2018-09-18
Ms PENNICUIK (Southern Metropolitan) — The Justice Legislation Miscellaneous Amendment Bill 2018, which we are debating this afternoon, is an omnibus bill. As has been pointed out it covers a range of areas including amendments to the Estate Agents Act 1980 to ensure that vendors pay commissions owed to estate agents under sales authorities, technical amendments to the Domestic Building Contracts Act 1995 and others to the Estate Agents Act, the Retirement Villages Act 1986 and the Rooming House Operators Act 2016. It also makes some amendments to the Coroners Act 2008 to implement key recommendations of the Coronial Council of Victoria's appeals reference report and a number of technical amendments to the Criminal Procedure Act 2009 and the Honorary Justices Act 2014, amongst others.
It is fair to say most of those are technical amendments. I certainly do support the amendments to the Coroner's Act. I have taken a long interest in what goes on in the Coroners Court, and I did move some amendments to the Coroner's Act in 2008, such as to require agencies that are subject to coroners' recommendations to report on their response to those recommendations within three months. Anybody who cares to have a look at how that has worked out over the last 10 years will see that it is quite useful to see what agencies' responses to those are. Prior to that it was very opaque as to what would happen with regard to coroners' recommendations to agencies such as WorkSafe, the Medical Practitioners Board of Victoria or others, for example.
It is fair to say that the most far-reaching amendments in this Justice Legislation Miscellaneous Amendment Bill are to the Sentencing Act 1991. In particular the bill proposes mandatory minimum sentences for serious injury offences committed against emergency workers, custodial workers and youth justice custodial workers who are on duty, whether or not the serious injury is recklessly or intentionally caused. The Greens, with everybody in this chamber and everybody in the community, are deeply concerned by attacks on or abuse of any of our emergency workers and the injuries they cause, including ambulance workers, hospital workers and custodial workers. We agree strongly that no-one should have to work in an environment where they are at risk of being injured. Every person deserves to be safe at work, whatever their workplace.
The question before us though is whether the provisions in this bill will make emergency workers safer. I would say the government needs to look at more practical measures on a day-to-day basis to improve the safety of emergency service workers as they go about their important work for the community. Mandatory sentencing is not the way. The evidence is very strong that mandatory sentencing does not act as a deterrent and does not make the community safer. It is other measures that will do that. Mandatory sentencing, as I have mentioned many times before in this Parliament, results in unjust outcomes and simply exacerbates social disadvantage and injustice. It disproportionately incarcerates vulnerable groups whose offending may relate to entrenched disadvantage, intergenerational trauma, inequality, mental health status, drug and alcohol dependency, psychosocial immaturity et cetera. The Greens have a longstanding opposition to mandatory sentencing, and we do not support it for any offence.
We are also concerned about the creation of certain classes of victims, which I have also mentioned before. Emergency services workers are a particular class of victim or person against whom an offence has been committed, as opposed to other members of the public, for example. An offence which causes an injury and/or death to this class of person is regarded more seriously, and a minimal mandatory sentence applies when that would not apply to another member of the public. There are two things to consider: there is the classification of certain occupations as attracting a mandatory minimum sentence just because a person served in that occupation; and an offence against such a person is seen to be a more serious offence than, for example, a similar offence against a person's partner or a similar offence carried out against a child or an offence carried out against someone walking home at night on their own. They are all serious offences, and it is our view that none of them should attract minimum mandatory sentences.
It is the Greens' longstanding view that it should be up to the discretion of the courts to impose the appropriate sentence in every circumstance. Every single case that comes before the court, be it the Magistrates Court, the County Court or the Supreme Court, is a different case. It involves different offenders, different circumstances and different people who have had offences perpetrated against them. The Sentencing Act, notwithstanding all the amendments that have been made to it over the last few years to make it more complicated and less flexible for the judiciary to apply the most appropriate sentence in every circumstance, still outlines in its guidelines what the court should take into account when sentencing. The courts have the expertise and experience to be able to take into account aggravating and mitigating circumstances in every case that comes before them. Mandatory minimum sentencing takes away that discretion.
I note in the statement of compatibility the word 'proportionate'. The Attorney-General has said these sentences are proportionate. It is impossible for an arbitrary minimum sentence to be declared proportionate when it is applied across the board in an arbitrary way to every single case. That is not proportionate. What is proportionate is taking into account all the circumstances of a case and applying the proportionate sentence with regard to the offence.
I go back to the provisions in this bill, which make no distinction between someone recklessly causing an injury and someone intentionally causing an injury. I think those two adverbs are very important. There is a big difference between 'reckless' and 'intentional', and yet this bill brings them together as if they are the same thing.
The statement of compatibility also mentions equality before the law — and I note Mr Melhem used that term as well — but there is no equality before the law if according to the person who was the subject of an offence you are immediately, as the offender, faced with a mandatory minimum sentence based on that as opposed to any other offender who may come before the court having committed a very similar offence but not against the categories of worker outlined in the Sentencing Act 1991, as already exist and with a few more added by the bill.
The Greens are not the only people who have raised concerns about this bill. In fact a submission was sent around — I am presuming to all members of Parliament — back in June. In it a very large coalition of people raised concerns about the bill, including the Fitzroy Legal Service, Darebin Community Legal Centre, St Kilda Legal Service, Peninsula Community Legal Centre, Law & Advocacy Centre for Women, Moonee Valley Legal Service, Villamanta Disability Rights Legal Service, Federation of Community Legal Centres, Eastern Community Legal Centre, Women's Legal Service Victoria, Criminal Bar Association of Victoria, Flat Out, Victorian Alcohol and Drug Association, Aboriginal Catholic Ministry Victoria, Victorian Aboriginal Legal Service, Democracy in Colour, the Mental Health Legal Centre, Goulburn Valley Community Legal Centre, Liberty Victoria's Rights Advocacy Project, Liberty Victoria, Yarra Drug and Health Forum and the Law Institute of Victoria.
Foremost amongst their concerns was a lack of consultation regarding the bill beyond the emergency services unions. These particular groups, which are at the front line in dealing with these issues, were not consulted about the bill and have raised many concerns. As I mentioned, partly they raised concerns about the lack of proportionality in the laws in that all injury offences to emergency workers are to be classified in the same category as serious offences — category 1 offences — whether or not the injury or behaviour was serious, and there will no longer be some special reasons applying to that, which I will refer to a little later on in my contribution.
They raised concerns particularly with regard to the disproportionate effect that the bill will have on vulnerable persons, such as those with mental health conditions, young persons and those with substance abuse problems, bearing in mind that police and ambulance paramedics are often called to incidents involving persons with mental health and/or drug-related issues. The practical implication of this is that the very persons who are going to be excluded by way of the provisions limiting the special reasons under section 10A of the Sentencing Act 1991 are the very people who the emergency services workers will most often come into contact with.
Their concerns also included the increased risk of disproportionate incarceration of Aboriginal and Torres Strait Islander people, who are already 12 times more likely to be in prison than non-Aboriginal people. Aboriginal people also suffer more ill health and more mental illness than non-Aboriginal people and are thus more likely to be in contact with the workers in a distressed or a disturbed emotional state. They are also already over-policed, so mandatory sentencing will only exacerbate this problem.
We met with these groups back in July, when we went through the bill and listened to their concerns. They also raised the potential increased risk of front line workers, families and victims of family violence not calling 000 because of their fears regarding the potential subsequent prosecution and incarceration of a patient, relative or partner.
What was certainly said to us in our meeting was that the government has done a great deal with regard to family violence, but in fact the provisions in this bill are contrary to what the government has done in that area. These groups are concerned about the particular effects of the provisions of this bill on women, both as workers and in support roles, and the effect of the law in family violence situations, and that those involved in family violence situations will no longer call emergency services because they would be concerned about what would happen to people who may accidentally recklessly injure an emergency services worker and so bring into place these provisions. In fact they said that they had already had reports of people not calling 000. This is a very serious issue with regard to the contrary nature of the provisions of this bill in relation to other recommendations of the Royal Commission into Family Violence. As such, I have prepared an amendment, which I am happy to have circulated.
Greens amendment circulated by Ms PENNICUIK (Southern Metropolitan) pursuant to standing orders.
Ms PENNICUIK — The amendment that I have circulated and that I will move in committee is an amendment to clause 79 of the bill. It would insert a new paragraph (f) into section 10A(1) of the Sentencing Act 1991. Under the provisions in this bill, there is a removal of special reasons that exist under section 10A(1) of the Sentencing Act that would allow a court not to impose mandatory minimum sentences. They include psychosocial immaturity for young people, impaired mental functioning caused by alcohol or drugs and consideration of reasonable prospects for rehabilitation of those aged 18 to 21. We are very concerned about the removal of those special reasons, as are all the groups that I mentioned before that made a submission on the provisions of this bill.
Notwithstanding that, we would like to add a new special reason, and it goes to what I was talking about — the disproportionate effect that the provisions in this bill will have on those experiencing family violence. Proposed new paragraph (f) says:
… a state caused by serious trauma, including sexual, physical and psychological abuse and family violence within the meaning of the Family Violence Protection Act 2008;”.'.
That would also be a special reason that the court could take into account so as to not impose a minimum mandatory sentence under the provisions for emergency service workers or injury of emergency service workers.
There are so many problems already with what is in the law with regard to mandatory minimum sentences. There is a lack of evidence, as I said, that they prevent crime, make communities safer or act as a deterrent. It interferes with the independence of the judiciary and the ability of the courts to take into account all of the circumstances of every case before them, and it creates a hierarchy of victims.
The Greens say that mandatory sentencing is contrary to the principles of natural justice, judicial discretion and the independence upon which our court system is based. I particularly draw attention to clause 76(8), which says:
In determining whether there are substantial and compelling circumstances —
which is a change from 'exceptional circumstances' —
under subsection (2H)(e), the court—
(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1) —
which is the sentencing guidelines —
and
(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c) must not have regard to—
(i) the offender's previous good character (other than an absence of previous convictions or findings of guilt); or
(ii) an early guilty plea; or
(iii) prospects of rehabilitation; or
(iv) parity with other sentences.
This is almost the worst part of the bill. It takes away the ability of the courts to take these things into account when sentencing and when looking at the circumstances of a case. Every case is different and will involve a complex set of circumstances, and we should leave in place all options for the court. We have already lost suspended sentences, which were not widely used but were appropriate in many cases. It was the most appropriate sentence to be given to a person in particular cases.
We have already lost home detention, which has not been put back in by this government. Home detention was most often used at the end of a sentence to allow a person to go home and be detained. I remember at the time saying that home detention had allowed the offenders — the prisoners — and their families a sort of halfway stage to adjust between being incarcerated and being released. We have lost those options. We have now got mandatory minimum sentences in the Sentencing Act for a range of particular offences and particular classes of victims. We have now got special reasons being taken away, which will actually really impact on the most vulnerable people in the community.
This is not going to make any difference to whether emergency services workers are injured or not. I do not want to see any emergency services workers injured. It is the more practical measures that can be taken on a day-to-day basis with regard to how ambulance officers work, how custodial officers work, how police work et cetera that need to be taken into account. I take up Mr Melhem's point about the stress that is experienced by these workers — ambulance workers and the police, for example — and I welcome the announcement by the government that there will be more assistance for the mental health of emergency services workers, particularly those suffering post-traumatic stress disorder. It is an issue that I have actually raised in this Parliament many times — the need for more attention to be paid to emergency workers and police for the mental health issues that they may suffer as a result of their work. I read the Cotton report as to what was involved with that, and it has taken a long time to get more attention paid to those issues.
There are many concerns with this legislation that is not going to make emergency workers safer. Sadly this bill will not do that, but it will impact on vulnerable people in the community. I took the time — a couple of times, actually — to read the reasons by Her Honour Judge Cotterell for the sentence she gave in May 2018 to the two women who had assaulted the emergency services worker Mr Judd. I send my feelings to Mr Judd. I feel for him and the injuries that he received. The reasons for the sentence are laid out by Judge Cotterell, and I would suggest people read through them. This was of course two years after the event. The reasons outline the circumstances of those particular women, the measures that they had taken to bring their lives back on track in the two years since the event had taken place and, thereby, the reasons that the judge had for changing the sentences and imposing the corrections orders. Basically she was saying that it would not have been a just outcome for those women to have been incarcerated and that it was a more just outcome and more in line with keeping the community safe and the rehabilitation of those two women, so that they would not reoffend, to impose the corrections orders, as the judge did.
She did also at the end of her reasons reach out to Mr Judd, saying that she understood his suffering and that he was perhaps not feeling that justice had been done. I think this case bears out the difficult job in front of judicial officers every single day of the week to balance all of the considerations they need to balance in coming to sentencing outcomes.
Often we see particular cases being covered in the media, but we must keep in perspective that there are an awful lot of cases that go through the courts that never get any media attention, many of them just as difficult and complicated as this one and just as traumatic for the person who suffered an injury. I know Mr Judd suffered a significant injury, and I feel for him in that regard — and for any other emergency worker who does. But this bill will not fix that situation; it makes the situation worse in the broader context for community safety, rehabilitation of offenders and just outcomes in every case.
So the Greens have great concerns with this bill. I will move one amendment to address what has been raised by those who work in the family violence sector about their very, very deep concerns about how this bill will impact those experiencing family violence. In fact the biggest deterrent this bill will have will be for people experiencing family violence to call emergency services, and I am sure that was not the outcome that the government was looking for, but it is certainly the one that all of those community groups and legal groups involved with working with family violence have raised very strongly, I know, with the government and with everyone else. For those reasons the Greens will not be able to support this bill.