Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill
24/09/2014
The Hon. K.L. VINCENT: I will speak just briefly today on behalf of Dignity for Disability on this particular bill to indicate that we cannot support the second reading of it, but I would like to say thank you to Will Evans from the Attorney-General’s office for arranging the briefing that my office received on this particular bill. As with other bills that seek to compel the courts or judges to sentence in a certain way, I oppose mandatory sentencing. We are again consistent in this belief.
I have concerns with legislation that seems to be only a knee-jerk response to community expectation rather than sound research and support from legal bodies such as the Law Society. Instead, in this situation, this bill is not based on interstate or overseas evidence or reform that would suggest that we will be able to deter people from violent offending, nor that they will be rehabilitated by spending 20 per cent (or one fifth) of their non-parole period in custody.
As far as I am aware, there is no evidence to suggest that this will reduce recidivism or help people to rehabilitate. This seems to be a random number picked out of the air, and we need to be very careful about basing our legislation on such evidence. Dignity for Disability is concerned as to how this bill will impact on, say, a female offender who responds violently to a person perpetrating domestic violence against them, just as one example.
Dignity for Disability is further concerned as to how this measure may impact on offenders or alleged offenders with an intellectual disability, who face enough challenges in the justice system as it is. I have mentioned those challenges multiple times in this place so I will not go into them at this time. As has been mentioned previously, we are also very concerned as to how this legislation might affect members of Indigenous and Aboriginal communities.
We have seen this knee-jerk reaction just recently with the government introducing Koda’s law, as it was colloquially known, a bill seeking to protect one particular police dog in a way in which police dogs were already covered by existing law under the Animal Welfare Act. We are again very cautious about this knee-jerk reaction. We certainly appreciate that there is a certain community expectation in that area, but we believe that the way to meet that expectation is through sound consultation and proven research, not through a knee-jerk reaction such as this, so I will not support the bill at this time.
The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers): I thank honourable members for their second reading contributions, and I just want to make a few comments before proceeding to the committee stage. I have received some advice in relation to information asked for by the Hon. Kelly Vincent during the briefing session.
I am advised that from 2009 to 2012 there were 24 offenders who received a head sentence of over two years that was fully suspended for the relevant offences of manslaughter and cause serious harm. We were able to assess sentencing remarks for 21 of those individuals. The gender breakdown of offenders was 16 males and five females. Of these, two were convicted of manslaughter, both of whom were women. In both cases, sentencing remarks indicated that domestic violence was a consideration in the sentencing.
It was of major concern that women who are victims of domestic violence could potentially be affected by the reform; however, it must be noted that the judge retains the discretion to determine the length of the sentence and the parole period, and that the limitation of fully suspending a sentence of imprisonment will only be triggered if a sentence of imprisonment is two years or more. I imagine that in those cases, where judges saw fit, given the circumstances, the head sentence given would be less than two years.
If the judge elects to impose a sentence of two years or more, the judge then retains the discretion to set an appropriate non-parole period. The judge then also retains discretion to determine whether good reasons exist to suspend the sentence of imprisonment. If the judge finds good reason to suspend the sentence of imprisonment, the offender is then required to serve 20 per cent of the parole period in prison.
Further, of the individuals, four were Indigenous and 17 were non-Indigenous. Of those offenders, one Indigenous person was convicted of manslaughter and one non-Indigenous person was convicted of manslaughter. We will attempt to deal with any other issues during the committee stage.
In relation to some of the concerns raised by the Hon. Andrew McLachlan as well as the Hon. Mark Parnell, who spoke about the Law Society’s claim that this reform represents mandatory sentencing, the government wants it put on record that this bill does not implement a policy of mandatory sentencing. That is quite incorrect. The court retains discretion in sentencing. This reform will result in some offenders serving time who might otherwise have got out of prison and into our community on a fully suspended sentence. These are perpetrators of violent offences; these are the persons we want to spend, and believe should spend, some time in prison. With those concluding remarks, I look forward this being dealt with expeditiously through the committee stage.
Bill read a second time.
Committee Stage
In committee.
Clause 1.
The Hon. K.L. VINCENT: I have just a few questions. Can the minister confirm where that particular 20 per cent gaol term came from, and whether the minister is aware of any research, interstate or internationally, that indicates that that particular gaol period is effective in preventing reoffending?
The Hon. G.E. GAGO: I thank the honourable member for her question. There was no research conducted; it would be hard to imagine what sort of research would be appropriate. It was a judgement call of what was considered to be fair and reasonable and what would provide a reasonable balance. One-fifth was considered to be a fair and reasonable place to set that limit.
The Hon. K.L. VINCENT: When the minister says it is a judgement call, with whom did the government collaborate on that judgement call?
The Hon. G.E. GAGO: I am advised that it is a decision of the Attorney-General, who obviously has input from the Attorney-General’s Department, a department full of legal officers, including senior legal officers, who are very much up-to-date with contemporary industry standards and provisions. It was input from that department.
The Hon. K.L. VINCENT: I am sorry, I am just trying to get this straight. The government received feedback from senior legal officers within the department and that particular 20 per cent figure was based on their personal expertise; is that right?
The Hon. G.E. GAGO: Yes. As I outlined, it was really senior legal officers working with the Attorney-General.
The Hon. K.L. VINCENT: The minister referred in her previous answer to the 20 per cent being something like an industry standard. I am a little confused. I personally do not see prisons as an industry. Can the minister elaborate on what she means by ‘industry standards’?
The Hon. G.E. GAGO: I was referring to senior legal officers who obviously have a great deal of expertise in working in the area of legal reform and keep abreast of things like recent research on a whole range of matters, including things like sentencing.
The Hon. K.L. VINCENT: I am sorry, I am a bit confused that the minister is saying that this was based on recent research, yet previously she was unable to provide any direction as to what research this particular decision was based on. Since there is no existing equivalent standard used elsewhere, according to the minister’s previous answer, how can this be a standard that we are using here?
The Hon. G.E. GAGO: No, that is not what I said. The honourable member has misunderstood. The honourable member asked me to explain what I meant by ‘industry’ and I explained that it is senior people working in the area of legal reform who keep of breast of relevant matters, such as recent research in a whole range of areas, including sentencing. I indicated in a previous answer that there was no specific research involved in establishing a 20 per cent specific standard; I have already put that clearly on the record and indicated that these other matters were of a general nature.
The Hon. K.L. VINCENT: So, did the government consult with organisations such as OARS or community transitions organisations, the Law Society? There were no community organisations involved in this process, is that correct, but simply legal services within the department?
The Hon. G.E. GAGO: I take it that the honourable member is still referring to consultation in respect of the 20 per cent?
The Hon. K.L. VINCENT: Yes.
The Hon. G.E. GAGO: I have already put on the record quite clearly that it was a matter of judgment of the Attorney-General and his department. There was no consultation outside that directly.
The Hon. K.L. VINCENT: I am trying to ascertain where this information came from. I understand that it came from legal advisers within the department, but surely they must be basing it on something and the minister does not seem to have been able to provide me with exactly where that has come from.
The Hon. G.E. GAGO: I have answered the question quite clearly. I know the honourable member is frustrated that there is not a level of detail beyond this, but I have indicated quite clearly that the 20 per cent was based on a judgement of the Attorney-General, advised by his senior officers. I cannot be more clear than that. The honourable member might not like that, but that is how it was done and it was believed that, through their judgment, it was a fair and reasonable figure to arrive at.
The Hon. K.L. VINCENT: I will try one more time. I find it difficult to believe that with this judgement, albeit coming from, I am sure, very knowledgeable people, no information was provided to the department as to how those officers had reached that judgement. I find that extraordinary.
