2016-08-30
Ms PENNICUIK (Southern Metropolitan) — The Crimes Amendment (Carjacking) Bill 2016 introduced by Mr O'Donohue is a reasonably short, straightforward bill. It creates the new offences of carjacking and aggravated carjacking, with 15 and 25 years maximum imprisonment sentences respectively. Under clause 3 these new offences would be inserted into new sections 77A and 77B of the Crimes Act 1958. The bill also creates a statutory minimum non-parole term of imprisonment of three years for adults for a conviction of carjacking and five years for adults for a conviction of aggravated carjacking under clauses 4 and 5. They insert new sections 10AC and 10AD into the Sentencing Act which set new statutory minimums.
The bill provides that if a court is satisfied that a special reason in relation to an offender, as set out under section 10A of the Sentencing Act 1991, applies, the court then has full sentencing discretion. That is pretty well the bill in a nutshell.
In terms of the context of the bill, clearly it would be horrific for anybody to experience someone invading their car, assaulting them, driving them away or stealing things from them — and Mr Ramsay was just talking about two particular examples and I know there have been others. It is clearly a horrific crime, but it is not that such things have hitherto been legal and now are going to be made illegal. We already have many offences under the Crimes Act that cover what this term 'carjacking' has come to mean. It is a term that has become part of the vernacular to describe either taking a car from a person and leaving the person behind or in some circumstances — and Mr Ramsay mentioned one and there have been others — where the person may still be in the car. It is covered by car theft. It is also covered by the offence of abduction, which is an offence under the Crimes Act.
There are also a large number of offences under the Crimes Act such as causing serious injury intentionally in circumstances of gross violence; causing serious injury recklessly; causing serious injury intentionally and/or recklessly or causing injury intentionally or recklessly; threats to inflict serious injury; and negligently causing serious injury. There are also of course the offences of robbery and aggravated robbery, which have historically been used to deal with this type of offence now being covered by this term. I say that because there has been an implication in the contributions to the debate by some people that there is nothing in the Crimes Act or the Summary Offences Act 1966 to actually deal with these offences, and of course there is.
While there may be increased reporting of incidences of so-called carjacking, it is not a new offence. I can remember when I first started driving — more years ago than I care to name — that type of offence was around then. Most of the offences that are listed in the Crimes Act — and I did not mention kidnapping, which is there; robbery, armed robbery, aggravated burglary and burglary — already cover the offences, either separately or in conjunction with each other, of the new offence that Mr O'Donohue's bill is seeking to insert into the Crimes Act and the Sentencing Act.
The Greens recognise the seriousness of these types of offences, but we do oppose, as we always do, the introduction of mandatory statutory minimum sentencing as set out in clauses 4 and 5 of the bill. As I have said many times before, mandatory sentencing can lead to unjust outcomes in sentencing, and there is no evidence to suggest that it leads to a reduction in crime. We would like to uphold the importance of judicial discretion in sentencing in conjunction with the judiciary being guided by sentencing guidelines under the Sentencing Act 1991 and the Court of Appeal guideline judgements.
In comparison with the offences that I have mentioned, such as intentionally causing serious injury and recklessly causing serious injury in circumstances of gross violence which attract a four-year starting point, aggravated carjacking under this bill will attract a five-year minimum. The distinction between the two is not clear, since they are both extremely serious and harmful offending. It may be argued that intentionally or recklessly causing serious injury in circumstances of gross violence, depending on the circumstances of course, may be even more serious. This may lead in practice to defence lawyers trying to avoid this by resolving or pleading to a lesser charge of robbery, for example.
Mr Ramsay talked about increases in the crime rate. It is interesting to note that Victoria Legal Aid's executive director said last month that about 40 per cent of youth offences — and mostly these types of offences are carried out by young people — are committed by about 5 per cent of young offenders, suggesting a group of repeat offenders that are responsible for a large number of crimes in Victoria. Mr Ramsay talked about what we should do about that. What we do need to be doing about that is putting more resources into the youth justice system to assist the types of young people who are getting caught up in these types of offending, who are going in and out of the justice system and youth correctional centres. There are clearly not enough resources going into that and into their communities to deal with the causes of this type of offending. Just bringing in new offences with new penalties attached to them, including statutory minimums, is not really addressing the issues of prevention. The community will be kept safer by more resources being put into preventing people being involved in these particular offences and also rehabilitating those who have been involved in those offences to prevent them from recidivism.
I note that in Mr O'Donohue's bill the new offence of aggravated carjacking mentions that a person would be guilty of aggravated carjacking if at the time they were in possession of a firearm or imitation firearm, any offensive weapon or any explosive weapon, and for the purposes of that, the definitions would be the same as in section 77 of the Crimes Act.
If you look at section 77 of the Crimes Act, which deals with the offence of aggravated burglary, you find that it already lays out the same provisions in terms of aggravated burglary. What I would note, though, is that the offence of aggravated burglary seems to be limited to buildings. In fact probably the best way to deal with this issue is to broaden that definition from buildings to vessels and/or vehicles. Then you would actually have covered off on the offence that has been committed. Other offences, such as if a person is driven off in their car, would be covered by the existing offences of abduction and kidnapping under the Crimes Act.
Ms Symes spent some time on some of the other structural problems with the bill. I too would say that the bill was only introduced in the last sitting week. I note that Mr O'Donohue offered a briefing, but I was not able to attend it, which I notified him of. I also mentioned to Mr O'Donohue that this bill would probably have benefited from being referred to a committee, as we have just done with a private members bill from the Greens, but Mr O'Donohue was not open to that idea.
We believe that the Crimes Act already covers off on all the offences described under the bill as 'carjacking' or 'aggravated carjacking'. These offences already exist under the Crimes Act, and people have been prosecuted for them over many years using these existing offences.
I note that New South Wales has this particular offence in its legislation, but that does not necessarily mean it is the right way to go. I think we should always be careful and cautious about adding new offences, which are really just new ways of naming existing offences, and not confusing the statute book — particularly an act like the Crimes Act, which is a stalwart of criminal law — with a plethora of overlapping and very similar offences. Again, I say that the offences as named here have existed for a long time — notwithstanding that there may be what has been described as a spate or increase in them — and they have been dealt with sufficiently under the Crimes Act for a very long time, so we question the need to start describing a new offence that is simply another way of describing an existing offence.
This is a little bit different from some of the offences that we have been considering, for example, in the Crimes Amendment (Sexual Offences) Bill 2016, which is still to go through the committee stage. These are actually new offences; they did not exist before in terms of technology; people are now able to offend in ways that they could not have done 10 or 20 years ago. However, this particular offence is already covered off by offences in the Crimes Act; prosecutors are already able to use that act.
I understand that the government is introducing a similar bill into the Assembly, so this issue will come back to us. We will deal with that particular bill as it goes through the various processes required in this Parliament. But in this particular instance, the Greens will not be supporting this bill.