SENTENCING AMENDMENT (ASSAULTS ON POLICE OFFICERS) BILL 2014 (No. 17): Second Reading

(Mrs Armitage) - Mr Deputy President, we all accept police officers have a very difficult job to do. They put themselves on the front line day in and day out, they need protection and I, like others, want to protect them in every way possible. I appreciate very much the work they do in making society feel safe. I also feel for their families when serious injuries occur. I cannot say too strongly how much I respect our police and the job that they do.

Often you hear of police officers being assaulted, and assaulted badly, when working in the normal course of their duty and this is a serious crime. You then see the result of the court procedure where the defendant comes to court, he puts a plea in mitigation and the magistrate imposes a penalty which in no way seems to be equal to the crime or offence that was committed by the individual. The individual may argue that he was intoxicated at the time, or a number of other mitigatory matters which, in the end, make the police wonder whether they are getting the proper protection they should be by the courts and I accept that.

This legislation, being part of the Government's pre-election policy, wants to make it a more serious offence to assault a police officer. I have no argument with that.

However, I do have a query in relation to mandatory penalties. What I would like to see is proper resourcing of police officers and the Government put more money into the police budget. I accept the commitment for a further 108 officers but I do wonder how in the future the department will continue to manage its budget. I see this bill as a more inexpensive way of the Government looking like they are doing something to discourage assaults against police. As has been mentioned, this bill may be rarely used. If they were really serious they would provide more funds to allow at least two police to always respond to calls or be on duty together. Perhaps look at allowing tasers and provide them with the sleeveless jackets marked 'Police', to clearly identify them at all times. They would act in a proactive way, not a reactive way.

Safety is important for us all and there are some areas where you just cannot skimp - health, safety and education being at the top of the list.

I am concerned that mandatory penalties can at times lead to an injustice and I ask whether it is best to leave the decision to the discretion of the magistrate or judge, depending upon the severity of the crime. They are aware of all the circumstances surrounding the incident. I am advised that judicial officers have sometimes said, in relation to mandatory penalties:

I would like to give you a penalty less than what I am required to do in accordance with the law, because of the matters that you have raised. If I could use my discretion, I would impose a lesser penalty but unfortunately I can't because of the legislation.

Courts can sometimes see the unfairness of a mandatory penalty, depending on the circumstances. They can see that the facts do not warrant the sentence the legislation says must be imposed, but they cannot do anything about it.

These comments will continue if this bill is passed, even though the legislation talks of a 'get out of jail' clause relating to exceptional circumstances. We have heard that exceptional circumstance must be considered in accordance with precedent. Exceptional circumstances can be described as circumstances that are unusual or atypical. If they are not unusual or atypical - if people have acted in the same way on prior occasions, and the circumstances seem to be fairly run-of-the-mill circumstances on which most courts would impose a lesser penalty, but they do not amount to exceptional circumstances, then there is no out.

Nor does this interpretation take into account all matters of sentencing - when fairness would say a person should not go to prison, but the circumstances are not exceptional. If that is the case, even though imprisonment is seen as being unfair, the court's hands are tied. The individual must go to prison. We have been advised today in briefings that courts generally take into account the circumstances of the offence, not of the offender.

My preference would be to, first, accept that we should do all we can to protect police officers doing their job. May I ask the Government - how can the police budget be cut and still provide a safe working environment for police officers? We should also protect the rule of fairness, and understand that the exceptional circumstance clause does not always encompass circumstances where it would be patently unfair to send a person to jail.

I accept that this legislation is all about imposing mandatory penalties and while I do have a problem with mandatory penalties, I do not want to appear to be not supporting the police in their difficult duties. I also do not want to turn my back on what may be an unjust decision and a person having to serve a penalty totally out of kilter with the circumstances leading up to and in relation to a particular incident. Has the Government considered lifting the maximum penalty even further to show the courts that Parliament considers assaults upon police to be a very serious offence? I note that it is now two years, but it could go higher. The Government's wish to send a message to people that they cannot assault police officers, and if they do the courts will impose severe penalties, can be achieved by increasing the penalties presently available.

Courts are then aware that Parliament expects penalties to be severe and can react accordingly, but they are still able not to impose sentences that are patently unfair. This would allow exceptional circumstances and other matters to be taken into account when a judge or magistrate imposes a penalty. Having said that, I accept that the penalty in some cases is already 21 years. As has been mentioned in the briefings, many of these cases are not sent to the Supreme Court for a variety of reasons, including cost, and thus do not attract such penalties

The late Peter Underwood AC, when opening the 2014 Biennial Conference of the Alcohol, Tobacco and Other Drugs Council of Tasmania on 7 May 2014 said this about mandatory sentencing, and I quote:

Recently here in Tasmania there has been much discussion about mandatory and minimum sentences for certain crimes and so I thought I would take a moment of your time at this conference to say something about the process of sentencing.

In the absence of mandatory sentencing provisions, when the Parliament creates an offence or crime, it also prescribes a penalty for anyone who commits that offence or crime. The Parliament might enact that for commission of this crime, a person is liable to a sentence of, say, two years imprisonment or a fine of, say, $10 000, or both. That means that two years prison and/or $10 000 are the maximum penalties that may be ordered, and it is up to the judicial officer to find the appropriate penalty up to those maximums. Leaving aside murder, under our Criminal Code the Parliament has prescribed that anyone who commits any crime is liable to be sentenced to 21 years' imprisonment . There is another act of parliament that increases the judge's sentencing options, and that deals with such things as suspended sentences, probation orders, community service orders and the like.

Now, the judge or magistrate has to exercise his or her discretion to find the appropriate sentence up to the maximum. But that discretion must be exercised in accordance with principles that have developed over the years, namely the appropriate sentence must be one that strikes the right balance between the need to punish the offender, the need to deter the offender from repeating the offence, the need to deter others from committing the same crime, the need to rehabilitate the offender and the need to mark the public's condemnation of the crime committed.

It will be immediately obvious to you that the difficulty the judicial officer has is that it is seldom, if ever, that any one order will satisfy all those needs. To satisfy the need to condemn the criminal conduct points to imposing an immediate prison sentence, while the need to rehabilitate the offender may call for some kind of drug treatment order. So, in considering what would be an appropriate sentence, the judge bears in mind all those needs and then looks at all the circumstances of the particular case under consideration, and tries to strike the right balance between those competing needs. This is called an exercise of judicial discretion, and it is informed by all the circumstances of the crime and all the circumstances of the offender. For example, how serious was the crime? How badly affected was the victim of the crime? What were the consequences of the crime to the victim's family? How old was the offender? Has he or she any prior convictions? Does the offender have any mental health issues, and of course, what is the causal connection between the commission of the crime and drugs or alcohol? The judge has to balance as best as he or she can all those competing issues which will tug in different directions for every individual case.

I say all this at the start of this conference because, although successful treatment for alcohol and/or other drug abuse would certainly be rehabilitative for an offender, and also be likely to deter him from offending again, if the crime is a serious one or if the victim's family suffered badly from the criminal conduct, public opinion may say: but what about punishment for what the offender has done, and what about retribution? Public opinion is likely to say there is not enough attention being paid to satisfy those needs of the sentencing process.

In conclusion, he adds -

The public has an interest in the criminal justice system, and if the courts fail to heed properly informed - and I stress that - properly informed criticism of the judicial exercise of the sentencing discretion, the independent judiciary will lose its authority and may result in the Parliament stepping in to fix minimum penalties to the great detriment of our society.

I also note the Sentencing Advisory Council's final report no. 2 , which recommended increases to maximum penalties for offenders who assault police, but casts doubt on the effectiveness of mandatory minimum sentences. In submissions to that report I note that Ambulance Tasmania submitted that it does not believe mandatory minimum sentencing and penalties are appropriate in relation to these offences, and would prefer that each offence is dealt with in relation to its own unique circumstance and situation by the courts. I find that interesting, considering the Government will move to other emergency services if this bill is successful.

Judges and magistrates are appointed because of their experience and their knowledge. We have confidence in appointing them; should we not have confidence in their decision-making? I will listen to other members, but fundamentally I am opposed to the principle of mandatory sentencing and I am concerned that once mandatory sentencing is passed in any bill, it will be the start of a landslide.