Wednesday, 4 March 2020

Sentencing Amendment (Emergency Worker Harm) Bill 2020

Statement of compatibility

Ms HENNESSY (Altona—Attorney-General, Minister for Workplace Safety) (10:41): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Sentencing Amendment (Emergency Worker Harm) Bill 2020.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Sentencing Amendment (Emergency Worker Harm) Bill 2020 (the 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 of the Bill

a) Restriction of non-custodial orders

The Sentencing Act 1991 (the Sentencing Act) contains two groups of objectively serious offences, known as ‘Category 1 offences’ and ‘Category 2 offences’, for which a custodial sentence must be imposed, unless an exception applies.

In 2018, the Government passed the Justice Legislation Miscellaneous Amendment Act 2018 (the 2018 Act), which amended Category 1 to include certain cause injury offences committed against emergency workers, custodial officers and youth justice custodial officers on duty (together, ‘emergency workers’). The effect of this was to require courts to impose a custodial order for these offences, except in very limited circumstances. This reform worked alongside statutory minimum sentences which already applied to offences against emergency workers.

Additionally, the 2018 Act introduced an exception to the requirement to impose a custodial sentence which enabled offenders against emergency workers to avoid the imposition of a custodial order if they suffered from impaired mental functioning at the time of the offending, and that impairment substantially reduced their culpability. Such offenders could instead be sentenced to a new sentencing order (a mandatory treatment and monitoring order (MTMO)), a residential treatment order or a court secure treatment order.

This Bill restricts the availability of non-custodial orders for offenders found guilty of certain offences against emergency workers by limiting the circumstances in which the court may avoid imposing a non-custodial sentence (by finding that a ‘special reason’ exists, or that the offender was involved in an offence other than as a principal offender.

This Bill also clarifies existing restrictions on the availability of non-custodial orders in the Sentencing Act, Crimes Act, and Serious Offenders Act so that these provisions are applied consistently.

b) Reverse onus

The Bill changes the way in which a sentencing court deals with offenders who have been found guilty of certain offences against emergency workers (and to which a statutory minimum sentence applies) on the basis of being ‘involved’ in the commission of the offence (otherwise known as ‘complicit offenders’ or offenders who ‘aid and abet’). Currently, offenders found guilty on this basis are excluded from the requirement to impose the relevant statutory minimum sentence.

This Bill will introduce a reverse onus provision that requires offenders who are found guilty on the basis that they are complicit in the offending, rather than the principal offender, to then prove on the balance of probabilities that their involvement was minor, making their culpability so low as to justify an exception to the statutory minimum scheme. If an offender cannot prove that their offending was so minor, they will not be excluded from the operation of any applicable statutory minimum sentence.

c) Requirement to prosecute all statutory minimum offences in the higher courts

Recognising that the law relating to statutory minimum sentence offences is complex, and there is high public interest in its application, this Bill will require the Office of Public Prosecutions (OPP) to prosecute, and the higher courts to determine, all offences with a statutory minimum sentence.

Human Rights Issues

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

Together, these proposed amendments engage sections 8, 10, 21, 24, 25 and 27 of the Charter.

The right to be free from cruel punishment and arbitrary detention (sections 10 and 21)

Sections 10 and 21 of the Charter are relevant to the further restrictions on the availability of non-custodial orders contained in the Bill, and to the requirement for all offences with statutory minimum sentences to be heard in the higher courts. These reforms could arguably expose more offenders to being sentenced to custodial sentences, or to longer custodial sentences.

Section 10(b) of the Charter provides that a person must not be punished in a cruel, inhuman or degrading way. In some circumstances, statutory minimum sentences have been found to limit this right where a court has been compelled to impose a grossly disproportionate sentence. Sections 21(2) and (3) of the Charter provide that every person must not be subject to arbitrary detention and must not be deprived of their liberty except on grounds, and in accordance with procedures, established by law. Where a law authorises detention that is unjust, it may limit this right.

I consider that the amendments made by the Bill to limit the circumstances in which the court may avoid imposing a non-custodial sentence (by finding that a ‘special reason’ exists or that an offender was involved in an offence other than as a principal offender) do not limit section 10 of the Charter, or unjustifiably limit section 21, for the following reasons.

First, there is a genuine need for these reforms, in order to address increasing incidents of offending against this exposed victim group. Crime Statistics Agency data shows that in the six years to 2018 in Victoria there had been a 23 per cent increase in recorded assaults against police, emergency services or other authorised officers. In 2018, there were 3,072 offences recorded, compared to 2,504 in 2012.

The proposed amendments target a narrow and well-defined class of victims of serious, violent crimes, including exposed emergency workers. The impact of these changes is carefully tailored and targeted to a specific subset of offending and so it is limited in scope. The relevant prescribed statutory minimum sentences for these offences range from six months to five years and are not, on their face, grossly disproportionate. These sentences are within the normal range for such offences.

The amendments are also proportionate. The purpose of imposing a custodial sentence in relation to offences against emergency workers is to ensure that conduct which injures one of these exposed workers is punished in a way that reflects the objective gravity of that conduct; and that people who commit these offences are punished proportionally to this seriousness and do not receive non-custodial sentences. An offender found to have impaired mental functioning that was substantially due to their self-induced drug or alcohol intoxication should not be able to avoid the application of these provisions by accessing a safeguard intended to protect vulnerable persons.

I acknowledge that the imposition of a custodial order for offences against emergency workers may possibly render the sentence arbitrary, excessive or inhumane in a minority of cases. This risk may be heightened in relation to vulnerable groups in our society. This is because, while there may be mitigating factors present in individual cases which justify the imposition of a non-custodial sentence, such a sentence will now be unavailable unless the limited exception for impaired mental functioning applies to the relevant offence.

However, these reforms strike an appropriate balance between the need to protect emergency workers and send a strong and clear message that attacks against emergency workers will not be tolerated, while at the same time maintaining necessary exceptions to statutory minimum sentencing requirements to avoid unjust outcomes for offenders with lower culpability or particular vulnerabilities.

Further, as well as the ability to impose a non-custodial order on the basis of impaired mental functioning, a court can also avoid imposing the statutory minimum sentence if it is satisfied that a special reason exists. The court therefore retains sentencing discretion in certain circumstances. In my view, these exceptions, combined with the genuine need for the amendments, mean that the right not to be punished in a cruel, inhuman or degrading way is not limited and that the right to be free from arbitrary detention is limited, if at all, in a reasonable and justifiable manner in accordance with the Charter.

The right to equality (section 8)

Section 8(3) of the Charter provides that every person is equal before the law and is entitled to equal protection of the law without discrimination. The right to equality and non-discrimination in section 8 is relevant to the extent that the amendments in the Bill may disproportionately impact vulnerable groups with protected attributes, including young offenders, Aboriginal people and persons with impaired mental functioning.

It is possible that the amendment to the special reasons regarding impaired mental functioning may indirectly discriminate against individuals with a protected attribute. This is because the restriction of the special reasons exception introduces a higher test of impaired mental functioning, meaning that fewer people will be able to satisfy the special reasons exception, exposing more people to a custodial sentence with a statutory minimum.

However, it is appropriate to limit the special reason in relation to impaired mental functioning in the manner that Bill proposes. Other vulnerable offenders may still be able to avoid the application of any statutory minimum sentence if one of the other special reasons is found to apply in their case. Any further carve out from the operation of statutory minimum sentences for a wider group of offenders would prevent the amendments from fulfilling their important deterrent purpose.

An offender found to have impaired mental functioning that was substantially due to their voluntary consumption of drugs and alcohol should not be able to access a safeguard that was introduced for the purpose of assisting vulnerable persons to access appropriate and necessary care in the community that will address that impaired mental functioning (care that is not necessarily available in the custodial environment). It is appropriate that the Bill therefore amends the operation of the ‘special reason’ exception so that it will not apply in cases where a person’s impaired mental functioning is substantially caused by self-induced intoxication.

I consider that any discrimination which may result from these amendments is reasonable. The amendments are necessary to ensure that conduct which results in an injury to one of these exposed workers is punished in a way which reflects the objective gravity of that conduct; that people who commit these offences are punished proportionally to this seriousness and do not receive non-custodial sentences; and to ensure that offenders are deterred from committing these offences, by showing the community that this serious offending will attract an equally serious outcome.

Further, the Bill includes safeguards against the inappropriate application of custodial sentences for offenders with substantial impaired mental functioning. It also retains the discretion of a court not to impose the prescribed minimum non-parole period for the relevant offence if it is satisfied of the existence of a special reason.

For these reasons, I consider that any limitations to the right to equality are reasonable and justified.

The right to a fair hearing (section 24)

Section 24(1) of the Charter provides that a person charged with a criminal offence has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. This right is relevant because by expanding the circumstances in which the court is precluded from imposing non-custodial sentences, the Bill will impact the sentencing discretion of judicial officers.

However, courts retain the sentencing discretion to make a finding that special reasons apply (albeit in more restricted circumstances) and consequently not apply the prescribed minimum non‐parole period. The court also has discretion to impose a non‐custodial sentence for offences against emergency workers where an offender has impaired mental functioning for the purposes of a finding that a special reason exists. Retaining this judicial discretion ensures that the right to a fair hearing is not limited.

Additionally, the High Court has consistently held that provisions imposing statutory minimum sentences do not constitute a usurpation of judicial power.

On this basis, I do not consider that the Bill limits the right to a fair hearing.

The right to be presumed innocent (section 25)

Section 25(1) of the Charter concerns the rights of the accused in criminal proceeding and, amongst other things, protects the presumption of innocence. A charged person is entitled to be presumed innocent until proven guilty of the offence charged, and the prosecution bears the burden of proving the guilt of the accused beyond a reasonable doubt. Reverse onus provisions which shift the burden of proof or apply a presumption that operates against the accused may limit rights under section 25 of the Charter.

Currently, offenders who have been found guilty on the basis of being involved in the commission of the offence (otherwise known as ‘complicit offenders’ or offenders who ‘aid and abet’) are excluded from the operation of statutory minimum sentences that apply for offences committed against emergency workers. Consequently, for an offender to be subject to a statutory minimum sentence, the prosecution must prove beyond reasonable doubt that the offender was a principal offender.

This Bill amends the complicit offender exception to require that an offender who has already been found guilty of an offence involving multiple offenders must prove on the balance of probabilities that their involvement was minor, such that their culpability is so law to justify an exception to the statutory minimum scheme.

I am of the view that this provision does not limit section 25(1) of the Charter, as it relates to the sentencing of an offender who has already been found guilty of the offence, rather than requiring the offender to disprove an element of the offence. Further, the Bill maintains the rights of an accused in criminal proceedings and does not affect the right to be presumed innocent until proven guilty, and for accused persons to defend themselves against charges brought against them.

This provision also arguably places a legal burden on an offender to rebut a presumption that they were a principal offender in the commission on an offence against an emergency worker.

However, in my view it is appropriate for the burden to rest with the offender, given that the exception is a beneficial provision that enables an offender to receive a non‐custodial sentence in circumstances where a custodial sentence would otherwise be imposed. Additionally, recent cases have demonstrated that where emergency workers are attacked by multiple offenders, there may not be sufficient evidence to prove beyond reasonable doubt that any one offender was the ‘principal offender’. This could lead to an outcome where the statutory minimum sentence does not apply to any offender, despite that a relevant offence has been committed against an emergency worker. The outcome is at odds with the nature of a ‘group attack’, which stakeholders view as objectively more serious and can have a more significant impact on victims. An offender is best placed to provide evidence that this exception should apply.

Retrospective criminal laws (section 27)

Section 27(2) of the Charter provides that a penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed. This right is relevant because the amendments in this Bill will apply to all sentencing hearings (for reforms relating to the ‘special reasons’ not to impose a statutory minimum sentence), or criminal proceedings (for reforms relating to complicit offenders), that begin on or after the date of commencement of this Bill, regardless of when the offence was committed. In practice, it could potentially result in an offender being subject to a statutory minimum custodial sentence for an offence committed prior to the commencement of this Bill, in circumstances where a court may have imposed a more lenient sentence.

Currently, an offender who was intoxicated at the time of committing a relevant offence against emergency workers may avoid the imposition of a statutory minimum sentence if the court is satisfied that the offender had impaired mental functioning, and that impaired mental functioning was not solely caused by their self-induced intoxication; that is, that there is any additional reason for that impaired mental functioning, for example, the offender also has an underlying mental health condition. However, if sentencing proceedings occur after commencement of this Bill, the same offender may be subject to a statutory minimum custodial sentence, depending on the extent to which their impaired mental functioning was caused by their self-induced intoxication.

Similarly, an offender in a group attack against an emergency worker may currently avoid the statutory minimum custodial sentence if there is insufficient evidence for the prosecution to prove beyond reasonable doubt that they were a principal offender. However, if criminal proceedings commence after the commencement of this Bill, the same offender would be subject to the statutory minimum custodial sentence unless they can prove on the balance of probabilities that their contribution was minor.

However, I consider this limitation to be reasonable and justified in the circumstances. The proposed change will apply to a small group of offenders, being those who committed a relevant offence between 28 October 2018 (being the commencement of the 2018 reforms) and the commencement of this Bill, and only in circumstances where court proceedings have not yet started. The relevant offences are narrow and well-defined, and target serious and violent crimes against exposed emergency workers. The relevant prescribed minimum non-parole periods for these offences range from six months to five years and are not, on their face, grossly disproportionate. These sentences are within the normal range for such offences.

The Hon. Jill Hennessy MP

Attorney-General

Minister for Workplace Safety

Second reading

Ms HENNESSY (Altona—Attorney-General, Minister for Workplace Safety) (10:42): 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 will strengthen sentencing requirements for injury offences committed against emergency workers by further clarifying the intended scope of the laws and their narrow exceptions, to better ensure Parliament’s intent is reflected in sentencing practice, and ultimately to better protect our emergency workers from harm as they go about their duties.

Emergency service workers perform a critical role keeping the Victorian community safe. In doing so, emergency workers are routinely required to put themselves in harm’s way in the course of performing their duties. Violence towards emergency workers in the line of duty is unacceptable and will not be tolerated.

Victoria’s emergency worker harm laws were first introduced in 2014, by the then Liberal government. Statutory minimum sentences of at least six months’ imprisonment apply for injury offences committed against an emergency worker while on duty, unless a specific exception applies.

These sentencing requirements were intended to better protect emergency workers from being exposed to violence and intimidation in the course of their duties, by acting as a deterrent against such behaviour. The requirements also reflect the objective seriousness of offences committed against emergency workers while they are performing their duties protecting Victorians. From the time these laws were first created, the sentencing requirements were made subject to exceptions, including specific ‘special reasons’ not to impose the statutory minimum. These exceptions recognised that while in most or almost all cases such offences can be presumed to be high culpability attacks deserving of condemnation and lengthy periods of imprisonment, there may nevertheless be rare cases where the offender’s culpability for their conduct is low—for example because of mental illness or disability—and where imprisonment is not an effective or appropriate response.

Without such exceptions—in other words, if the sentencing requirements were mandatory—a court would not be able to avoid imprisoning (for example) an elderly dementia sufferer, or somebody with autism spectrum disorder, who lashed out instinctively and injured a paramedic called by family to help them. Similarly, a seriously mentally ill person suffering a psychotic episode in a public place, who lashes out in fear and confusion at a police officer or paramedic who is trying to help them, would be required to be jailed for at least six months. Those sorts of cases are a world away from the kind of deliberate or drunken thuggery and bashings of emergency workers that drove the creation of these laws, and that they were designed to combat. That is why the exceptions were created, and it is why exceptions must remain.

However, experience with the laws as originally enacted demonstrated that there were deficiencies in the way in which they were drafted. That is why, in 2018, the Andrews Labor Government introduced significant reforms to sentencing requirements for these offences, including tightening the scope of exceptions, and creating an additional requirement to impose a custodial order of some length even where one of the limited exceptions is satisfied and the statutory minimum sentence does not apply.

As cases start to come before the courts, we are now beginning to see how the reforms we introduced in 2018 are operating in practice. We have seen a number of recent cases where offenders have been sentenced to terms of imprisonment equal to or greater than the statutory minimum. These cases demonstrate that, while the laws are complex, they are working and are starting to have their intended effect on sentencing outcomes.

However, some other recent cases have shown that some sentencing requirements for emergency worker harm offences are causing some confusion and may not be operating in line with the Government and Parliament’s intention.

In recognition of this, in August 2019, the Government reconvened the Emergency Worker Harm Reference Group to consider whether further amendments should be made to the laws. That Group, which includes representatives from Victoria Police, Ambulance Victoria, the Office of Public Prosecutions, and unions representing emergency service workers—The Police Association of Victoria, Victorian Ambulance Union, Australian Nursing and Midwifery Association, Community and Public Sector Union and United Voice—has worked diligently in conjunction with the Government to develop a suite of reforms that will ensure more clarity in these laws, less room for error and unintended outcomes, and ultimately provide better protections for emergency workers. These reforms will be made while balancing the need to protect the most vulnerable members of our community from sanctions which would only serve to exacerbate their situation.

I would like to thank the members of the Reference Group for their considered contributions to the development of this reform package. The Government looks forward to continuing to work in partnership with you in the future.

The reforms in this Bill clarify the intended scope of operation of sentencing requirements for offences against emergency workers, and further clarify the narrow circumstances in which a statutory minimum sentence may be avoided.

These reforms seek to strike an appropriate balance between the need to protect emergency workers and send a strong and clear message that attacks against emergency workers will not be tolerated, while at the same time maintaining necessary exceptions to statutory sentencing requirements to avoid unjust outcomes for offenders with lower culpability or particular vulnerabilities.

I will describe each of the key reforms in turn.

Higher courts to hear all emergency worker cases to which statutory minimums apply

In recognition of the complexity of the law and high public interest in its application, the Bill requires the Office of Public Prosecutions to prosecute, and the higher courts to determine, all offences against emergency workers to which a statutory minimum sentence applies.

This is consistent with Parliament’s intention that such offending be viewed as serious in nature and ensure that such cases are progressed by senior and experienced legal and judicial officers.

An additional layer of considerations for statutory minimum sentences

The Bill introduces an additional layer of sentencing considerations when a court has found a special reason exists not to impose a statutory minimum sentence.

Courts will now be required to have regard to the fact that a sentence of at least the length of the statutory minimum sentence should ordinarily be imposed unless the cumulative impact of the circumstances of the case (including the special reason) justifies a departure from that sentence.

This will make it clear that satisfying a special reason does not, on its own, displace the requirement to impose a sentence equivalent to the statutory minimum. Rather, the court must consider and explain why a different sentence is necessary, having regard to Parliament’s intention that offences against emergency workers must be considered as inherently more serious than similar offending against victims who are not emergency workers.

Refine the test for impaired mental functioning caused by self-intoxication

Victoria’s emergency worker harm laws include two ways in which a person’s impaired mental functioning might mean there is a special reason not to impose a statutory minimum sentence: firstly, if that person’s impaired mental functioning is causally linked to their offending, such that it substantially reduces their moral culpability for their actions; and secondly, if a person faces a substantially or materially greater than the ordinary burden or risk of imprisonment due to their impaired mental functioning.

This Bill will make it harder to satisfy the special reasons not to impose a statutory minimum sentence and, therefore, ensure that statutory minimum sentences will apply in more cases where emergency workers are harmed.

First special reason—impaired mental functioning that is causally linked to offending

The first special reason recognises that a statutory minimum sentence may not be appropriate where an offender’s impaired mental functioning is causally linked to their offending, such that it substantially reduces their moral culpability for their actions. For instance, it may not be appropriate to impose a statutory minimum sentence on an offender who has dementia, or suffers schizophrenia and is experiencing a psychotic episode, and injures an emergency worker while in this impaired state.

Currently this special reason will not apply where an offender’s impaired mental functioning is solely due to self-induced intoxication (e.g. from drugs and/or alcohol).

There are concerns that the requirements for satisfying this special reason may currently be too easily met by offenders, because they might be able to satisfy it due to the mere existence of another factor (however minor), in addition to drug and/or alcohol consumption, that contributes to impaired mental functioning. These offenders might therefore be able to avoid the requirement to impose a statutory minimum sentence because their impaired mental functioning impairment was not caused solely by self-induced intoxication, thereby giving them access to a safeguard intended to protect vulnerable persons.

The Bill narrows the test to exclude impaired mental functioning that is caused “substantially” (rather than just “solely”) by self-induced intoxication. While it can be hard to unpick the cause of offending where there is a mix of intoxication and underlying mental illness, the new test will allow a more common sense weighing up of contributing factors. The special reason will not be able to be relied on where there are multiple causes of mental impairment, but the main cause is self-intoxication.

Second special reason—impaired mental functioning impacts burden or risk of imprisonment

The second special reason for not imposing a statutory minimum sentence applies where the offender faces a substantially and materially greater than ordinary burden or risk of imprisonment due to their impaired mental functioning.

This exception, which has applied since the laws were first passed, recognises that the statutory minimum term of imprisonment may not be appropriate or desirable for such offenders in all cases—for example, for an intellectually disabled offender who is likely to be particularly vulnerable in prison, or an offender who cannot receive appropriate treatment or support for a significant mental health condition in a custodial setting, where imprisonment is likely to seriously exacerbate the symptoms of their condition.

However, changes made in 2018 mean that—despite the higher burden of imprisonment—some period of imprisonment must still be imposed. That change acknowledged that a mental impairment which leads only to a finding of the ‘burden of imprisonment’ special reason does not reduce the offender’s culpability for the crime. Changes made by this Bill to introduce an additional layer to sentencing considerations—which I have already described—will further ensure that, in setting an appropriate sentence where the ‘burden of imprisonment’ is high, the court must have regard to Parliament’s intent as to the length of sentence that should ordinarily be imposed.

Complicit offenders

Offenders found guilty on the basis of being involved in the commission of the offence (otherwise known as ‘complicit offenders’ or offenders who ‘aid and abet’) have been excluded from most statutory minimum sentences that apply to injury offences since they were first introduced. This is because violent offences can often involve offenders who are only involved in a minor way, such as encouraging someone to resist arrest during an affray.

However, as is the case for the mental impairment special reasons, this exception does not preclude a sentence of imprisonment equivalent to or longer than the statutory minimum being imposed, where appropriate.

In cases where emergency workers are attacked by multiple offenders, there may not be sufficient evidence to prove beyond reasonable doubt that any one offender was the ‘principal offender’. This raises the possibility of an outcome in a group attack situation where the statutory minimum sentence cannot be shown to apply to any offender, despite the fact that an emergency worker has been injured on duty.

This Bill implements a reverse onus to make it harder for offenders in a group attack against emergency workers to avoid a statutory minimum sentence merely because of the difficulty in proving beyond reasonable doubt that they were a principal offender. Instead, offenders will need to prove that their involvement in the offending was minimal in order to access this exception. This reform clarifies our expectations, and I believe the expectations of the Victorian public, that those who engage in cowardly group attacks on emergency workers are even more deserving of our absolute condemnation—and it is appropriate they be presumed jointly responsible for the outcome unless they can prove otherwise. This change will help to ensure the exception to the statutory minimum sentence only applies where the circumstances of the case absolutely justify it—and, as is the case where the burden of imprisonment special reason is found, a sentence of imprisonment must still be imposed.

Other reforms to clarify the operation of statutory minimum sentences

The Bill also makes other minor technical amendments to the emergency worker harm laws, including by amending the definition of emergency worker in the Sentencing Act to confirm that interstate emergency workers on duty in Victoria are protected by the emergency worker harm laws, and making other minor changes to clarify the operation of the sentencing scheme that operates in relation to offences committed against emergency workers.

Together, this package of reforms will ensure that the sentencing scheme for offences against emergency workers continues to achieve its underlying objectives, and strikes an appropriate balance between the need to protect the rights of offenders with impaired mental functioning, and the need to protect community safety and uphold the rights of victims.

I commend the Bill to the house.

Ms McLEISH (Eildon) (10:42): 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 Wednesday, 18 March.