Police powers and related legislation (Evasion) BILL 2017 (No. 20)

Ms Armitage (Launceston) - Mr President, the Commissioner for Children and Young People was very good at the briefing. He said children less than 18 years are different from other offenders because of their inexperience. We should be looking at emphasis on diversionary processes, avoid contact with the court system and use custodial sentences as last resort.

That is difficult. They do not necessarily look like children, as our officers know. When I am called to attend as an independent person, which I have been doing for about 10 to 15 years, the children I see at the police at two or three in the morning might be 14 or 15. Had I not been told their age, I would think they could be 18 or 19. They do not look like children. When I hear the word 'children', I think of a small child, but often the people who have done these crimes look anything other than children.

A few months ago I had one that was picked up by the police after he had crashed the final car he had stolen. He and some 'colleagues' had stolen six cars during one evening. Every time they would crash a car, they would go and steal another one. They evaded police several times that night and were only caught when the final car crashed and the people in the car had to go to hospital. On asking him why he did it, he said he could not see a problem at all. The car crashed and he needed another one.

I see this and I see children - and I think a lot of these kids should not go to court. I think of many of the cases I have experienced late at night or sometimes during the day, and they are not always under the influence. Sometimes they really do not care. I am concerned about what could be considered mandatory sentences, but I also take on board that it is either/or and it is not necessarily a term of imprisonment.

I asked a question privately earlier and the answer is really good. I will ask you a question so that it goes on Hansard. It is to do with the sentencing. For any of these - for example Part 2, clause 5 - Section 11A amended (Evading police), which states -

(b) a second offence, either or both of the following:

(i) a fine of not less than 20 penalty units and not more than 100 penalty units;

(ii) imprisonment for a term of not more than 2 years…

Can the imprisonment be suspended? I understand it can because it does not say 'not suspended', so that a magistrate has the ability to choose both if they think a term of imprisonment is deserved. This might be the third or fourth time it has been done, but the magistrate might not really want to send that person to jail for two years. The term could be for two months. He has the ability to give a jail term of two years with 18, 20 or 22 months suspended. He is still going along with the terms of the bill, but not necessarily giving the full brunt of it.

This allows the magistrate or judge the discretion to cut that back. The same applies to 'imprisonment for a term of not less than 6 months'. As the member for Mersey's amendment mentioned, they can give six months, even wholly suspended. They do not have to give the full penalty even though they would prefer to give that rather a monetary penalty which they know these young people cannot pay. They know they cannot afford it. They know the parents do not have the money, but they want to set a reasonable penalty so they know they have done something fairly bad and dangerous. I think that is important.

I understand where we are coming from. When they evade police - I am thinking of many evasions using motorbikes in the bush - they are very hard to catch. From statistics, we know very few are caught.

Mr Gaffney - Could you ask the question because it says, 'Not less than 6 months' - so the question is: can a judge with a 10-month term instead of six only go to four months?

Ms Armitage - They can. I have already asked that privately.

Mr Gaffney - Because it says 'no less than 6 months', does that mean the judge can allocate in effect a two-month sentence or a month at best?

Ms Armitage- You heard that. If a judge wants to give a lesser sentence, it has to be six months, but if he only wants to give two, four months would be suspended.

Mr Gaffney - Thank you.

Mr Willie - As long as they are suspended sentences still.

Ms Armitage - That is the question. I had that discussion with the member for Elwick. I am comfortable if a judge can suspend a sentence. If suspended sentences go out the window, we have the problem of the judge or the magistrate having no discretion. I appreciate we have to work on the bill before us and not legislation that may not get up in the future.

The member for Elwick mentioned one case of evading police, where someone had gone through a red light twice. Anyone who goes through a red light is putting anyone and everyone at risk. They just have absolutely no idea who is coming and who it could be. Our thoughts go back to the awful case in Hobart a couple of years ago.

I looked at some of the others and took copious notes during briefings. Ten per cent of all evading drivers are repeat offenders, responsible for 23 per cent of all the offences. I do not have a problem with the part that deals with 17-year-olds having more driving offences against them. A driver's licence is a privilege, not a right.

Having a car at 17 is a great thing for many people, but it comes with a lot of responsibility. If they are already held responsible for things like burnouts, they should be responsible for more serious things.

Mr Willie - There seems to be a conflict with the Youth Justice Act and people being able to get their driver's licence and having that responsibility. Obviously there is the United Nations Declaration of the Right of the Child. That one year is proving problematic in a way because they still are children, but are allowed to get a driver's licence.

Ms Armitage - In Victoria you cannot get a driver's licence until you are 18, which is interesting when every other state allows younger drivers.

Mr Willie - Yes, that is right.

Ms Armitage - Maybe they need to change the age of a child, whether it goes back to 17 rather than 18.

Mr Valentine - That is a policy issue. It would have to come from the Government.

Ms Armitage - Yes, it is a policy issue. Perhaps a child could go to 17 rather than 18, if the Acting Leader could look at something like that. It would be a bold move.

Mrs Hiscutt - I need to get on record that it is not Liberal Party policy to -

Ms Armitage - No. It is a tongue-in-cheek comment.

Mr Valentine - It is an observation.

Ms Armitage - Yes. I have been in the situation of seeing many of these offenders. If I did not go into police stations and see these offenders, I would possibly look at things very differently. When you go in, you see both sides of the scale. I remember seeing a boy of about 14 - and this is what makes me wary of this bill - and the police saying to me, 'Look, he is a really good kid, but he has evaded police.' He had not been in a motor vehicle; at this time he was only on a pushbike. I am sure he would have been on a motorbike if he had one. It just depends what vehicle is available. He had evaded police several times, and his reasoning when I asked him why he had done it was that he had a curfew. The first time the police came for his curfew, he was not there. After that he was there, but he hid because he knew he was in trouble. So when they saw him out on the streets, he evaded them, several times, only because he was afraid of what would happen to him for breaking his curfew in the beginning. So he compounded it by being scared of being caught.

The police have said, 'This kid is a really good kid; he is not a bad kid'. He kept compounding what he had done because he was afraid of the circumstances. Every time he did it made it worse. He was only quite young. It was a very unfortunate story. I see a lot of those that are really sad.

I asked him at the time what school he went to and he named a primary school. I said, 'But you're of high school age'. He had never been anywhere but Ashley and had no friends who were not at Ashley. I am cognisant of the fact that it was mentioned by one of the other members about who they meet when they go into the justice system. This boy had said, 'I have no friends that haven't been to Ashley' because other people did not want him associating with their children. So the people he was not allowed to associate with were the only ones he actually got to associate with.

I can see both sides of the coin. I can remember very clearly another case where there was a girl and boy in a car chase. They had stolen the car from Launceston and had driven to Hobart - from memory, they drove from the north-west. The girl had phoned her mother to say, 'You'll get a phone call either from the police station or the hospital because we were in a car chase'. She told me that in the police station.

A lot of these youths do not take it seriously. They see it as a game and I am really concerned about that too - if people know they have stronger penalties whether they will think about that when they are high on adrenalin.

Mr Valentine - Or something else.

Ms Armitage - It could be something else. In the case of these two, they were not on anything apart from enjoying the fact that the police were chasing them. From memory, they were throwing tools out of the car at the police car. It was a stolen car and they were throwing things out to stop the police car catching them. Eventually, I think they crashed.

Mr Valentine - That was somewhere near Poatina. Was that the one?

Ms Armitage - No. I have been doing this for many years. It was quite a few years ago. I could only imagine the mother getting the phone call. She did not want to turn up, she was over it.

If people think that if they get caught they will or could go to jail, it may encourage them to try to evade police even more. They would think that if they get away with it by not getting caught then they will not go to jail, particularly if it is a stolen car.

Ms Forrest - That is the reason they take off quicker.

Ms Armitage - That is the situation. I would be pleased, Acting Leader, if you could tell me about suspended sentences. My understanding is that all these sentences can be suspended, which makes the bill much more palatable. I have some concerns about whether it might increase the number of people trying to evade police, if they have to go to jail. Our jail system is already quite overcrowded.

Also, as the member for Elwick said, they are then being put in and mixing with people you would prefer they did not and learning more skills. The Commissioner for Children felt that more diversionary tactics could be used.

I am interested to hear amendments from other members.

Ms Forrest - During your speech we sorted it out.

Ms Armitage - That is good. I look forward to hearing the debate. I am prepared to vote it into Committee to see how we go with amendments.