Crimes Legislation Amendment Bill 2016

Ms PENNICUIK (Southern Metropolitan) — The Crimes Legislation Amendment Bill 2016, which we are debating at present, is not a very long bill. It is only 14 clauses and contains three main provisions. The first expands the statutory minimum sentences for certain offences, in particular offences committed against emergency workers under the Sentencing Act 1991 and the Crimes Act 1958, to include custodial officers. These provisions are in part 2 of the bill. Basically they expand the system of mandatory sentencing for those particular offences, and I will return to that later in my contribution.

Part 3 of the bill expands the specific assault offences against emergency workers that already exist to also apply to custodial officers on duty. They are covered by clauses 7 and 8 of the bill, which extend certain sections of the Crimes Act 1958, in particular section 31 of that act and section 51 of the Summary Offences Act 1966, which I will refer to later in my contribution.

Part 4 of the bill provides for victims of sexual assault to give evidence on appeal by allowing the admission of their recorded evidence under the Criminal Procedure Act 2009. On appeal, there will be no need for those complainants to repeat their evidence in court; their recorded evidence will be admissible under those circumstances.

They are the main things this bill does. In terms of those main provisions, the Greens are very supportive of part 4 of the bill with regard to the giving of recorded evidence by victims of sexual assault in an appeal. We also support part 3 of the bill, which deals with the extension of specific offences under section 31 of the Crimes Act 1958 and section 51 of the Summary Offences Act 1966.

The part of the bill that we do have concerns about is the expanding of the statutory minimum sentences that currently exist under the Sentencing Act 1991 and the Crimes Act 1958 for assaults on emergency workers and custodial officers. This is consistent with our ongoing opposition to mandatory sentencing. The Greens have a longstanding position that there should not be a provision for mandatory sentencing in the Sentencing Act 1991 but that sentencing should be left to the discretion of the courts, which have the specific details and circumstances of every offence before them and can take them into account.

Mandatory minimum sentences for certain crimes against emergency workers were part of the bill introduced by the previous government in September 2014. At the time that bill was introduced we did not support it, and it was interesting that at the time Mr Tee, a speaker for the then opposition, which is now in government, said:

… the bill will not achieve an enormous amount, and it is not without some concerns and trepidation that we approach it.

It should have had concerns and trepidation about the introduction of minimum statutory sentences.

The Sentencing Amendment (Emergency Workers) Act 2014 introduced minimum sentences for certain offences. Those offences will be extended to cover custodial officers under this bill. They include causing serious injury intentionally in circumstances of gross violence, which carries a minimum non-parole period of five years; causing serious injury recklessly in circumstances of gross violence, a minimum non-parole period of five years; causing serious injury intentionally, a minimum non-parole period of three years; and causing serious injury recklessly, a minimum non-parole period of two years.

Of course they are very serious offences, and I would expect that any court faced with those offences against any person, but particularly against an emergency services worker — or against a custodial officer, which this bill seeks to provide for — would treat those offences very seriously if a person was brought before the court and charged. As I said back in 2014 with regard to the previous government's bill, the Sentencing Act 1991 already has very strong governing principles which guide courts in sentencing offenders.

The sentencing guidelines, as outlined in section 5 of the Sentencing Act 1991, outline the purposes for which sentences may be imposed. They include: to punish the offender, to deter the offender, to establish conditions within which the offender may be considered by the court to be rehabilitated, the denunciation of that type of conduct, to protect the community and a combination of two or more of those purposes. Under the act the court must not consider the time actually spent in custody or any sentencing practices arising out of section 10 of the act. But in sentencing an offender the court should take into consideration, under sections 5(2AB) and 5(2AC), current sentencing practices, the nature and gravity of the offence and the offender's culpability and degree of responsibility for the offence.

Just with those two provisions — the nature and gravity of the offence and the offender's culpability and degree of responsibility for the offence — in terms of an assault on an emergency service worker or a custodial officer, the courts would take those types of offences against those types of persons very seriously. Under these provisions the courts also take into account the impact of the offence on any victim of the offence; the circumstances of any victim of the offence, such as what was the occupation of the person and what were they doing; any injury, loss or damage resulting from the offence; the offender's character; and, importantly, the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.

The Sentencing Act already comprehensively covers the need for a court to take into account aggravating and mitigating circumstances and all the circumstances that apply to a certain offence when an offender is brought before them charged with the assault of any person, including an emergency service worker or a custodial officer, which this bill wishes to extend the minimum mandatory sentencing to. The Greens take the assault of an emergency worker or a custodial officer very seriously, and I believe the court would too.

In terms of the evidence for the need for this bill, the Attorney-General has spoken in his second-reading speech about the riot at the remand centre that everybody has heard about and also the assaults on three or four custodial officers at Barwon Prison, which was a very serious offence to be committed there. The Greens agree it was a serious offence; we just do not agree that minimum statutory terms of imprisonment are going to prevent such an offence or that a court would not impose a sentence either equal to the ones that are mentioned in this bill or above them, taking into account every circumstance of the offence on the particular day by the particular person.

As I have mentioned before in Parliament, there is no evidence that mandatory sentencing works. In fact there is evidence that it may be counterproductive in that prisoners or offenders — people charged with offences — are probably less likely to plead guilty to an offence in the face of a minimum statutory sentence and that a lot of the activity that goes on in courts between the lawyers for both sides would be less open and transparent than if the Sentencing Act was just left the way it is, without imposing minimum mandatory sentencing on particular offences.

We will stick with the principle that judicial discretion is best kept in the Sentencing Act, not having a series of bills come before the Parliament imposing particular different mandatory sentencing for particular different classes of offences and for particular different classes of victims. That is not to say, as I said, that we do not take the offence against an emergency worker or custodial officer very seriously.

I would like to take up the point that Mr Melhem made that we need this particular legislation to offer protection to custodial officers and to provide them with a safe workplace. I totally agree with protecting custodial officers and providing them with a safe workplace, but I am not sure that this legislation or the introduction of minimum mandatory sentencing will do that. What will do that is the government properly resourcing the corrections system and wherever custodial officers are working making sure that people are well trained and that there are enough resources and tools at their disposal to actually prevent the types of assaults that we are talking about — assaults by prisoners against custodial officers or those in custody against custodial officers.

Mr Melhem talked about a number of assaults — 243 assaults, of which 103 caused an injury. I am very concerned to hear that there have been that many assaults. I suggest that there needs to be something done in terms of the prevention of further assaults in the custodial system rather than focusing here on the end of the process, when the assault has already occurred.

The parliamentary library, in its information pack on the bill, produced some statistics from the Productivity Commission's Report on Government Services regarding assaults in custody in 2014–15. In looking at those statistics in terms of prisoners assaulting officers, one would have to say there are quite a lot of gaps in the statistics with regard to coverage of all of the states. In terms of serious assault only three states are recording any statistics — or the Productivity Commission is only reporting on three states, which are Victoria, Queensland and Western Australia, and they are all pretty well equal. In terms of serious assaults there is just under 1 assault per 100 prisoners or detainees. In terms of assaults, not serious assaults, there is more reporting, and it could be that there are different reporting requirements around the states, which the notes under the table tend to suggest. But in terms of assaults, not serious assaults, Victoria is somewhere in the middle of the states with regard to the number per 100 prisoners or detainees.

There were the incidents at Barwon Prison and the remand centre that I referred to, and everybody takes those completely seriously. But in terms of the protection of custodial officers it is more about prevention. I mentioned this in regard to the emergency service workers too. The parliamentary committee that looked at assaults in hospitals and other health facilities made a lot of recommendations, but they were about better prevention of the problems in the actual emergency rooms and in hospital admission areas. The committee thought that would better protect emergency workers.

The Greens will not be able to support that part of the bill, and we have prepared an amendment in that regard, which I am happy to have circulated. Acting President, I have already circulated the amendments to the parties.

Greens amendments circulated by Ms PENNICUIK (Southern Metropolitan) pursuant to standing orders.

Ms PENNICUIK — I will briefly talk about part 3 of the bill, which is in regard to the extension of certain offences under the Crimes Act to include custodial officers under section 31.

This particular section — section 31(1)(b) of the Crimes Act 1958 — is in regard to a person who assaults or threatens to assault, resists or intentionally obstructs an emergency worker, and this would be expanded to include a custodial officer so that a person who assaults or threatens to assault, resists or intentionally obstructs an emergency worker or a custodial officer on duty, knowing or being reckless as to whether the person was an emergency worker or custodial officer on duty, or intentionally obstructs a person lawfully assisting an emergency worker on duty or a custodial officer on duty, commits an offence attracting a penalty of up to five years.

The Greens will support the extension of this particular offence, because it was recommended by the parliamentary inquiry into assaults on emergency workers that it be an offence to assault, threaten to assault, obstruct or hinder an emergency worker, and I feel that it is fair enough to extend that to custodial officers. Also the penalties are not mandatory penalties; the offences attract a maximum penalty but leave discretion to the court.

Under section 51 of the Summary Offences Act 1966, again a person must not assault, resist, obstruct, hinder or delay an emergency worker and, with this bill, a custodial officer on duty et cetera. This has a penalty of 60 penalty units or imprisonment for six months. The Greens will be supporting that part of the bill. We do support it being an offence to assault, threaten to assault or hinder emergency workers or custodial workers in their duties.

In terms of the final part of the bill I will speak on, part 4, the Greens are happy to support that part and in fact welcome it because it would mean that during appeals those people who are victims of sexual assault will not have to front up at court again and repeat their evidence. New section 387B of the Criminal Procedure Act 2009 will provide for the admission of recorded evidence of a complainant given in a trial for a sexual offence. It already has been given and can be used again in terms of an appeal. This is a welcome addition to the act.

With those reasonably few words, the Greens will support parts 3 and 4 of the bill but will not be able to support part 2 of the bill, which introduces mandatory sentencing for crimes against custodial officers, as exists for crimes against emergency workers, which we did not support in 2014. In terms of the introduction of mandatory sentencing into the Sentencing Act 1991, the Greens have consistently not supported this, and bodies such as the Law Institute of Victoria, the Victorian Bar and Liberty Victoria also oppose mandatory sentencing for the reasons we have given.

In summary, there is no evidence that mandatory sentencing works. There is evidence that it skews the court processes and in particular results in less people pleading guilty to offences if they are faced with a mandatory minimum sentence, and just generally it removes discretion from the court, notwithstanding that I understand that under the bill mandatory sentencing will not apply to those under 18 and that there are some provisions for extenuating circumstances. But there is no need for it. There is plenty of scope under the current Sentencing Act, without this, for courts to apply an appropriate sentence, particularly taking into account aggravating circumstances which may exist with regard to any offence against a custodial officer.

In committee:

Ms PENNICUIK (Southern Metropolitan) — I move:

1.     Clause 1, lines 4 to 6, omit all words and expressions on these lines.

2.     Clause 1, page 2, lines 1 to 5, omit all words and expressions on these lines.

I think they are really numbered 1 and 2 because they cross over pages. The effect of the amendments is basically to omit paragraph (a) of the purposes clause. That would, in effect, remove the parts of the bill that provide for expanding the statutory minimum sentences that exist for certain offences against emergency workers so that the same sentences apply to offences against custodial officers.

As I said in the second-reading debate, the reason for these amendments is that the Greens have a longstanding view, principle and position that mandatory sentencing is ineffective. It takes away judicial discretion and can result in unfair sentencing that is not in line with the circumstances of the offences, as serious as those offences may be.

The offences that would apply to all are basically causing injury via assault.

I do draw the attention of the committee to the fact that the Greens are not opposing part 3 of the bill, which does extend the provisions under the Crimes Act for the offence of assaulting a custodial officer or hindering the work or obstructing the work of a custodial officer. Those particular offences do attract reasonably high penalties — in the first instance up to five years imprisonment for assault — but it is not a mandatory sentence. We would say there is enough there, and there is enough discretion in the judiciary to apply the governing principles of the Sentencing Act, as I mentioned, in particular the fact that a sentencing court would take into account all the circumstances regarding any offence with which a person is charged, including aggravating circumstances and the behaviour of the offender.

Really we have seen no evidence ever presented in this Parliament as to the need for mandatory sentencing. It is something that is not required in the statute book. There are already enough tools in the toolbox for courts to use under the Sentencing Act and under the Crimes Act, with the sentences that are already attached to certain offences. While the Greens abhor any attacks on anybody, be they an emergency worker, a custodial officer or any other person in the community, we feel there are already enough powers under the Sentencing Act without mandatory sentencing. As I said, that can lead to unjust outcomes and unintended consequences that we should be avoiding. We should maintain judicial discretion.

Of course I did not mention in the second-reading debate that there is always the appeal court. The Director of Public Prosecutions has often appealed a sentence he has felt was not appropriate. There are those mechanisms, as well as the judicial commission, for educating and keeping the judiciary up to speed with sentencing requirements. We feel this provision is not necessary, and therefore we seek to remove it from the bill but leave the other provisions in the bill which we do support.

Committee divided on amendments:

Ayes, 6

Barber, Mr                              Patten, Ms (Teller)

Dunn, Ms                                Pennicuik, Ms

Hartland, Ms (Teller)              Springle, Ms

Noes, 34

Atkinson, Mr                          Melhem, Mr

Bath, Ms (Teller)                    Mikakos, Ms

Bourman, Mr                          Morris, Mr

Carling-Jenkins, Dr                 Mulino, Mr

Crozier, Ms                             O'Donohue, Mr

Dalidakis, Mr                          Ondarchie, Mr

Dalla-Riva, Mr                        Peulich, Mrs

Davis, Mr                                Pulford, Ms

Drum, Mr                                Purcell, Mr

Eideh, Mr                                Ramsay, Mr

Elasmar, Mr                            Rich-Phillips, Mr

Finn, Mr                                  Shing, Ms

Fitzherbert, Ms                        Somyurek, Mr

Herbert, Mr                             Symes, Ms

Jennings, Mr                           Tierney, Ms

Leane, Mr                                Wooldridge, Ms

Lovell, Ms                               Young, Mr (Teller)

Amendments negatived.

Clause agreed to; clauses 2 to 14 agreed to.

Debate continued.

Ms PENNICUIK (Southern Metropolitan) — If I could just respond to some of the comments from the minister. I just want to reiterate that the Greens are fully supportive of custodial officers as defined in the bill being protected and not being subjected to occupational violence, but the argument really is whether mandatory sentencing as provided for in this bill is actually going to protect custodial officers from occupational violence. It would seem to me that the government needs to make sure that prisons are not overcrowded and that custodial officers are well resourced and well supported and have plenty of training and plenty of backup, and the government should be working with the relevant union with regard to that. That is how you are going to prevent occupational violence, and that should be the focus — prevention of occupational violence in custodial settings.

I also just want to go to what everybody has been saying during the debate on this bill — that it is because of two incidents. Two incidents have been pointed to. The incident at the remand centre was described by the corrections office as an isolated incident and even described by the union representative as a bit of a shock and coming right out of the blue. The minister mentioned that some custodial officers have been injured, and I accept that is the case, but the statistics do not show, apart from those instances, that there is a rising problem, and there is no evidence being presented to this Parliament that the courts are not dealing with this properly under the existing sentencing provisions.

It is important to put that on the record. We think the focus should be on prevention and on occupational health at all times, and not on mandatory sentencing, for the reasons I have already outlined.