Victoria in election mode as government seeks to shift sentencing away from the judges ... NSW's mandatory sentencing plans remain in parliamentary deadlock ... Sex offenders registration unworkable ... Liberty Victoria on the case ... Kevin Childs reports
Ho, ho, it's election time at Yarraside, and the bare-knuckles campaign is off to a flying start.
The flaccid Naphthaline government is rushing to secure our safety with some typical rights-reducing proposals.
Barristers, and others working overtime for nothing, have pinpointed the shortcomings and regressive qualities of the government's Lawn Order package.
The Sentencing Amendment (Emergency Workers) Bill 2014 introduces mandatory immediate imprisonment and mandatory minimum non-parole periods for some offences against emergency workers on duty - for intentionally or recklessly causing serious injury in circumstances of gross violence.
See: Liberty Victoria commentary
See: Sentencing Amendment (Emergency Workers) Bill 2014
This covers police, ambulance officers, fire brigades and country fire brigades, and emergency services workers. Sadly surf life-savers are not on the list, which was the case at one stage with a similar proposal in NSW.
Mandatory minimum non-parole periods for offences under the legislation range from two to five years. The legislation also imposes a minimum prison sentence of six months for otherwise intentionally or recklessly causing injury, s.18 Vic's Crimes Act.
The emergency workers sentencing Bill will:
• Prevent judicial officers from exercising leniency in cases that do not fit within one of the prescribed "special reasons" (such where an offender without a criminal history may act out of character and/or when drug affected, and is otherwise a law-abiding citizen in gainful employment, and a provider for a family);
• Provide a disincentive for offenders to plead guilty (and also provide an incentive for offenders to appeal). Liberty Vic says this would put further pressure on already stretched courts;
• Further crowd the full to overflowing jails; and
• Switch key decision making from the judiciary to the executive and thereby instil a system of personality driven decision making.
Mandatory and baseline sentencing is also part and parcel of the Crimes Amendment (Gross Violence Offences) Act 2013, the Sentencing Amendment (Baseline Sentences) Act 2014 and the Sentencing Amendment (Coward's Punch Manslaughter and Other Matters) Bill 2014.
The Victorian one punch measures set a mandatory minimum sentence of 10 years where the offender knew the victim was not expecting to be punched and died as a result of being struck.
Mandatory minimums are also proposed in manslaughter cases involving "gross violence".
Liberty says this legislation represents a radical transfer of criminal justice functions from the judiciary to the legislature.
Former NSW Director of Public Prosecutions Nicholas Cowdery QC has been vocal on the evils of mandatory sentencing in the issues in the context of NSW "one-punch" laws.
In NSW the government backed away from mandatory sentences for less serious offences. However, legislation for mandatory minimums for alcohol fuelled violence have not passed the Legislative Council. The Crimes (Amendment) Intoxication Bill is still sitting in orders of the day and not going anywhere.
Basically, the Legislative Council made some amendments, which the Legislative Assembly refused to pass and then the LC refused to pass the unamended Bill.
See: Crimes (Amendment) Intoxication Bill 2014
See: Legislative Council debate
See: Upper House vote jeapordises new NSW mandatory sentencing law
Liberty Vic makes a couple of points: There are other ways to ensure that sentencing standards reflect community values, such as guideline judgments and/or crown appeals. Also, when the public is fully informed of relevant sentencing facts, the research confirms that sentencing standards of judicial officers are not out of step with the community.
See: Public judgment on sentencing: Final results from the Tasmanian Jury Sentencing Study
The Victorian Court of Appeal has an important role in ensuring that sentencing practices meet community standards. It has found some sentences inadequate, and in Winch v The Queen lifted the tariff in cases of glassings.
There was also a significant effect as a result of increasing the sentence in a case of confrontational aggravated burglary in Hogarth v The Queen.
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Supervised contact with children still must be reported to the sex offenders register
The Sex Offenders Registration Amendment Bill 2014 also presents concerns.
See: Sex Offenders Registration Amendment Bill 2014
See: Liberty Victoria response
The Sex Offenders Registry would further move from being a database to help crime prevention to becoming a responsive form of data collection.
"The Registry becomes a vast 'warehouse' of information that may be used after a crime has been committed to help a prosecution, rather than providing a targeted and refined database of information that can be used to protect the community and prevent crimes from being committed in the first place."
The Victorian Law Reform Commission report on Sex Offenders Registration estimates that there will be 10,000 registrants by 2020.
In addition to other personal details that have to be reported by registrants, and then updated if changed, the legislation requires registrants to report any form of contact or oral or written communication with a child that has the "purpose of forming a personal relationship with the child", even in circumstances of supervised contact.
To comply, a registrant who may have had dinner at a friend's home and has spoken with his friend's child at the dinner table, with parents present, would need to report this to the register within a day.
Liberty wants judicial discretion as to whether offenders are placed on the register in the first place.
"The problem with mandatory registration as it stands is that offenders with very low risks of re-offending must be placed on the register."
The Bill also allows information to be passed from police to the community if a registrant may have contact with children.
"While appreciating the need for disclosure in some circumstances, there is no control in the Bill as to how this information can be disseminated further.
Liberty is concerned about the possibility of vigilante conduct and the public 'naming and shaming' of persons on the register, that may well be stigmatising and damage rehabilitation to persons who would otherwise be very unlikely to reoffend."
Astonishingly, an offender put on the registry for an offence of indecent assault against an adult, with no link to any child offending or acts of paedophilia, will be banned from child-related employment, forced to advise the register of any clubs or organisations with child-related activities or membership (this includes a library), and notify the registry of any contact with a child in day-to-day life (whether in public and supervised or not).
Liberty says this is unworkable and diminishes the value of the register. It gives police the power to breach registrants who may find it very difficult to comply with all the requirements, which is itself a serious criminal offence punishable by imprisonment.
There should be a right to review placement on the register (other than a judicial review which is a very narrow form of review in cases of jurisdictional error and in a costs jurisdiction).
The Bill only allows the Supreme Court to review people who are registered for life, after 15 years.
The Bill allows the Chief Commissioners to "suspend" someone from the register for up to 12 months, but it is difficult to see how this would happen.
Liberty calls for a proper means of merits review, specially for registrants who may be suitable for child-related employment, where an offence had nothing to do with children.
"There should be merits review of placement on the register, possibly after two to three years or if there are new facts and/or circumstances. That would help ensure that the register is comprised of people who do constitute a real risk to the sexual safety of the community."
This is all about politics and pre-election Lawn Order grandstanding and has little to do with ensuring criminal justice functions effectively.
See: Liberty Victoria's statement
See: Vic bar's statement
See: ABA's statement