Justice Legislation (Mandatory Sentencing) (No 57) of 2019

Thursday 10 December 2020

Second reading speech

[11.30 a.m.]

Ms ARMITAGE (Launceston) - Mr President, the issue of mandatory sentencing is a deep and complex one.

I have spoken on similar bills in the past and there exists a tension in my mind between mandatory sentencing as a concept and the merits of each bill that comes before the parliament.

I do not want to vote against a bill such as this because I have a blanket aversion to mandatory sentencing. I think that does a disservice to the community which provides a government with a mandate to enact such policy as this.

However, I think it's very important to drill down into the bill itself to understand how it will work and whether it will have its practical intended results.

The bill we are dealing with here relates to significant and serious offences and imposes mandatory minimum terms for the crimes of rape and sexual offences against young people, including whether there is an element of aggravation, as well as on offences that result in serious harm to frontline workers.

The prescribed periods of up to four years for rape and aggravated sexual offences are significant periods of time, as is a mandatory six-month minimum sentence for causing serious bodily harm to frontline workers.

I believe, and have said before, that I worry that having minimum mandatory sentences for offences such as these has the potential to result in a greater number of protracted criminal cases ending up in our courts.

If a person charged with one of the offences contained in this act knows that if they plead guilty they will automatically go to jail, they will plead not guilty and force the Crown to make its case beyond a reasonable doubt.

The ill effects of this are twofold: the first is that the prosecution could reassess the charge against the perpetrator to an offence which does not carry a mandatory sentence, in which case this legislation is moot. The second is that such a case does go to court and the victims, particularly children or people suffering mental or emotional trauma, will be forced to make detailed and painful testimony that might have been avoided if the alleged perpetrator could make a plea bargain, for example.

Each of these cases are a negative as a result of this piece of legislation. I know that it is a highly arguable and contested concept but we also should consider the effects that legislation such as this has on the separation of powers between the executive, legislature and judiciary.

On the one hand, one could argue that overly prescriptive legislation undermines the inherent separation between judiciary from the executive and legislature, thereby reducing its independence.

We invest in our judiciary the extremely important function of interpreting and applying the laws we make in this place. It is a fundamental principle of an advanced pluralistic democracy, such as ours, that the makers of law do not interpret and apply it.

On the other hand, we already have legislation which guides and directs the judiciary on matters such as the Sentencing Act, which already has this function.

I question whether mandatory sentencing leans too far the wrong way and what implications that has on the confidence we invest in our judiciary. I am not stating any particular leaning one way or the other here. I am simply pointing out the arguments at play.

Conversely, proposed new section 16E provides the court with discretion to determine whether exceptional circumstances exist and therefore whether any mandatory sentencing should be applicable at all. Any defence lawyer worth their salt will use all the case law at their disposal to demonstrate that exceptional circumstances exist for their client if they are charged with one of the offences in this bill.

It just comes down to how well the case is argued and how well they can convince the judge. We could not possibly begin to predict how this provision may be used so if taken to its logical conclusion, giving the court this discretion could render this bill and the entire concept it is based upon pointless.

In contrast, however, the offences listed in this bill are very serious ones which frankly deserve commensurate sentences. We should consider the human element, particularly where vulnerable young people are involved. The significant and lifelong harm that sexual offences, rape and aggravated circumstances can have should not be understated.

People who are harmed in this manner as children have to live with the consequences for their entire life. For many victims moving towards healing necessarily means the perpetrator ought to be punished. This is why so many victims struggle when their perpetrator dies before being charged with their crimes. It takes away a large element of closure. Mandatory sentencing arguably addresses this. The community also rightfully has the expectation that people who cause harm in the community, whether it be to frontline workers or to young people, will be put away and, if possible, rehabilitated.

This is why I imagine the Government put forward this bill as a product of the constituency's mandate when it was voted in. It certainly listened to the member for Rosevears - and I read the letter. We received a couple of letters from victims and associated groups that represent victims. It is a difficult one and I understand - I am against mandatory sentencing, but I still believe it is important to take each bill on its merit.

One thing we can all agree on is we want less harm to be taking place in our community and that sexual offences, rape and aggravating circumstances where young people are involved or harm is done to our frontline workers are particularly distressing and thus particularly deserving of a commensurate penalty. Whether this bill will achieve that aim, I am unsure. I feel there are questionable practicalities and consequences we cannot possibly foresee that have the potential to undermine its entire point. I also believe we need to have confidence in our judiciary, our experts in interpreting and applying our laws to maintain the robustness of our democracy.

As mentioned, I find I could go either way but in this particular case, because, I believe, of the seriousness of the situation - particularly with our vulnerable, our young people and also our frontline workers who put themselves in harm's way all the time, our police and our firemen. If you look at those two groups it has often been said, and it might be the member for Windermere who said it, that they go in when everybody else is running out. When we are seeking safety, our frontline workers are going in. It is important we protect them and also our ambulance officers. How many times have we heard that an ambulance officer at what could be a life-threatening incident is assaulted by people who are there possibly supporting the injured person or even the injured person themselves?

It is a difficult one but, on this occasion, I will be supporting the bill.