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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-04-04 Daily Xml
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CRIMINAL LAW (SENTENCING) (MANDATORY IMPRISONMENT OF CHILD SEX OFFENDERS) AMENDMENT BILL

Introduction and First Reading

The Hon. A. BRESSINGTON (19:54): Obtained leave and introduced a bill for an act to amend the Criminal Law (Sentencing) Act 1988. Read a first time.

Second Reading

The Hon. A. BRESSINGTON (19:55): I move:

That this bill be now read a second time.

This is a bill to introduce mandatory minimum sentencing for child sex offenders. I did introduce a similar bill in 2010, but on reflection and with input from the Law Society I have made some amendments to this legislation. This bill is therefore largely the same as that detailed in my previous introductory speech except for the following amendments. In addition to section 63, 'Production or dissemination of child pornography', the bill now includes section 63A, 'Possession of child pornography' in the list of offences to which minimum sentencing will apply. Mandatory imprisonment will only apply if the material is of a child under or apparently under the age of 14. It will attract a minimum sentence for the first offence of one year and eight months or two years and four months if aggravated, and for subsequent offences two years and four months or three years and four months if aggravated.

The bill no longer provides the court with the discretion conferred under section 18A of the Criminal Law (Sentencing) Act, which allows the court to impose one penalty across a number of offences. This will be now cumulative sentences for a number of offences. The bill now makes clear that mandatory imprisonment will not apply to a person under the age of 18, and this is in response to the Law Society's submission which I solicited. The bill also rewords proposed section 20E(1)—formerly section 20D(1)—to address the Law Society's concern that section 20D(1) refers to a prescribed sexual offence with which a person is charged as the offence which engages the mandatory sentence of imprisonment. This will in many cases not be the offence that is the subject of a sentence. An offender cannot be sentenced for an offence for which they have not been found guilty.

The reasoning for this legislation has not changed since the last time I introduced it. People in the community have an expectation that people who prey on our children and do them harm and who have intention to distribute images of young children have no place in our community and have no place in our society. As I said in my last speech, people who are child predators are almost impossible to rehabilitate, and there are numerous studies to show that.

I think that the community has an expectation that, when someone has been convicted of an offence against children, they will be removed so they actually pose no further threat to either the children they have offended against or children who would be their likely targets in the future. I would like to remind the house of one case last year when a demonstration was held and media was done on one Mark Trevor Marshall.

Mark Trevor Marshall was a convicted paedophile and he had, indeed, a black history. He had a long history of sex offending. It was detailed in the 2009 judgement of the Hon. Justice Nyland in R v Marshall. On 15 June 1987, Mr Marshall was sentenced for 13 counts of indecent assault, all of which involved children, to a three-month suspended sentence. In just over two years Mr Marshall was back before the courts for seven further counts of indecent assault against girls between the ages of five and seven, for which he received a 16-month nonparole period on 4 April 1990.

He was again convicted of three counts of indecent assault against a girl aged 11 and a boy aged six in 1992, and again in 1996 to one count of indecent assault and one charge of procuring a child to expose her body, for which he received nonparole periods of four years. If this bill were to pass, Mr Marshall would have been convicted for a minimum of 10 years in 1987, preventing the subsequent offence and suspension from ever occurring. While this will understandably come at a great cost, if it saves just one child from being molested or raped, then it is money well spent.

I have no compassion for child sex offenders and, while I have no desire for them to be harmed, neither do I wish to see them set free to reoffend. I believe the community supports that view. It was interesting that Mr Marshall was sentenced then to indefinite detention because, as Justice Nyland put it, he was unable or unwilling to control his sexual urges towards children. Just late last year Justice Nyland lifted that detention order, which would have seen Mark Trevor Marshall released and free to walk the streets.

We know for a fact that Mr Marshall was consorting with other paedophiles in prison. One particular caller on FIVEaa, who had just come out of prison, raised the point that, while he was in prison, in the yard you would hear child sex offenders fantasising about what they were going to do with children when they got out of prison. They would share stories, and that is how they got their jollies. This person believed that every child sex offender should be incarcerated for the rest of their life because no rehabilitation was happening and they saw absolutely nothing wrong with the offences they had committed against children.

Mark Trevor Marshall was lined up—Justice Nyland lifted the indefinite detention order—and he was going to be free to walk. We had many people contact us who had been his victims—both the children and their families—and they were panicking. Some of the children are now as old as 20 or 25 years and have children of their own, and they were not going to allow their children out to play or allow them out without parental supervision anywhere because of the fear that he would go back to his own stomping ground out north.

I wrote to Mr Pallaras, the public prosecutor, and asked him to consider appealing against Justice Nyland's decision to suspend the indefinite detention order. I thought that, given that Mr Pallaras has the reputation of Elliott Ness and has no tolerance for any of this kind of behaviour, we would at least be able to get together and discuss the possibility of his opposing or appealing Justice Nyland's decision. But, instead, I got this letter from him:

I refer to your letter dated 29 September 2011 in which you seek clarification about the indeterminate detention of Mr Marshall.

When Her Honour granted this application for Mr Marshall to be released on very strict conditions of licence in July 2011 she did so on the advice of experts from Forensic Mental Health, Correctional Services Rehabilitation Services, Owenia House and Mr Marshall's treating psychiatrist. Based on that same advice this Office did not oppose the order being made.

Mr Marshall's treating psychiatrist was of the view that if steps were not made to reintroduce Mr Marshall into the community that task would become increasingly difficult. Given his relatively young age there is a clear need to try and rehabilitate him if possible and if the community can be protected should he be released. At the time Her Honour Justice Nyland made the order for release Mr Marshall had already been in custody for nine years for his offending; some seven years longer than his head sentence.

During the traditional period which had been set in place to carefully reintroduce Mr Marshall into the community the authorities became concerned about his ability to manage his transition.

Poor Mr Marshall!

As a consequence this Office applied to the Court for an interim stay of the order for release to enable Mr Marshall to be re-evaluated by the experts. Once this re-evaluation has occurred the Court will then consider whether to convert the interim stay to a permanent stay or to proceed with the licence release. I share your concerns in relation to the protection of the community. However if it possible to allow Mr Marshall—

This is after five or six attempts to re-integrate him into the community, and to let him out of gaol to roam free, where he has offended time and time again—

to continue with his rehabilitation in the community while ensuring to the best of our ability that children are protected, then this would seem consistent with the values we hold dear. I would hope that imprisonment without release remains a very exceptional sentence in our society. Having said that I agree with you that there are times when this is the only option available.

Yours Sincerely

[Signed]

Stephen Pallaras QC

Director of Public Prosecutions

I find it absolutely unbelievable that Mr Pallaras would take the view that the rights of a repeat paedophile to reintegrate into the community is more important than protecting the children that he would most probably have offended against had he been released.

Mr Pallaras said that children would be protected to the best of their ability. Let me just make this point to members here: he was not going to be on home detention; he was not going to be wearing a bracelet; he was going to be released into the community, and we all know that the level of supervision he would require would be 24/7, and I doubt very seriously that Corrections, or even the mental health service, has the staff to be able to provide him with 24/7 supervision. However, his right to be reintegrated into the community and possibly rehabilitated outweigh the risk at which we were placing these children should he be released.

Ironically, just two weeks before he was due to be released, Mark Trevor Marshall was found with child pornography in his cell, and Justice Nyland then revoked his release. But, if that had not happened, he would have been out and, within a couple of weeks—which is in line with his pattern of behaviour—he would have already sexually assaulted at least three more children, because there was no rehabilitation. There was no change of behaviour. Mr Marshall never admitted that he saw any thing wrong with what he had done to children; he loves children. He loves children, and that is his way of expressing his love.

I have to admit that people with this kind of attitude must have had a pretty screwed up childhood. People do not just turn out like this; they themselves have been traumatised and, according to statistics, it is most likely that they have been sexually abused. But, there comes a point when all of that needs to be set aside and, if they are unable to be rehabilitated, then they must be taken out of circulation.

We are not satisfied with the sentence that people are getting from the courts in relation to this. Mr Fox, who is a convicted sex offender, should have gone to prison at the end of last year. What did he get? He got a slap on the wrist because, as the magistrate put it, he was depressed and prison would not do his mental health any good. Well who cares, actually; who cares? There is a list of child sex offenders who have had similar compensations made, they have had suspended sentences and have, basically, been sent out into the community.

On 21 January 2007, Mr Simon Boxall, a former youth leader in a small Baptist church, was sentenced to a 12 month nonparole period after pleading guilty to two counts of inciting or procuring the commission of an indecent act, one count of indecent assault and one count of gross indecency against a young girl aged only six years old. Despite describing his offending as a gross breach of trust, the judge suspended Mr Boxall's sentence on the condition that he enter into a $500 good behaviour bond, reportedly due to his rehabilitation prospects.

The mother of the victim was later quoted in The Advertiser as saying, 'It's too light. He's gotten away with it', and adding, 'It's like my child's innocence was only worth a $500 bond but not payable unless he stuffs up again.' She was also quoted as saying that her daughter 'has panic attacks, she wets the bed, she picks at herself, but hopefully the counselling starts to help.'

Another example is that of David Mills, also known as Mr Bubbles after his character when performing his busking act, who was sentenced in 2001 to 10 months imprisonment for the indecent assault of a nine year old girl. Again, the sentenced was suspended on the condition that he be of good behaviour, do community service and participate in a rehabilitation program. Mr Mills absconded to the Northern Territory, where he again performed his busking act until he was extradited in 2005 to serve his sentence.

Between 2004 and 2005, Neil Thomas Spurr repeatedly abused two young boys after befriending their parents, resulting in his conviction for eight counts of indecent assault. Despite having prior convictions for similar offences in 1991, for which he received a suspended sentence on the condition that he enter into a bond, showing no contrition and Justice White stating that he could not extend him any leniency, Mr Spurr was sentenced to a head sentence of six years with a nonparole period of only three years.

Mark Marshall—not the same person as Mark Trevor Marshall—who is presently indefinitely incarcerated under section 23 of the Criminal Law Consolidation Act, is another. In 1996, he received a three month suspended sentence for 13 counts of indecent assault. This was the start of over a decade of offending by Mr Marshall, which he promptly resumed after his sentence.

We cannot be here in this council debating legislation for serious and organised crime and other offences under that act and believe that bikies are more of a threat to our community than paedophiles are, than child sex offenders are. We cannot possibly not draw a straight line and say that the harm they do to our future generations is not as great as the harm that bikies are doing to our society right now.

I am pleading with members of this council and the government to understand that, if we are changing legislation on every front to deal with the changing times and trends in our society, we now know how prolific child sex offending is. We now know that it knows no boundaries across class, race or career, and that there is the potential for us to be sitting amongst a child sex offender right now. If we cannot change these laws to send the message that we take this seriously and that we want action taken out of the hands of the courts—because the community is screaming out to feel safe and secure. Children are no longer free to roam the streets and play in the parks because parents do not feel safe enough to allow that to happen.

So, if we are dealing with serious and organised crime, I would put it that, as this gentleman said from prison, the paedophiles are indeed serious and organised because they plot and plan while they are in prison for the next offence they are going to commit when they get out, and they talk about it prolifically in there.

I seek leave to have a statistical table inserted in Hansard of what the crime would be and what the head sentences would be.

Leave granted.

Section of the Criminal Law Consolidation Act 1953 Offence Minimum Penalty
48 Rape 10 years
48A Compelled sexual manipulation 5 years
49 Unlawful sexual intercourse 3 years and 4 months
50 Persistent sexual exploitation of a child 10 years
56 Indecent assault 10 years
58 Acts of gross indecency 1 year for first offence and 1 year and 8 months for a subsequent offence
59 Abduction of a male or female person 6 years
60 Procuring sexual intercourse 3 years and 4 months
63 Production or dissemination of child pornography 4 years
63A Possession of child pornography 1 year and 8 months or 2 years and 4 months if aggravated for a first offence, and 2 years and 4 months or 3 years and 4 months if aggravated for subsequent offences
63B Procuring a child to commit an indecent act 4 years
66(1) Compelling a child to provide commercial sexual services 10 years
66(2) Unduly influencing a child to provide commercial sexual services 10 years
67 Deceptive recruiting for commercial sexual services 4 years
68(1) Use of a child in commercial sexual services 10 years
68(2) Asking a child to commit commercial sexual services 3 years
68(3) Profiting from a child's commercial sexual services 1 year and 8 months
72 Incest 3 years and 4 months


The Hon. A. BRESSINGTON: I will talk about a couple of these. Section 48 of the Criminal Law Consolidation Act 1953—Rape, minimum penalty 10 years. That is rape of a child, and a child is anybody under the age of 13. Section 48A—Compelled sexual manipulation, five years. Section 49—Unlawful sexual intercourse, three years and four months. Section 50—Persistent sexual exploitation of a child, 10 years. Section 56—Indecent assault, 10 years.

I was going to have this legislation so that it could be tailored down to the most serious offence—plea bargaining, if you like—and the minimum must be administered by the courts. However, I have changed my mind. I have decided that if they have seven different counts for serious sex offending against children, then that should be a cumulative time.

The Hon. S.G. Wade: That's what they're doing with the serious and organised crime bill.

The Hon. A. BRESSINGTON: Yes, exactly. The Hon. Stephen Wade makes the point that that is what the government is doing in the serious and organised crime bill (cumulative sentences), so does that not equate to the same for the safety of our children? I say it again: those in the fields of science, medicine, psychology and psychiatry say that child sex offenders are the most difficult offenders to rehabilitate, and no-one can ever guarantee that they are rehabilitated. We do not have any mechanism in place to be able to track them, to be able to know when they are out if they are offending again.

Just to show you how sly these people are, Mark Trevor Marshall was released from gaol and part of his parole requirements were that he said he wanted to attend a TAFE course. He was granted that and the corrections supervisor would drop him off at TAFE at 9 o'clock in the morning and pick him up at 3 o'clock in the afternoon. He just happened to pick a TAFE that was within walking distance of the children he had been terrorising previously. He used to catch a bus to Saint Mary Magdalene's school from the Elizabeth TAFE and he would go into the school, take the little girl (who was then five) out of the school to an empty allotment over the road from the school into the bushes and sexually assault her, and then he would return her to school.

He would go back to TAFE in time for the officer to pick him up. What he was telling his tutor at the time was that he was in the library studying. It was only a 10 minute bus ride to the school that he was going to and a 10 minute ride back. He did that consistently for months to this little girl. Then, when he was starting to feel quite comfortable, he sexually abused her little brother as well. This cannot be allowed to happen anymore and, if people do this and they get caught, then their punishment should befit their crime. That is all I have to say on this. I commend this bill to the house. I ask the government to please consider this. Marry it up with serious and organised crime.

Debate adjourned on motion of Hon. S.G. Wade.

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