2017-12-12
Ms PENNICUIK (Southern Metropolitan) (13:56:15) — I rise to speak on the Crimes Legislation Amendment (Protection of Emergency Workers and Others) Bill 2017. The bill introduces a number of offences, which include intentionally exposing an emergency worker, custodial officer or youth justice custodial worker to risk by driving, with a maximum 20-year term of imprisonment; recklessly exposing an emergency worker, custodial officer or youth justice custodial worker to risk by driving, with a 10-year maximum term of imprisonment; and damaging an emergency services vehicle, with a maximum five-year term of imprisonment.
It is worth saying at the outset that 'emergency worker', as defined in the bill, is the same as 'emergency worker' as defined in the Sentencing Act 1991, which includes police protective services officers, police custody officers, ambulance personnel, Metropolitan Fire Brigade (MFB) fire personnel, Country Fire Authority (CFA) fire personnel, Victoria State Emergency Service (SES) workers, emergency workers, emergency volunteer workers and custodial officers. So in fact the bill includes custodial and youth justice custodial officers specifically.
The bill also introduces aggravated versions of the new offences of intentionally or recklessly exposing an emergency worker, custodial officer or youth justice worker to risk by driving, and includes a statutory two-year minimum term of imprisonment if an adult offender commits the offence of intentionally exposing an emergency worker to risk to their safety by driving and, in so doing, causes an injury to the emergency worker while they are on duty.
It is worth saying that the Greens share the concerns of everyone in the Parliament and in the community that there has been an increase in driving offences such as this bill is aiming at, which is driving a vehicle into a police vehicle, an ambulance, a fire appliance or any other vehicle that is used by the emergency services workers that are covered by the bill, and I just outlined the range of workers that this bill covers. We are concerned for the safety of emergency workers in those circumstances. We find it, as everyone else does, completely unacceptable that people would drive their vehicle into an emergency services worker and an emergency services vehicle in such a way as to wish harm on the occupants or to damage the vehicle as well.
Business interrupted pursuant to sessional orders.
As I was saying before question time, the Greens share the concerns of everyone in the Parliament and the community at the increase in the number of driving incidents involving police vehicles and police and emergency services workers, as I mentioned earlier, as defined under the bill. I understand that a number of police have been injured in these incidents, and that is very concerning. I spoke on that very issue in response to the bill that was introduced earlier this year by Mr O'Donohue.
Could I take the opportunity, as I do every time we are dealing with a bill that concerns the police, to put on record my thanks to the police and in this case protective services officers, police custody offices, ambulance personnel, paramedics, Metropolitan Fire Brigade personnel, Country Fire Authority personnel and Victoria State Emergency Service personnel, all of whom are covered by this bill, for the difficult work they do on many occasions on behalf of the people of Victoria.
As I was saying, the bill puts in place basically driving offences. The offences in many ways duplicate existing offences in the Crimes Act 1958. The bill will insert new sections into the Crimes Act under, in particular, section 317, adding more subsections to that section of the Crimes Act.
But as I have said on many occasions when the government has introduced very specific offences that in fact duplicate already existing offences in the Crimes Act, the Greens have concerns about this duplication of offences in the Crimes Act and in the Sentencing Act 1991.
I must say at the outset that it is already a crime to drive a vehicle into another vehicle. It is not as if the passing of this bill will make something a crime that hitherto has not been a crime. It is already a crime under the Crimes Act to do such a thing. We already have two sections of that act which comprehensively cover the offences that this bill is trying to bring into effect to cover certain classes of people — those collectively called emergency services workers. Under the Crimes Act we already have section 318(1), headed 'Culpable driving causing death', which says:
Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both.
I note that the level 3 penalty is similar to the penalty for the new offence being brought in by this bill, which is intentionally exposing an emergency worker to risk by driving.
Section 318(2) of the Crimes Act states:
For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle—
(a) recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result …
(b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case …
I add, President, that I am paraphrasing the next subsections: (c) under the influence of alcohol or (d) under the influence of a drug.
Section 318(2A) states:
(a) a person drove a motor vehicle when fatigued to such an extent that he or she knew, or ought to have known, that there was an appreciable risk of … losing control of the vehicle; and
(b) by so driving the motor vehicle the person failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed in all the circumstances of the case.
I have read out that section of the act to show that it is comprehensive and already covers anything that would fall under the specific offences that are being introduced by this bill just to cover emergency services workers. Also, under section 319 of the act, headed 'Dangerous driving causing death or serious injury', it states:
(1) A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
I note that that is the same penalty that is being introduced with the offence under this bill of recklessly exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving. Also under that section of the act it states:
(1A) A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes serious injury to another person is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).
In terms of section 319 of the Crimes Act, there is a distinction between causing death and causing a serious injury in terms of the maximum penalty.
As I said, this bill also introduces a two-year statutory minimum level of imprisonment if the offender commits the offence of intentionally exposing an emergency worker to risk to safety by driving and in so doing causes an injury to the emergency worker while they are on duty. The Greens have always opposed mandatory minimum sentences being included in the Sentencing Act because we believe that act already provides very comprehensive sentencing guidelines to the courts on what needs to be taken into account in sentencing an offender. The court already needs to take into account current sentencing practice, sentencing guidelines, the maximum sentence, the circumstances of the case and whether there are aggravating or mitigating circumstances.
One of those circumstances in section 10AA of the Sentencing Act is whether the person had a particular motivation to engage in that offence against a particular class of person. That class of person could, for example, be an emergency worker. The court already has, in my view, under sections 318 and 319 of the Crimes Act, under section 10AA of the Sentencing Act and under the sentencing guidelines, the capacity to deal with anybody who intentionally drives a vehicle into an emergency services vehicle and would take into account the factors surrounding that offence when sentencing.
The Greens also believe it is very important to maintain judicial discretion with regard to sentencing and not to put into the statute book minimum mandatory sentencing, which we have seen quite a number of times over the past few years. This is causing problems in the courts, in particular because I think it starts with the police having to choose between a range of similar offences, some of which have minimum mandatory sentences applied to them and some which do not. The police then have to choose between particular offences an offender is going to be charged with, and then when it gets to the courts there is a problem of offenders not pleading guilty if there is a minimum mandatory sentence attached.
I have raised these points many times before; it is also possible that they have been raised by those in the legal profession. I am sure everyone here is aware of unjust sentences being imposed in terms of minimum mandatory sentencing that would not be imposed if the judiciary was allowed full discretion.
During the debate on Mr O'Donohue's bill earlier in the year, the Crimes Amendment (Ramming of Police Vehicles) Bill 2017, I pointed out that for the particular offences for which a minimum mandatory sentence of two years was to be imposed by that bill the history of sentencing by the courts was already in that ball park so it was not even necessary.
The other issue I would like to raise is that, as concerning and serious as it is for any offender to intentionally ram an emergency service vehicle, it is also a very serious matter for a person to ram any vehicle in which there is another person. I bring forward the example of, say, a domestic or family violence case whereby a partner may intentionally drive their vehicle into the vehicle of their partner and cause either the death or serious injury of their partner. It could be the case in that particular example that children may be in the car as well.
Under the Crimes Act at the moment, as it stands, the court would be able to — and may — decide that that was a far more serious offence than a similar offence that may be being heard in the court on the same day or in the same week, whereby an offender drove a car into an emergency services vehicle, and in fact impose a higher sentence on the person who drove their vehicle into the vehicle of their partner, with children involved.
The point I am making here is that it should be up to the courts to take into account all the circumstances of a particular case, which they can already do under the Crimes Act 1958, and the existing offences under that act have been able to cover these offences for years. We do not need new offences. As I have said, the new offences attract the exact same maximum penalty but also include mandatory minimum sentences. We do not need these new offences because it is already an offence to drive a vehicle in such a way as to be reckless or negligent as to the safety of others. The activity, or the offence, that the government is trying to address here can already be addressed under the Crimes Act.
We have concerns with these types of bills that come forward from time to time and are now clogging up the statute books with unnecessary offences, for which there already are offences, with mandatory minimum sentencing, which does not work, which is having adverse effects on the courts and which is against the interests of justice, so the Greens will not be supporting this bill.
Mr O'Donohue circulated some amendments which go to removing some phrases from some of the offences with regard to, in particular, custodial officers and youth justice custodial officers and which also increase the maximum for the offences that I have been discussing. As I have pointed out, the offences the bill introduces are equal to existing offences under the Crimes Act, so we will not be supporting the proposed increases put forward in the amendments that Mr O'Donohue has circulated, nor will we be supporting the bill.
To read more in the committee stage, click here.