Sentencing Bill

Committee Stage

In committee.

Clause 1.

The Hon. P. MALINAUSKAS: I thank all members for their careful and constructive contributions to the bill. I rise to speak at clause 1 in response to various questions raised during the second reading stage of the bill. I will then adjourn to allow members to consider the response.

In response to the Hon. Andrew McLachlan, I thank him for his indication of general support of the bill. I note that the honourable member has asked whether intensive correction orders and community-based orders have been tried in other jurisdictions. Victoria enacted a scheme of intensive correction orders. It included intensive orders, home detention and community-based orders in one heading. It was repealed and replaced by a unified scheme of community correction orders.

The reason for this is not clear. It is too soon to assess the effectiveness of the new Victorian scheme. The government has decided that the correct approach is to split the community-based orders into three different kinds proposed in the bill. Intensive correction orders (ICOs) became available as a sentencing option in New South Wales by the enactment of the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (the amending act) on 1 October 2010. The leading case on the practice of these orders is R v Pogson. There was a review of the intensive correction order scheme by the New South Wales Sentencing Council. It reported in September 2016. The principal conclusion was that the scheme was underused and poorly targeted.

There is also a scheme of intensive correction orders in Queensland and Western Australia. There does not appear to be any published research on them. Intensive correction orders became available in the ACT in 2016. The honourable member asked about a letter sent by the Bar Association in March 2016. That was a response to a general and widespread public consultation on a draft Sentencing (First Principles) Bill 2016. That bill was only a small part of this bill and has, of course, been superseded and substantially amended by the bill before the council.

The honourable member asked about the government's response to a letter from the SA Bar Association on 16 March last year. This is a lengthy letter running to five pages of closely typed script and I will not take the time of the council unnecessarily by going through all of it. The essence of the letter is that judges have been doing a fine job at sentencing for centuries and the idea of setting down a primary factor of sentencing unnecessarily interferes with the freedom of judges to engage in instinctive synthesis and unbalances the sentencing process.

The government simply does not agree. The government has taken the policy position that sentencing should first and foremost be about the protection of the community. In their correspondence, the Bar Association has mentioned the Veen cases. These cases actually illustrate the need for the bill as drafted, and that community protection should be the primary consideration in sentencing. Veen was a young man who committed homicide, which would have been murder but for the partial defence of diminished responsibility leading to a verdict of manslaughter. There was persuasive evidence at the first sentencing hearing that he was a dangerous offender and was quite likely to kill again, and on that basis the sentencing judge gave him life imprisonment.

Veen successfully appealed to the High Court on the basis that he could not be given the maximum penalty of life imprisonment for reasons of preventative detention, but the experts in Veen were right. When released, Veen killed again in the same circumstances, again being found guilty of manslaughter by diminished responsibility. Again, he was sentenced to life imprisonment and again he appealed to the High Court. This time the life sentence stood. The High Court, when faced with the absolute proof that they were wrong the first time, found that community protection was indeed more important.

The Bar Association quotes from the second Veen case, without facing the inescapable fact that someone had to die to get a dangerous criminal imprisoned. What the Bar Association says is that:

A just and proportionate sentence is not one in which the concept of community protection has prevailed over all other sentencing considerations, unless there is a particular need for that in light of the unique circumstances of the case.

In their correspondence, the Bar Association is treating community protection as merely a concept. For the government, the very point of the criminal process is community protection. The circumstance of the Veen case was far from unique. There was an adequate prediction of future dangerousness of sexual homicide. The government disagrees with the Bar Association. The Bar Association also objects to the omission of such matters as the effect on the dependents of the offender. In doing so, the Bar Association shows a weak understanding of the law.

It is true that this factor is currently mentioned in the act, but it is not applied literally. The Full Court recently addressed the law on this in R v Constant 2016. The government agrees with what the Full Court said. This is a precis of what the court said:

Hardship to spouse, family and friends is the tragic but inevitable consequence to almost every conviction and penalty recorded in a criminal court. Again and again, sentencing judges point out that convicted persons should have thought about the likely consequences of what they were doing before they did it. I am, of course, addressing myself to the more serious crimes in which some form of premeditation, wilfulness or intent must be proved.

It seems to me that courts would often do less than their clear duty—especially where the element of retribution, deterrence or protection of society is the predominant consideration—if they allowed themselves to be much influenced by hardships that prison sentences, which from all other points of view were justified, would be likely to cause those near and dear to prisoners.

If the appropriate penalty is imprisonment, consequential hardship to dependents will occur and must be taken as contemplated and accepted by both commonwealth and state legislatures. More than that, it is accepted as appropriate by the community which in many instances marshals its resources to relieve such hardship where it can.

It has long been accepted that the common law imposes an exceptional circumstances test where hardship of dependents is put in mitigation of penalty. Hardship to families of dependents is to be considered in the context of purposes of punishment and in particular the overall purpose of the protection of the community and the promotion of community welfare through the administration of justice and enforcement of the criminal law.

In our view…sentencing courts to consider whether the community's interest in the imposition of the appropriate sentence, being a sentence formulated having regard to the purposes of punishment and for the promotion of the community welfare through the administration of justice and the enforcement of the criminal law would, if imposed, pursue those purposes at a cost to the defendant's family or dependents that is, in the community's interests, too high such that the sentence under consideration should be adjusted.

The government agrees that this states the correct principle and not just the bald statement that the effect on dependents is relevant. It is much more complicated than that. The government does not find the Bar Association's letter persuasive.

I now turn to the contribution of the Hon. Mr Parnell. I thank him for his indication of support for the bill. I note that the honourable member asked some questions about the 10 by 20 Reducing Reoffending Strategic Policy Panel Report. I am currently working with my colleague to finalise the 10 by 20 state government response and action plan. As you are aware, the 10 by 20 panel report outlined six strategies with 36 associated recommendations for the government to consider. In developing our plan for the next four years, there is a need to focus on actions that are realistic and will lead to change. Supporting sentencing and sentencing options to achieve better outcomes is under consideration as a response to the action plan.

All actions outlined in the response will be focused in evidence and best practice with the aim of addressing the reasons why people offend and to build sustainable pathways so that ex-offenders can return to the community and go on to live crime-free lives. The 10 by 20 government response and action plan cannot be released publicly prior to the 2017-18 state budget.

Once released, the action plan will detail how the government will address reoffending and its impacts across the criminal justice sector. I look forward to continuing to work together with my colleagues to address issues that directly affect our community, including reoffending. The funding consequences of this bill are a matter for budgets and associated financial announcements. What we are doing here is progressing the legislative regime. I note that there are a number of amendments from the government, opposition and crossbench. I look forward to consideration of these amendments during the committee stage.

Progress reported; committee to sit again.