy to pick that out and plonk it in there, but it is really a sentence taken out of a few pages of quite complicated statistics.

The next part of the motion refers to the 11 October 2017 decision of the High Court. The motion says the court:

… ruled that sentencing for serious offences in Victoria has been too lenient …

I think that is a very broad statement with regard to a very narrow ruling of the High Court. The High Court decision of 11 October referred to was an appeal from the Court of Appeal of the Supreme Court of Victoria, and it was with regard to the inadequacy of sentences imposed on a Mr Dalgliesh, who was convicted of a number of offences of incest. This High Court decision referred only to that and did not refer to serious offences in Victoria. It referred only to this particular case, and the High Court made the ruling that the Court of Appeal in recognising as it had that the sentence was inadequate did say that it was within the general range of sentences — not wholly outside the permissible range — although extremely lenient. The High Court found that the Court of Appeal should have corrected that when it was looking at the appeal. That is what the High Court found. In fact the Court of Appeal has basically accepted that and has made that known to the sentencing courts in Victoria. It is a bit disingenuous to use this particular decision of the High Court as applying to all serious offences in Victoria, because it does not.

The court also held that current sentencing practices still must be taken into account but only as one factor, not the controlling factor, in the fixing of a just sentence. I know that in comments made after that Professor Arie Freiberg, who is the chair of the Sentencing Advisory Council, said that:

… the High Court had essentially found Victoria's appeal court had made an error by placing too much weight on 'current sentencing practices'.

He said that the ruling was that:

… if a sentence is wrong, the court should fix it …

and that this judgement —

won't change the range of factors courts are obliged to weigh up in sentencing offenders in Victoria.

Courts need to look at the maximum penalty, the offender's culpability, their prior history or offending record, aggravating and mitigating circumstances and the effects of crime on victims. These are in the sentencing guidelines in Victoria, and that is what our judicial officers use as their guide in sentencing in Victoria.

The next point that Dr Carling-Jenkins made was that Victoria Police command does not observe strict neutrality in all matters connected with politics, and I am not sure that I really heard any evidence of that and I am also not sure what Dr Carling-Jenkins means by politics as opposed to issues. In fact Mr Bourman said in his contribution that the police should be free from influences of social change, and I find that quite an extraordinary statement because the police are members of the community and cannot be free of influences from social change. They live in the community; they are part of the community.

I am not sure if Dr Carling-Jenkins actually said this in her contribution, but she certainly said to me something about police command talking about marriage equality. I do not see that there is any problem with that. That is not a party political statement; that is a statement about a social issue. In fact I have attended all of the Pride Marches in St Kilda since they began happening 21 years ago and for many years the police also have been participating in that event, so I am not really sure what that point is about and I do not agree with it.

The next point is that many Victorians have lost faith in the judicial system and Victoria Police command, and I do not know that there is any evidence for that either. There is a lot of assertion about it — that people have lost faith in the police — and I would say that I certainly support the police in their work. I understand their work is very difficult and challenging and can be dangerous. I also understand — and this is something I have raised not only here in the chamber but also in the Public Accounts and Estimates Committee — about the mental health effects on some police and the need for more action on post-traumatic stress disorder for police who have been involved in very difficult incidents.

I think there does need to be more attention paid to that, and I have raised that many times. I do not believe that overall the public has lost faith in the police or in Victoria Police command, and I do not believe that the public has lost faith in the judicial system either. Whether the public at large has lost faith in the judicial system is a different issue from whether certain individuals who have been involved in some very tragic or serious cases feel that they may have been let down; they are two different matters.

I would say also what I have said many times before: when exercises are carried out — and there have been a couple of them done through the courts with the help of universities — to bring members of the general public into the courts, present them with the evidence that was before the court and the sentence that was imposed by the judicial officer, the majority of those members of the public either agree with the sentence as put by the judicial officer or, in some cases, find the sentence to be too harsh and feel the judicial officer has been harsher than they would have been when faced with the same evidence and factors or circumstances involving a particular case. As I have said many times, it is all very well for people to read a headline in the Herald Sun and a couple of tiny paragraphs about a case and make a judgement about it when they do not actually know all the facts of the case; when they do know all the facts of the case they usually come to understand how a particular sentence has been handed down. As I have said, there is always the appeal process with regard to that.

I have to echo what Ms Shing said with regard to paragraph (2). I was thinking of approaching it very much the same way in that the statements there regarding the separation of powers and that there should not be undue politicisation are okay as they are read, but given the aforementioned four subparagraphs that I have just gone through, I cannot agree with the motion. With those comments, I would have to say the Greens will not be able to support the motion as put forward by Dr Carling-Jenkins.