Justice Legislation Amendment (Parole Reform and Other Matters) Bill 2016

Ms PENNICUIK (Southern Metropolitan) — I rise today to speak on the Justice Legislation Amendment (Parole Reform and Other Matters) Bill 2016. The bill makes two types of amendments for the presumption against parole. Firstly, it amends the Corrections Act 1986 to provide for a presumption against parole for prisoners who are serving a prison sentence with a non-parole period for an offence of murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer.

The bill also amends the Corrections Act 1986 to provide for a presumption against parole for prisoners who are serving a prison sentence with a non-parole period for murder, conspiracy to commit murder, accessory to murder or manslaughter in circumstances where a deceased victim's body or remains were not located at the time of sentencing the prisoner for the offence. It also amends the Sentencing Act 1991 so that when a court is sentencing an offender for murder, conspiracy to murder, accessory to murder or manslaughter in circumstances where a deceased victim's body or remains have not been located at the time of sentencing, the court can take into account whether or not the offender has cooperated in the investigation of the offence to identify the location or the last known location of the body or the remains of the deceased victim and the place where the body or the remains of the victim may be found.

With regard to the last amendment to the Sentencing Act 1991, that is basically codifying what is already in the common law, and I would suggest that any sentencing judge would take this into account when imposing a sentence on an offender for murder. This would already be a very apposite consideration of a court — whether or not the body of a deceased or the remains of a deceased have been found and whether or not the convicted offender is cooperating with police in the locating of that body or remains. That is one section of the bill that the Greens do not necessarily oppose, but we are making the point that we feel the court would already take that into consideration when imposing a sentence for such a serious crime and for such non-cooperation.

The Greens will not be supporting this bill for a number of reasons, which I will outline. They are reasons which should have precluded the government from bringing this bill into the Parliament in the first place. We will make very clear why this bill is very problematic. It is also problematic that this bill has been deemed to be an urgent bill when it is in fact not an urgent bill. An urgent bill should be, by definition, one that needs to immediately rectify a problem in the law. We have had such bills in the past where in fact mistakes have been made in the law and actions have followed from those mistakes that had to be immediately remedied, but this is not such a bill.

Before going to the details of the bill and the reasons why the Greens will not be able to support it, I understand that three people convicted of murdering a police officer are currently in custody in Victoria, and they have all received life sentences with non-parole periods. Of course to the community and in particular to the families and friends of those police officers it is an ongoing and unbearable pain. The Greens of course understand that it is a very serious matter to murder a police officer or, as this bill says, to be reckless as to whether a person is a police officer. That is a very serious matter.

We also of course understand, in terms of a person who has been convicted of murdering another person and has wilfully not cooperated in the disclosure of the location of the body of the deceased person or the remains of the deceased person, that again that is a very serious matter. I fully understand and the Greens fully understand the heartache and the ongoing pain that that causes the family and friends of those victims. Of course any person who has been a victim of crime, or their family or their friends, does suffer ongoing pain and ongoing impacts on their life, depending on the circumstances of the crime that was committed against them and the circumstances around the effects and impacts on their families. We fully understand those matters.

Mr O'Donohue mentioned some particular cases and some particular persons. I will not go to that; I will not be going to naming or mentioning particular persons or cases in my contribution today. I will only say that, like many people in the community, and perhaps like other people in this Parliament, because we do not all know each other's circumstances, I know very well some people who in the course of their life have had family members' lives taken and have had serious crimes committed against them, so I fully understand the pain and suffering that that causes.

What we have before us here today is some legislation which I think sets precedents that we should not be setting in the law and in fact that are unnecessary. It is unnecessary for a number of reasons. Included in this bill's title is the phrase 'parole reform and other matters'. The previous Parliament spent a lot of time considering parole and parole reform. We had the Ogloff review, we had the Callinan review and we had several pieces of legislation that were designed to reform the parole system as a result of serious crimes — murders — committed by people who were on parole, and the community indeed was very concerned, as were the Greens.

Members who were in the Parliament at the time, and Mr O'Donohue, who was the Minister for Corrections at the time and brought in all that legislation, would understand that at that time I spent an awful lot of time going through those reports and understanding what they meant, and the Greens fully supported the changes to the parole system. In fact one of the particular reforms that was put in place by the Callinan review was the two-tiered system with respect to serious offenders coming up for parole, and of course one of the key reforms was that a prisoner has to apply for parole, whereas previously the parole board would consider a person whose non-parole period had expired without them necessarily having to apply for parole. But now we have a two-tiered system, and in particular for serious offenders there is a double process required for any parole to be granted in that case. We fully support that. In fact we had advocated for that prior to the Callinan review. We argued that one of the problems with the parole system was that there was not a differentiation between those two categories of prisoners.

The Callinan review also of course raised the issue of a lot of systemic and administrative problems in terms of the parole board having too much to do and not enough resources and time to deal with it and also of it not necessarily having full information from the Secretary of the Department of Justice and Regulation and from the police and from Corrections Victoria as to the status of those particular prisoners.

The point I am making here is that the parole system has been significantly toughened up, particularly in regard to the types of prisoners we are referring to today. I feel that in light of those the Parliament and the community should trust the Adult Parole Board of Victoria to deal with prisoners who apply for parole before it, including the categories of prisoners covered by this particular piece of legislation.

Throughout that debate and in the community conversation about it there has been, I believe, a significant amount of undermining of the purpose of parole. The purpose of parole is very important. It applies to any prisoner who has been sentenced by a court to a particular sentence that includes a non-parole period. For example, if someone is sentenced to 20 years for an offence with a 15-year non-parole period, it means they have to serve 15 years. They may not be released on parole for the next five years, so they may serve 20 years, but they will be released after 20 years. The purpose of parole is to have part of the sentence of the prisoner served in the community on parole under the supervision of corrections staff. The adult parole board can of course attach conditions to parole, including very strict supervisory conditions as well as other conditions that a parolee must meet. The idea of that is that prisoners are not released directly into the community without any supervision and without any support in terms of accommodation, education and rehabilitative programs.

That is not to say that everything is perfect in that regard. I have raised in this place many times the need to improve the resources that are put in place for rehabilitation both within the prison system, starting immediately that prisoners enter the prison system, and also more resources to support prisoners who are on parole in finding accommodation and employment so that they do not become recidivist offenders, committing other offences and being a danger to the community and coming back into the prison system. We need to focus more attention on rehabilitation and justice through investment in the community to prevent crime and to assist those who have been involved in the criminal justice system to not go back into it. That is how we will improve community safety.

Turning to the provisions of this bill, the first amendment to the Corrections Act provides for a presumption against parole for prisoners who are serving a prison sentence with a non-parole period for an offence of murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer. As I said, we were advised in the briefing that there are three people currently in custody in Victoria convicted of murdering a police officer, and all have life sentences and non-parole periods.

The problem raised by this particular provision is that it is making a certain category of offender separate from the rest of the prison population and a certain category of victim separate from the rest of the community. It is saying that if a person murders a police officer they would have a presumption against parole, and that would be different from the sentence for a person who murdered any other person. This is a difficult area for any government to go to — to categorise persons based on occupation — notwithstanding that, as I said, the murder of a police officer is a very serious matter. But a murder of anyone is a very serious matter; a murder of a child is a very serious matter.

The problem that is being put forward by this bill is that it is categorising victims and it is categorising offenders and taking away the discretion of the courts and the adult parole board to deal with the particular circumstances of every case. A type of mandatory provision is being inserted into the Corrections Act, and the Greens have always spoken against that. We believe that the judiciary and the adult parole board should be able to deal with the particular circumstances put in front of them. They have the expertise, the experience and all the information in front of them that we, as members of Parliament, do not have with regard to each of the cases.

It may be that none of the three people in Victoria who have been convicted of murdering police officers, all of whom have life sentences, applies for parole. It may be that even if they do apply for parole the adult parole board, which has as its main and paramount consideration the safety of the community, would not grant parole to those persons. In that regard we feel that this is an unnecessary provision. It also, as I said, categorises certain types of victims over and above other types of victims, rather than looking at the circumstances of each offence and each crime that the court and the adult parole board could take into account.

Another matter to raise is that the presumption against parole will apply regardless of whether the prisoner was sentenced for the murder before, on or after the commencement of clause 3. Basically it makes this amendment retrospective.

Now, Mr Melhem said he was quite relaxed with that. Well, I have to say that I am very unrelaxed with this type of retrospective provision, and in the very short amount of time we had available we consulted the Law Institute of Victoria and Liberty Victoria about this particular bill. They make the point that a system which permits the Parliament to retrospectively increase a criminal sentence or sanction is a dangerous and fundamental attack on the law.

Mr O'Donohue — How is it retrospective?

Ms PENNICUIK — It says it is retrospective.

Mr O'Donohue — How?

Ms PENNICUIK — Because it applies whether the prisoner was sentenced for the murder before, on or after the commencement of the section.

Mr O'Donohue — The High Court said — —

Ms PENNICUIK — Thank you, Mr O'Donohue. You have had your chance.

Mr O'Donohue — Well, get your facts right.

Ms PENNICUIK — So that is another problem with this provision.

The main provision of the bill, which is in regard to the so-called no body, no parole provision, amends the Corrections Act to provide for a presumption against parole for prisoners who are serving a prison sentence with a non-parole period for murder, conspiracy to commit murder, accessory to murder and manslaughter in circumstances where a deceased victim's body or remains were not located at the time of sentencing the prisoner for the offence. The Greens are not supportive of this provision either. Notwithstanding that, as I previously mentioned, and as I mentioned in my contribution with regard to Mr O'Donohue's private members bill that he brought into this place earlier this year, we do not believe this particular provision will actually achieves its aims.

It is stated that this would assist victims, because if the offender was threatened with no parole they would be more likely to reveal the location of the body or the person's remains, and I am not sure that that is in fact the case. It may be that such an offender will still not do that, and there may be reasons for that. First of all, the offender, even though they have been convicted, may in fact be innocent of the crime. So that is one reason. They may also not be willing to reveal the location. In fact the provision still may not result in the desired outcome of the discovery of the location. Those types of persons may in fact send police and others on wild goose chases, as I mentioned before, and maintain that a particular person's body or remains may be in a particular place when they are not. This would only, I think, increase grief and suffering for the families of those persons. It may be that the person does not actually remember where they are after the passage of time. There could be any number of reasons, but the main point of it is that I do not think this particular provision will actually achieve the aim that it is aiming to achieve.

In the very short briefing that the government was able to provide us on this bill we were advised that there are seven prisoners currently in custody in Victoria to whom this provision would apply and that none of them have life sentences, which means that if this provision comes into place and the prisoners are denied parole because they have not disclosed for whatever reason the whereabouts of the body or the remains of the deceased person, they will not be released on parole but they will be released, because none of them have had life sentences imposed. So at some stage they will be released, and they will be released not on parole but just at the end of their sentence when the sentence imposed by the court expires. That means they will be released with no supervision by the department of corrections and with no supports from the department of corrections with regard to accommodation et cetera. That is not a desired outcome, and it may be that for all seven of those prisoners that is the case.

I note that the government's bill is slightly different from the bill put forward by Mr O'Donohue in that it includes the offence of manslaughter, which I advise applies to one person who is in custody at the moment. It applies to conspiracy to murder and to accessory after the fact. It also has some qualifying provisions with regard to the ability of the prisoner to actually provide the information, but I still maintain that in terms of the principle, this is unnecessary. I am sure the adult parole board would already take this into account in determining whether or not a person is a risk to community safety and any other reasons for why they would or should be eligible for parole. But I think it is an important point to make that the actual prisoners who are in custody at the moment that this applies to will in fact all be released at the end of their sentence, whether or not they have been granted parole under the provisions of this bill, or even without the provisions of this bill, and whether or not the parole board has seen fit on the evidence presented to them to release them on parole.

It is concerning that this bill has been brought into the Parliament. It is unnecessary. The Corrections Act as it stands at the moment, particularly in terms of significant reforms brought in by the previous government and supported by all parties in this place, reflects that the only qualifier we had for the changes to the parole system that were brought in by the previous government were that we did really feel that serious violent offenders and those convicted of very serious offences do have a different process available to them to that available to the less serious offenders in the parole system, and we feel that the system of breaches of parole should reflect that.

That means that serious breaches of parole by serious offenders should be treated differently from minor breaches of parole by less serious offenders, because we have seen people who are less serious offenders being re-incarcerated for minor breaches of parole. In fact in terms of community safety it would be better if serious offenders were on parole and under the supervision of the corrections staff and police and reporting to police. It would advance community safety by reintegrating those people into the community rather than re-incarcerating them.

One point that I would like to make is that we do have the Serious Sex Offenders (Detention and Supervision) Act 2009 for the supervision and detention of serious sex offenders. In the many times that we have had various versions of that act come to the Parliament I have made the point to both governments that we need to perhaps look at how to deal with some of those serious violent defenders who may not be sex offenders in a way similar to how serious sex offenders are dealt with. That would be a preferable way to deal with these offenders than the way this bill is proposing to deal with them.

There are many reasons why this bill is problematic, even though we fully understand the serious matters it deals with and the serious impacts and ramifications they have for people in the community who are caught up with these crimes.