2016-10-12
Ms PENNICUIK (Southern Metropolitan) — The Crimes Amendment (Carjacking and Home Invasion) Bill 2016 will do three main things: it will amend the Crimes Act 1958 to create new offences of carjacking and home invasion and consequentially amend schedule 2 to the Criminal Procedure Act 2009; it will amend the Sentencing Act 1991 to provide that minimum terms of imprisonment will apply to the offences of aggravated carjacking and aggravated home invasion; and it will also amend the Bail Act 1977 to include aggravated carjacking, home invasion and aggravated home invasion as show cause offences under that act, meaning that the offender would have to show cause as to why they should be granted bail.
Like everybody in this chamber, in the Parliament and in the community, we understand the seriousness of the offences that are being described by the terms 'home invasion' and 'carjacking' and that breaking into someone's home, particularly when people are home, and terrorising them, as we have seen in some reports recently in the media, is extremely serious. Also in terms of people driving, there have been instances where people have been bumped from behind, have got out of their car and have been assaulted, or where a person has broken into someone's car when they have been stopped at lights or stopped in the street and have either taken their car without them in it or have taken their car with them in it. Of course these are terrorising offences — they are very serious offences — but the Greens would pose that these actions are already illegal under the Crimes Act and there are already offences under the Crimes Act that deal with these serious offences. They already attract very serious penalties under the Crimes Act and under the Sentencing Act.
We have concerns that this bill, as with the previous bill introduced by Mr O'Donohue, is in fact adding new offences to the Crimes Act and to our statute books that already exist. In fact I would disagree with what Mr O'Donohue said, and with what Dr Carling-Jenkins just said — that the introduction of these new offences will make things more simple. I think it will make things more confusing, and I will go on to explain why I think that is, and it is mainly because the existing offences will now coexist with the new offences, making the statute more confusing as to how prosecutors will deal with these offences when they are prosecuting them and when the police and the courts are dealing with them.
I would also say that these offences are not new offences. The offences of what is called home invasion are already covered under the Crimes Act with the offences of robbery, armed robbery, break and enter, break and enter with intent, burglary, aggravated burglary, and assault. In terms of carjacking we already have offences of car theft, abduction, causing serious injury intentionally in circumstances of gross violence, causing serious injury recklessly, and robbery. These are not new offences. They have happened in the past, and they have been prosecuted in the past under the existing statute.
In fact when I got my driver licence on my 18th birthday I can remember my father saying to me, 'When you are driving, please lock your door', because at that time people were offending in the same way, and were getting into people's cars when they were stopped at the lights or stopped in the street. It is an offence that has been happening for a long time and it is still happening. From reports and crime statistics that we are hearing about, there may be an increasing number of them, but I am not sure that there is the massive increase that the government and the opposition are suggesting. Statistics do not show that there is a massive increase; they do show that there is a small cohort of young offenders who may be involved in these types of crimes. Whether the addition of these new offences into the statute book is going to do anything to reduce that offending is a very debatable point, because we already have provisions in the act to deal with these offences. I also have to say that the Greens are very concerned about yet more mandatory minimum sentencing being put into the Sentencing Act. The Greens have always opposed mandatory minimum sentencing, as do all the reputable legal bodies and the courts, because what we need to do is preserve judicial discretion in terms of sentencing.
Liberty Victoria made a submission on this bill and it sent a copy of the submission to me on 14 September. I want to quote some of that submission, because it goes to explain very clearly to the chamber, to the Parliament and to the people of Victoria why these new offences are not needed and will in fact make things more confusing in terms of prosecution rather than less confusing. While Dr Carling-Jenkins said these issues should not be used as a political football, in fact I think that is what is happening. I am quite surprised that the Attorney-General, the Honourable Martin Pakula, is introducing this legislation because I always viewed him as the sort of person who respects the statutes and would not be wanting to put into statutes unnecessary offences and offences that duplicate existing offences, making it difficult for prosecutors and courts to actually work out what offences people should be charged with. In terms of the offences, one of the justifications for these particular terms 'home invasion' and 'carjacking' is that it would enable better tracking of offences. That can already be done by pairing the existing offences in the Crimes Act with what offences people are actually committing. In its submission Liberty Victoria said:
Liberty Victoria is deeply concerned about the gradual erosion of judicial discretion in sentencing and the move towards mandatory and/or more prescriptive models of sentencing. Part of that concern stems from the need for the legislature to carefully protect the separation of powers so that a strong and independent judiciary is able to ensure that justice is done in the individual case.
And with mandatory minimum sentences that cannot happen. The court already has the Sentencing Act, which outlines the aims and objectives of sentencing. Judicial discretion enables the court to take into account mitigating and aggravating circumstances when imposing sentences for offences. The imposition of mandatory minimums under this bill contradicts that basic principle, and it is one that the Greens have always opposed. To that effect, the Greens have amendments to remove the mandatory minimum sentences in the bill, and I am happy to have those amendments circulated.
Greens amendments circulated by Ms PENNICUIK (Southern Metropolitan) pursuant to standing orders.
Ms PENNICUIK — With regard to the new offences, Liberty Victoria makes some very powerful comments. In terms of the new offence of home invasion, Liberty Victoria makes the point that:
… this proposed offence is very similar to the current offence of aggravated burglary (presently section 77 of the Crimes Act 1958).
And I agree, having looked at the two offences. There are, however, some important and very problematic differences:
First, by virtue of the proposed subsections 77A(1)(c)(ii) and (2), to establish that an accused person has committed the new offence the prosecution would not need to prove that an accused knew that there was or would be a person present in the home at the time of entry. The amendments, in effect, therefore introduce an element of strict liability into the offence.
In the second-reading speech the Attorney-General said:
The bill specifically introduces an element of strict liability into the offence of home invasion, so that an offender's knowledge of the presence of another person is irrelevant. This is deliberate and is a response that properly recognises the traumatic effect on victims. If two or more individuals decide to enter a residence as a trespasser to commit a burglary and there is someone present, they should face a serious charge. Whether they knew someone was present or whether they turned their minds to that possibility is irrelevant. Anyone who targets a residence for burglary takes the risk that a person will be inside and should face the consequences of that risk.
But Liberty Victoria says it is:
… strongly of the view that an offence of this seriousness, and punishable by such a severe penalty, is not one that should have an element of 'strict liability' as to the question of … the presence of a person inside a home. Liberty Victoria is of the opinion that whether a person 'knew that someone was present or whether they turned their mind to that possibility' is, in fact, a highly relevant consideration in any assessment of the gravity and nature of that person's conduct. A person who commits a burglary whilst being aware of, or reckless as to, a person being present, commits a more serious act than a person who does not have such knowledge. That has been recognised, for example, through the offence of burglary as opposed to aggravated burglary, both of which have been part of Victorian law for many years.
The second main difference between the existing offence of aggravated burglary and the proposed new offence is that the latter requires proof that the accused person entered the home in the company of one or more other persons … this further element is an unnecessary addition to the elements of the existing offence of aggravated burglary. Indeed, whether a person commits a home invasion in company with others, or whether such a person acts alone, is already a matter that would be taken into due account by a sentencing judge for the offence of aggravated burglary.
…
The proposed new offence is punishable by the same maximum penalty as the current offence of aggravated burglary. Therefore, there is nothing to be gained, in the way of sentencing, by adding this offence to the statute books. Furthermore, in circumstances where certain conduct could be charged under either the new proposed offence or the existing offence of aggravated burglary, the process of charging might lead to inconsistent prosecutorial practices, and unreasonably variable sentencing outcomes.
I agree with that description because we will now have two very similar offences side by side in the Crimes Act: one of aggravated burglary, which will not have the minimum mandatory sentences, and the new one of aggravated home invasion that will. This is a real problem with adding these new offences with the minimum mandatory sentences into the Crimes Act. I agree with Liberty Victoria that there is simply no need for this proposed offence to be added to the statute books and that the offence of aggravated burglary already properly and comprehensively deals with the very kind of conduct which the proposed home invasion offence deals with.
The points made by Liberty Victoria with regard to current sentencing practices are that the proposed reforms of this bill:
… fail to acknowledge that the courts have been increasing current sentencing practices for the offence of aggravated burglary, particularly in circumstances of 'home invasion' and confrontation.
The Court of Appeal is already active in providing guidance as to what are appropriate sentencing practices for courts dealing with such offences.
For the offences of aggravated burglary the statistics show that courts are already sentencing in a range of the government's proposed minimum mandatory sentences. The Director of Public Prosecutions has already appealed some cases where it deems the sentences to be too low. Liberty Victoria says:
This demonstrates that, where inadequate sentences are imposed, the Director of Public Prosecutions can (and does) appeal against sentence. This is the appropriate mechanism to ensure that inadequate sentences are remedied whilst ensuring that justice is done in the individual case.
And that is a very important point. Justice needs to be done in the individual case. Judicial discretion needs to be preserved to enable the court to ensure that justice is done in each particular case according to the circumstances, aggravating or mitigating. Furthermore:
… the Sentencing Advisory Council in its recent … report on sentencing guidance, pursuant to part 2AA of the Sentencing Act 1991 the Court of Appeal has the power to issue guideline judgements on certain categories of offending. Rather than proceed with such a blunt instrument as the current bill, it would be much better if the executive arm of government utilised the tools that are already at its disposal and which still protect separation of powers.
In terms of minimum mandatory sentencing, at paragraph 31 Liberty Victoria says:
The central problem caused by mandatory sentences was eloquently described by Mildren, J. in Trenerry v. Bradley:
Prescribed minimum mandatory sentencing provisions are the very antithesis of just sentences. If a court thinks that a proper just sentence is the prescribed minimum or more, the minimum prescribed penalty is unnecessary. It therefore follows that the sole purpose of a prescribed minimum mandatory sentencing regime is to require sentencers to impose heavier sentences than would be proper according to the justice of the case.
The Law Institute of Victoria in is submission on mandatory sentencing dated 30 June 2011, which I think I have quoted many times before in this chamber, says:
The overwhelming evidence from Australia and overseas … demonstrates that mandatory sentencing does not reduce crime through deterrence nor incapacitation, and may lead to increased crime rates in the long run, as imprisonment has been shown to have a criminogenic effect.
I am sure the government already knows everything that I am saying, but it is needs to be said in terms of the bill that is before the house.
I move to the offences of carjacking and aggravated carjacking, and particularly aggravated carjacking. According to Liberty Victoria — and I agree totally:
This proposed new offence has a substantial overlap with the existing offence of armed robbery in section 75A of the Crimes Act 1958. It is of particular concern that proposed section 79A(1)(a) essentially duplicates the elements of the offence of armed robbery, and thus a person accused of having committed such conduct in relation to motor vehicle would be in the vulnerable position of being exposed to one of two alternative offences. Prosecutors would be left to decide between charging a person under existing section 75A (and thereby not expose them to mandatory sentencing), or charging them under new section 79A(1)(a) (and thereby expose them to mandatory sentencing).
If this bill is passed, these two offences will exist virtually side by side in the Crimes Act 1958. Liberty Victoria continues:
This would … lead to disparate and inconsistent prosecutorial practices as well as sentencing practices in the courts in cases of armed robbery and aggravated carjacking, in circumstances where the … offending may be essentially the same.
I have quoted from or paraphrased extensively the submission from Liberty Victoria, which I think is available to everybody. It has expressed very clearly the lack of any need for these new offences; and in fact not only the lack of a need for them but the fact that they already exist in the Crimes Act and that over the last decades people have been prosecuted by the courts for these so-called offences of carjacking and home invasion.
I reiterate that the Greens share the concerns of everybody in the Parliament and the community about the commission of those offences. We agree that the offenders do need to be prosecuted, but they already can be prosecuted under the existing legislation. The provision of new offences that essentially duplicate existing offences with different penalties is not something that should be supported. While we do abhor the offences that are being committed, I make the point that apart from the mandatory minimum, the existing offences attract similar maximum penalties already.
There has been a lot of discussion about the commission of these offences and how the public of Victoria is feeling unsafe. I do not necessarily agree that the public of Victoria at large is feeling unsafe. Certainly people who have been subject to these offences and their friends and family and their local communities may be feeling unsafe, but the question is whether the introduction of these new offences is going to make any difference to that — I would suggest that it will not — and what actually will make some difference to that. As I have mentioned before, the evidence from Legal Aid Victoria is that there is a very small cohort of offenders who are committing most of these offences.
In fact I heard the Minister for Police speaking with Jon Faine on the radio, and she also conceded that there is a very small cohort of offenders who are committing these offences. She made the point that some of the usual practices and programs to deal with these young people have not been working and conceded they need to make an extra effort around these young people to prevent them from offending in the first place and to prevent them from reoffending.
I think that is where the effort needs to be made in terms of making the community safer. In terms of these offences or any other serious violent offences that are being committed by young people, we need to focus our attention on rehabilitation, on education programs, on mental health programs, on unemployment programs and on better housing of people when they do come out of incarceration or youth detention.
I have raised before in the Parliament that there is not enough resourcing for housing for these people, so if they do not have housing, they end up getting back into trouble; and if they do not have supports in the community, they end up getting back into trouble. The way to make the community safer is to focus attention on these areas. Broadly that is called justice reinvestment. It is about investing and not so much on incarcerating people. If you keep incarcerating young people, you have to remember that they will come out of incarceration. If they have not had proper education programs and support while incarcerated and they do not have it when they come out, the community will not be safer, whatever offence they have been charged with in the first place. That is where we need to be focusing our attention, and also avoiding incarceration except for the most serious violent offenders, where that will need to occur, particularly with young people.
I find it very ironic that Mr O'Donohue, who used to be the Minister for Corrections, talks about, as he did yesterday, the number of offenders in police cells, overflowing remand centres et cetera, which are the direct consequence of the provisions that were added to the parole and bail legislation under the previous government, which provisions we opposed.
Mr O'Donohue interjected.
Ms PENNICUIK — We opposed those provisions, as Mr O'Donohue well knows, which were meant to be directed at serious violent offenders but which in fact apply across the board to all offenders.
We need offenders to be on parole, because if they are not on parole, they come to the end of their sentence and are released not on parole and not supervised unless they are covered by the serious sex offenders supervision and detention scheme, and that only applies to a very small number of offenders.
Mr O'Donohue stands up and regrets what is going on in terms of overcrowded prisons, police cells and the remand centre, and it is a direct result of the bad policies and provisions brought in by his government and also the lack of resourcing and the taking away of funds from the rehabilitation programs that were needed. What we need is more focus on diversion in the courts, particularly for young people, and more focus on making sure they have support and education and employment opportunities, and that is how we make the community safer.
These particular provisions that the government, sadly, is putting forward make the statute book more confusing, not less confusing, and put new offences into the statute book that have got names so that the government can say, 'Oh, well, we're doing something about that particular issue', when these offences have always been illegal. It has never been the case that acting in this way is okay. It has always been illegal; it has always attracted high penalties. And the statistics from the courts show that offenders are receiving the penalties that the government is wishing to put in terms of minimum mandatory sentencing, which the Greens will never support.
Having said that, I should say that the Greens will not be supporting the amendments put forward by Mr O'Donohue to in fact increase those minimum mandatory sentences from three to five years. So with those comments, I look forward to the committee stage of the bill.
Committee Stage:
Clause 1
Ms PENNICUIK (Southern Metropolitan) — I move:
1. Clause 1, page 2, lines 1 to 5, omit paragraph (b).
My amendment 1 is an amendment to the purposes clause and seeks to delete paragraph (b) from the purposes clause. That paragraph amends the Sentencing Act 1991 to provide that mandatory terms of imprisonment apply to the offence of aggravated carjacking and aggravated home invasion.
I understand and have anticipated that this amendment, because it alters the purposes clause, is a test for all further amendments to subsequent clauses of the bill that relate to mandatory minimum sentencing.
In support of the amendment that I am moving here, and given that it is only one amendment even though it would affect many clauses of the bill, I will reiterate comments I made during the second-reading debate. Briefly, the reason for moving this amendment is that the Greens have always opposed the insertion of minimum mandatory sentencing into the Sentencing Act 1991 because it undermines the separation of the powers between the Parliament, the executive and the courts, and it takes away the discretion of the courts to fully consider aggravating and mitigating circumstances with regard to offenders that come before them charged with particular offences. Also it effectively means that politicians are saying that despite the circumstances of the case, each offender has to be sentenced for at least three years, and possibly more, for either of these offences of aggravated carjacking or aggravated home invasion.
There is ample evidence that mandatory minimum sentencing does not work. It also — and I think Ms Patten mentioned this in her contribution — means that less people will plead guilty to offences, thus taking up the time of the courts unnecessarily and making it more difficult for the victims of some of these offences. I repeat: these are already offences in the Crimes Act 1958; they are just getting a different name. We will now have the situation where we will have two very similar, if not almost identical, offences sitting alongside each other in the Crimes Act, with different penalties applying under the Sentencing Act. This is only going to make things more complicated and confusing for prosecutors and for the courts, not less complicated or less confusing, and not simpler, as Mr O'Donohue was trying to make out in his contribution.
As I mentioned, there is a very helpful, comprehensive and detailed submission from Liberty Victoria about the problems of inserting these new offences into the Crimes Act. They started out their submission with a comment very similar to one that I have made in this place. I have been here long enough now to see a whole lot of unnecessary extra offences being put into the Crimes Act and into other acts, and a succession of mandatory minimum sentences put into the Sentencing Act, including baseline sentencing, which is based on some sort of complicated calculations that presiding jurisdictional officers have to go through to arrive at proper baseline sentencing. The Court of Appeal has already said that is causing major problems in the courts and has asked the government to remove them. So far it has not done that.
I refer back to the fundamental point. There have been a succession of unfortunate additions to the Crimes Act and to the Sentencing Act over the last few years, particularly the last five years and particularly during the time of the previous government. They have just clogged up the statute books with unnecessary offences that already exist and with a whole lot of different offences for which mandatory minimums apply in varying degrees. None of this is necessary, because as I mentioned in my contribution to the second-reading debate, if you look at the statistics for the sentencing of aggravated burglary, which is basically exactly the same offence as home invasion, the sentences imposed by the court are averaging around the minimum sentence that the government wishes to impose. As I said, this will take away the discretion of the courts to deal with the cases that are put in front of them.
The other fundamental point of law made by Liberty Victoria in their submission is that there should be justice for every individual case, not a blanket minimum sentence for any person who comes charged with those offences, but justice for every individual case. That has been one of the cornerstones of the legal system that we have in this country and in other countries, and we should not be undermining it with unnecessary mandatory minimums. We already have the ability for the Office of Public Prosecutions to appeal sentences, we have the appeal court to deal with that, we have sentencing guidelines, we have the Sentencing Act. We do not need minimum mandatory sentencing. That is why, consistent with our longstanding position, we are moving amendments to remove these minimum mandatory sentences from the bill.
Debate continued...
Mr HERBERT (Minister for Training and Skills) — The government also does not support the Greens amendment. The amendment, as Mr O'Donohue said, removes the statutory minimum penalty — not mandatory penalty — from the bill for the offence of aggravated carjacking and aggravated home invasion.
These are quite serious crimes and they are certainly a very serious concern to the police and to the community. When we are talking about aggravated carjacking, we are talking about carjacking that causes injury, with a weapon; and when we are talking about aggravated home invasion, we are basically talking about three or more gang members, with a weapon or weapons, in the houses where people are and where the offenders knew or were reckless as to whether there were people in the house. These are very serious crimes. They are causing huge problems in the community, and where it happens it is of concern to people. We believe that setting a statutory minimum non-parole period for these offences of three years is appropriate for the gravity of the offences. We also believe that the maximum of 25 years is appropriate.
I would say that in certain circumstances — and I must say we would expect the courts to be aware of the Parliament's viewpoint on this — the courts do retain a discretion to impose a sentence other than the statutory minimum if satisfied that special reasons apply. So with that we will be opposing the Greens amendment.
Debate continued...
Ms PENNICUIK (Southern Metropolitan) — Just briefly, if I could respond to the minister in terms of his remarks that they are serious crimes, we understand that they are serious crimes. They are already serious crimes under the Crimes Act 1958. They are already attracting the types of sentence that the government is wishing to impose. So even if the government said, 'Well, the sentences that we wish to see imposed are not being imposed', that would not be true, because the statistics show they are being imposed by the courts, and increasingly so. But nevertheless the fundamental idea is to leave that discretion to the courts, not only for the setting of the sentencing but for the setting of the parole period as well, and that is the other problem that you cannot get around when you put in this type of mandatory or compulsory — let us put it that way — setting of a minimum sentence and a minimum non-parole period. I just wanted to respond to that. We understand fully that they are serious offences, and they are being already treated as serious offences by the courts.
Greens amendments not passed.
Clause agreed to; clause 2 agreed to.
Clause 3
Mr O'DONOHUE (Eastern Victoria) — I move:
1. Clause 3, page 6, line 19, omit “3” and insert “5”.
The effect of the amendment would be to increase the statutory minimum period for the aggravated home invasion offence from three years to five years. I think we have canvassed the reasons why in the second-reading debate. Consistent with the private members bill for aggravated carjacking that passed this place, the opposition believes that for that grave and serious offence which is causing so much concern in the community at the moment, and which has been for a considerable period, a statutory minimum period of five years is appropriate.
Ms PENNICUIK (Southern Metropolitan) — The Greens will not be supporting this amendment because we do not support the fixed non-parole period of three years, let alone extending it to five years, for all the reasons that I have already outlined when moving my amendment to remove the fixed non-parole period in clause 1(b) of the purposes clause of the bill. Sadly, that was not supported by the majority of the committee, so the Greens will not support the amendment moved by Mr O'Donohue to increase that from three to five years.
Mr HERBERT (Minister for Training and Skills) — The government does not support the opposition's amendment to increase the statutory minimum non-parole period in the bill from three to five years. We agree with the opposition and are as one on the fact that these are serious crimes that need a serious response, but in our opinion the quantum of the statutory minimum sentences proposed by the opposition is set outside of regard to comparable offences within the Crimes Act 1958. The offence of causing serious injury intentionally in circumstances of gross violence has a statutory minimum non-parole period of four years. This is a very serious offence that could result in someone being very severely injured. In our opinion it would be inappropriate for the offences of aggravated carjacking and aggravated home invasions, which do not require physical injury to be inflicted, to have a higher statutory minimum than an offence which has the element of the infliction of serious harm.
Opposition amendments not passed.