Thursday, 6 February 2020

Bills

Crimes Amendment (Manslaughter and Related Offences) Bill 2020

Statement of compatibility

Ms HENNESSY (Altona—Attorney-General, Minister for Workplace Safety) (10:08): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table the statement of compatibility with respect to the Crimes Amendment (Manslaughter and Related Offences) Bill 2020.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (Charter), I make this Statement of Compatibility with respect to the Crimes Amendment (Manslaughter and Related Offences) Bill 2020 (Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill will amend the Crimes Act 1958 to:

• increase the maximum penalty for manslaughter, child homicide and workplace manslaughter;

• introduce a new homicide by firearm offence with a maximum penalty of 25 years’ imprisonment and standard sentence of 13 years; and

• clarify the relationship between homicide by firearm, child homicide and manslaughter.

The Bill also makes consequential amendments to several Acts, to ensure the law treats homicide by firearm in the same way it treats manslaughter and child homicide.

Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill are:

• The right to life (section 9);

• The right to protection of families and children (section 17);

• The right to security (section 21);

• The right to a fair hearing (section 24);

• The right to be informed of the nature and the reason for a charge (section 25(2)(a)) and

• The protection from a higher penalty (section 27(2)).

For the following reasons, I am satisfied that the Bill is compatible with the Charter and, if any rights are limited, the limitation is reasonable.

Increased maximum penalties

Clauses 3, 4 and 21 of the Bill increase the maximum penalties for manslaughter, child homicide and workplace manslaughter from 20 to 25 years’ imprisonment. This lifts the upper boundary of the range of possible sentences that may be imposed for these offences, providing sentencing courts with greater scope to address the most serious cases. As the tragic outcome of these offences is that a person has died, increasing the maximum penalty that applies promotes the right to life (section 9).

Setting higher maximum penalties for these offences also promotes the right to safety and security (section 21). It provides courts with scope to sentence serious offenders to a period of imprisonment which is proportionate to the gravity of their offending, facilitating community safety from further unlawful and dangerous, or criminally negligent, behaviour.

Clause 4 also promotes the right in section 17(2) of the Charter, which provides that every child has the right to such protection as is in their best interests and is needed by them by reason of being of a child. Clause 4 of the Bill recognises that children aged six years and under are particularly vulnerable, and provides courts with scope to impose higher sentences for the most serious cases of child homicide. This sends a strong message to the community that conduct which results in the death of these particularly vulnerable children will not be tolerated.

Clauses 3, 4 and 21 of the Bill are also relevant to, but do not limit, the protection against retrospective criminal laws (section 27(2)). Clause 9 makes clear that the higher maximum penalties for manslaughter, child homicide and homicide by firearm will only apply to offences that are entirely committed after the increases take effect. Offences committed before that date will continue to be guided by the maximum penalty that applied at the time that the offending conduct occurred. As it is intended that the penalty for workplace manslaughter be increased on the same day that the offence itself commences, in practical terms, the offence will commence with a maximum penalty of 25 years’ imprisonment.

Homicide by firearm

Clause 5 of the Bill also promotes the right to life and the right to security, by introducing ‘homicide by firearm’ with a 25 year maximum penalty and 13 year standard sentence. This new offence emphasises that the community expects people who use firearms to do so safely. It sends a strong message about the potentially serious consequences of handling firearms dangerously. In seeking to deter people from engaging in similar life-threatening behaviour, this new offence enhances community safety and promotes the right to life.

Clarifying the relationship between manslaughter offences

Clauses 4 and 5 of the Bill make clear that the prosecution is not prevented from charging an accused with manslaughter when the facts could also support either child homicide or homicide by firearm. For example, where a victim of manslaughter is under the age of six years, clauses 4 and 5 clarify that the prosecution could charge the accused with manslaughter, rather than child homicide, if it considered that to be more appropriate in the circumstances.

These clauses will provide much-needed clarity. However, I recognise that it will also add complexity to some murder trials, engaging the rights in sections 24 and 25 of the Charter. Section 24 provides that every person charged with a criminal offence has the right to have the charge or proceeding decided by a competent, independent and impartial court after a fair and public hearing. Section 25 provides, among other things, that a person charged with a criminal offence is entitled to be informed promptly and in detail of the nature and reason for the charge.

Section 24 of the Charter reinforces the common law right to a fair criminal trial (Knight v Wise [2014] VSC 76). It relates to the procedural fairness of the decision, and can sometimes require a trial judge to instruct a jury about an available alternative verdict to the offence charged, whether or not it has been listed on the indictment (James v The Queen (2014) 254 CLR 475). Failing to do so can lead to a substantial miscarriage of justice, if the jury could have been satisfied beyond reasonable doubt that the accused was guilty of the less serious charge (Aston v The Queen [2019] VSCA 225).

When amended by clause 7 of the Bill, section 421 of the Crimes Act 1958 will provide that manslaughter, child homicide and homicide by firearm are all alternative verdicts to a charge of murder. As clause 5 of the Bill makes clear, the fact that the death resulted from discharge of a firearm, or the victim was a child under the age of six years, will not preclude the availability of manslaughter as an alternative verdict to murder.

The standard sentence for homicide by firearm will help address this complexity. Judges will need to consider the standard sentence when imposing a sentence for homicide by firearm, but will not need to have regard to this additional factor when sentencing for manslaughter or child homicide. This will encourage the prosecution to consider whether to list homicide by firearm as an alternative charge on a murder indictment, alleviating the complexity that may otherwise arise if a judge considers it necessary to direct the jury on all possible alternative verdicts.

If an alternative charge is not included on the indictment, the prosecution still has a responsibility to inform the trial judge if an alternative offence is open on the evidence (Jury Directions Act 2015, section 11). This would prompt a discussion about which alternative offence the judge should direct the jury about, where more than one of the three are supported by the facts. If, as a result of this discussion, the jury is only directed about manslaughter, that is unlikely to lead to a miscarriage of justice. Accordingly, any additional complexity arising from clauses 4 and 5 will be appropriately managed by prosecutorial charging discretion and informed jury directions. It will not limit the accused’s right to a fair hearing.

Section 25 of the Charter is also relevant, but not limited by this additional complexity. The complexity will only arise in a small number of cases where a person is charged with murder and more than one possible statutory alternative is available on the facts. However, the right is directed to the charge itself—murder—rather than available alternatives. The Bill does not limit an accused person’s right to be informed of the nature and reason for the murder charge.

Hon Jill Hennessy MP

Attorney-General

Minister for Workplace Safety

Second reading

Ms HENNESSY (Altona—Attorney-General, Minister for Workplace Safety) (10:09): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

This Bill strengthens Victoria’s homicide laws to ensure that those who commit the most serious crimes receive sentences of imprisonment that better reflect their culpability for causing the death of another.

In particular, the Bill delivers on a Government election commitment to introduce a new offence of ‘homicide by firearm’ for cases of manslaughter committed by discharging a firearm. It will also introduce tougher penalties for manslaughter and child homicide to better reflect the seriousness of these crimes.

Increasing the maximum penalty for manslaughter and related offences

In Victoria, a person may commit manslaughter by an ‘unlawful and dangerous act’ which causes death if there was an ‘appreciable risk’ of causing serious injury. Manslaughter may also be committed by ‘criminal negligence’, where a person commits an act causing death in circumstances of ‘gross negligence’.

This covers a very wide range of circumstances and degrees of culpability, from deaths which do not involve violence and might look a lot like accidents at the low end, through to deaths where the offender’s conduct was so deliberate and violent that the offence appears much like murder.

However, manslaughter differs from murder in that, for murder to have been committed, the offender must have intended either to kill or to cause really serious injury to the victim. If that intent cannot be proved—and proving it may be very difficult, particularly where there are no witnesses—then an offender, even if originally charged with murder, may be convicted of manslaughter instead.

This outcome can cause confusion and anger, both amongst a victim’s loved ones, and from the wider community—who may, understandably, have difficulty accepting that such an outcome is just. The hurt may be amplified when the offender—despite a demonstrably high degree of culpability—is then sentenced in accordance with established sentencing practice for manslaughter, and thus receives a term of imprisonment that falls far short of expectations.

Currently, the maximum penalty for the manslaughter is 20 years’ imprisonment. This is the lowest maximum penalty for this offence within Australia. Data from the Sentencing Advisory Council shows that, between July 2013 and June 2018, the highest sentence of imprisonment imposed for the offence of manslaughter was 12 years, with a median term of eight years. More recently, two offenders have received sentences of 13 years’ imprisonment, and the highest sentence ever imposed for manslaughter in Victoria was 15 years’ imprisonment.

It is important that our available penalties for manslaughter provide enough scope for the courts to impose sentences which can appropriately reflect the very broad range of culpability—not just at the lower end, but at the top end—for the very worst crimes—as well. The Government is not satisfied that the existing maximum penalties do that.

Accordingly, the Bill will increase the maximum penalty for manslaughter to 25 years’ imprisonment. This is the highest maximum penalty in Victoria short of life imprisonment, which is reserved for the most heinous offences, such as murder.

By increasing the maximum penalty for this offence, the Government intends to send a clear message that past sentences imposed for the most serious offending of this nature have been inadequate. It expects that future sentencing practice, developed with a higher maximum penalty as a guidepost, will better reflect the seriousness of this offence. The higher maximum penalty will give courts broader scope to impose more severe sentences in cases involving high levels of moral culpability. At the same time, courts will retain discretion to impose lower sentences in appropriate cases (such as where the offender has very low moral culpability).

For consistency, the Bill will also increase the maximum penalty for the related offences of child homicide and workplace manslaughter, from 20 to 25 years’ imprisonment. These offences are forms of manslaughter, and it is important that our laws reflect that, objectively, no form of manslaughter is necessarily inherently more serious than another.

Introducing a new homicide by firearm offence

The Bill acquits a Government election commitment to introduce a new offence of ‘homicide by firearm’, with a maximum penalty of 25 years’ imprisonment and a standard sentence of 13 years’ imprisonment.

The new offence addresses concerns about sentences imposed in certain firearm related manslaughters. In recent years, there have been several shooting cases where offenders were sentenced for manslaughter after claiming they did not intend for the firearm to discharge.

These cases have often arisen from circumstances where the offender has shot and killed the victim in an isolated or private place, with no witnesses. While they might originally have been charged with murder—and there may even have been a history of relationship violence—murder has not been able to be proved.

The women—and the victims are, I am sorry to say, almost always women—who have been killed in these cases did no wrong; they did not deserve this; and they must not be forgotten. They include Karen Belej, who was shot and killed by her partner in 2016; Tamara Turner, shot and killed by her partner in 2016; Rekiah O’Donnell, shot and killed by her partner in 2013; and Kara Doyle, also shot and killed by her partner in 2013. Our hearts, and our condolences, go out to the families not only of these women, but all the others who have also been killed in such appalling circumstances.

I have met with the families of some of these victims, I can say that few of us could truly comprehend the grief of a parent who has learned that their daughter has been shot dead by a jealous or violent partner. But I think we could all well understand the anger and confusion they would feel on learning that their child’s killer has not been convicted of murder; and has received what—to them—seems a sentence of just a few years’ imprisonment.

While it must, of course, continue to be incumbent on the prosecution to prove that any particular killing was murder—and nobody should be convicted of murder that is not proved to have been such—the Government agrees that criminals who use firearms dangerously, and cause another person’s death, should receive tougher sentences whether the death was intended or not. The sentencing guideposts for ‘homicide by firearm’—that is, the maximum penalty and standard sentence—indicate how seriously the Government considers this type of dangerous activity.

I want particularly to acknowledge the families of Karen Belej and Rekiah O’Donnell, whose dignity and determination in pursuing change has been instrumental. The new offence, which they have called for, will give the courts scope to establish a new sentencing practice for manslaughter cases involving firearms that is independent to sentencing practice for general manslaughter. The label of ‘homicide’ will also send a clear message that the dangerous handling of firearms will not be tolerated by the law, and that those who handle these dangerous weapons have a responsibility to act with care.

The 13 year standard sentence indicates Parliament’s view of the sentence that should be imposed for a ‘homicide by firearm’ that falls in the middle range of seriousness, when considering only objective factors. This will provide additional guidance to courts about how seriously this type of offending should be treated. It indicates that sentences of more than 13 years’ imprisonment should be imposed for very serious offending, while recognising that less serious offending should result in lower sentences.

These reforms cannot address the pain of those families who have lost loved ones, but the Government hopes they will bring some measure of comfort by ensuring that future offenders will receive higher, more appropriate sentences.

Ensuring that the prosecution can charge the most appropriate manslaughter offence

Because homicide by firearm, child homicide and manslaughter are all forms of manslaughter—that is, they all respond to deaths caused where murderous intent was not present or cannot be proved—it is important that the law clarifies the relationship between the three offences, to ensure that the prosecution can charge the most appropriate manslaughter offence in a case.

Child homicide applies where a person kills a child aged under six years in circumstances that would otherwise constitute manslaughter. This offence was introduced in response to concern that the sentences imposed in cases involving the manslaughter of young children, by someone responsible for their care, were too low.

Remarks in the case of R v Hughes [2015] VSC 312 led to uncertainty about whether manslaughter remained available as a charge if the victim was under the age of six years. The Bill clarifies the law by making clear that, in a manslaughter case involving the death of a child under six years, the prosecution has discretion to charge either the offence of child homicide, or manslaughter, as it feels appropriate to the specific circumstances.

This helps to avoid some of the complexity that might, for example, otherwise arise if a young child and an adult both died from the same act. The Bill makes clear that in such cases, the prosecution may charge manslaughter in relation to both victims, rather than manslaughter with respect to the adult and child homicide with respect to the child. This reflects the original intention of the child homicide reforms.

For the avoidance of doubt, the Bill also makes clear that in manslaughter cases involving the death of a child under six years caused by firearm, the prosecution can decide whether to charge the offender with manslaughter, child homicide or homicide by firearm.

When an accused seeks to contest a murder charge—for example, because the prosecution has no evidence to prove the accused had murderous intent—and the facts of the charge could support either manslaughter, homicide by firearm, or child homicide as an alternative verdict, the Director of Public Prosecutions may include whichever alternative charge on the indictment that, in her view, is most appropriate in the circumstances of the case, and is in the public interest to include. In the event that the indictment does not indicate an appropriate alternative charge, the procedures set out in Victoria’s Jury Directions Act 2015 will assist the court to navigate these issues when directing the jury.

I commend the Bill to the house.

Mr WELLS (Rowville) (10:09): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday, 20 February.