Criminal Code Amendment Bill 2008- Second Reading debate

I begin my comments on the Criminal Code Amendment Bill 2009 by placing on record that, in opposing this bill, the Greens (WA) are not suggesting that violence towards police officers or any other public officer, or in fact anyone at all, is acceptable. Our police, nurses, prison officers, ambulance officers and teachers all deserve to be safe at work, as do our cleaners, bus drivers, lab technicians, gardeners, electricians and, I might suggest, even politicians. All workers deserve to be safe at work. I have a long history of working towards upholding workers. safety. All people should enjoy the fundamental right to live their lives free from violence at work and elsewhere.

I take exception to the Leader of the House suggesting that alternative solutions have not been proffered by the Greens, and indeed a number of experts around the world, to the sorts of measures that have been proposed in this bill. I thank Hon Philip Gardiner for acknowledging in his contribution that Hon Giz Watson in her response to this bill suggested a number of alternative strategies to address assaults. I note that he also suggested a few of his own. If people missed what Hon Giz Watson had to say on behalf of the Greens, I suggest they read Hansard.

Part of my frustration with this sort of legislation is that I think it is a distraction from the debates that we need to have in seeking real, long-term solutions to violent assaults against anyone, including our police and public officers. The Greens support real measures to achieve safety at work, and always have, but this bill will not do that, as is evidenced in other jurisdictions that have tried to enforce such measures.

Sometimes, perhaps most times, although it is not for me to say, jail should be the result of serious assault against anyone. This debate has never been about suggesting that jail as a penalty for assault should never occur. It is about the removal of judicial discretion. It is about trying to pretend that, when we are meting out justice, we can ever determine that one size fits all in something as serious as sending people, including children, to jail. I want members to be very clear that we are talking about children. I refer members to section 29 of the Criminal Code if they are in any doubt. I also refer to the current law under the Sentencing Act 1995; I think we have actually got it pretty right. Section 6, .Principles of sentencing., states .

(1) A sentence imposed on an offender must be commensurate with the seriousness of the offence.

(2) The seriousness of an offence must be determined by taking into account .

(a) the statutory penalty for the offence;

(b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;

(c) any aggravating factors; and

(d) any mitigating factors.

Section 6(4) states .

A court must not impose a sentence of imprisonment on an offender unless it decides that .

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it.

Section 7(1), .Aggravating factors., states .

Aggravating factors are factors which, in the court’s opinion, increase the culpability of the offender.

Section 8, .Mitigating factors., states .

(1) Mitigating factors are factors which, in the court.s opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.

(2) A plea of guilty by an offender is a mitigating factor and the earlier in proceedings that it is made, or indication is given that it will be made, the greater the mitigation.

If I were representing clients charged under the provisions within this bill, I would never recommend that they plead guilty. There would be no point. There is no incentive. The incentive to plead guilty, and thus prevent clogging of the courts and allow victims of assaults to avoid painful court proceedings, has effectively been removed. Opposition to mandatory sentencing does not constitute opposition to sentencing. This opposition is grounded on the understanding that there is no such thing as .one size fits all. in justice.

Hon Giz Watson has spoken at length about the many and myriad concerns about moves towards mandatory sentencing, and the Greens (WA) have a long history of trying to bring this perspective to our law-making. I will not repeat everything that she has so clearly articulated in such an informed manner, other than to say that I of course completely agree with those informed views. These views are shared, incidentally, by people who are the most informed on such matters; criminologists, people who work with prisoners and people who work in the law.

I will not suggest that this bill does not resonate with many people in the wider community. People are genuinely sick of the perceived rise in violence, and the actual violence they see around them. I am sick of it also, but that is no excuse for the introduction of bad laws. These are bad laws, primarily because mandatory sentencing does not work, but also because it risks the denial of justice. Mandatory sentencing can have the effect of exposing people to a culture of crime to which they would otherwise not have been exposed. I am thinking primarily of child offenders, but of course it can also apply to adults. I am also concerned because this has the potential to tear families apart.

The beauty of our rule of law has always been that it deals with each case as it arises on its individual merits. We are now gutting a fundamental premise on which our laws, culture and sense of justice has been founded.

I wish to share a story with members; it is one of many that I have heard over many months. I will relay it almost verbatim, with only the circumstances of location removed. It is from an email that I think a number of members have received, but I will relay the story anyway.

A criminal lawyer recently acted for a woman charged with assaulting a public officer. She had pulled a clump of hair from a female police officer’s head. I will not cite her name, although her circumstances were raised in open court. She was in a public place with her partner and four children. She and her partner had been drinking. He assaulted her in public and in the presence of their children by pushing her to the ground and not letting her stand up. There was a 15-year history of domestic violence. She became hysterical and the family was evicted from the public place. Walking from the public place, she was still crying and yelling, and attracting attention. Police attended and arrested her for being disorderly. She raised an arm at a police officer as if to strike him and he, many times larger than her, arrested her, forcibly taking her to the ground and handcuffing her. The lawyer has watched video footage of the incident. She suffered bruising to her legs and back and told the lawyer that she could not walk for several days. A few minutes later in the back of the paddy wagon she grabbed the hair of a woman police officer and in the struggle pulled some from her head. Some weeks after this incident, her partner of 15 years died from a drug overdose and she and her teenaged son discovered the body. She was left with four children and no income and had to move house to be near her family. In the associated stresses she suffered a stroke and was hospitalised. By the time of her sentencing, she was on the mend. She was being treated for her long-standing depression, the stroke had forced her to stop drinking and smoking, resulting in other improvements in her health, and her children had settled into a new school and were enjoying renewed contact with her family. Her 15-year-old son had started to attend school for the first time in about a year. He had also been a victim of domestic violence. She was a prime candidate for a period of community supervision. She did receive a period of community supervision and to the lawyer.s knowledge has not reoffended. These are the results the community wants from the criminal justice system. Had mandatory sentencing applied, she would have received a term of imprisonment and these children having just lost one parent would lose another. Whatever stability they had recovered would have been snatched from them. The improvements she had wrought would have been lost and this woman with no relevant criminal history would have been imprisoned at huge expense to the community where she would be exposed to negativity and criminality she had never seen before. The sentencing process required the utmost discretion. She was not sentenced by a lenient magistrate and the lawyer does not consider her sentence a lenient one. She had no record and there were all sorts of reasons why she offended. Those reasons were addressed when discretion was applied resulting in the correct position. The lawyer asks: please do not remove that discretion from judicial officers.

It is these sorts of stories that bring home the harsh reality of what this Council potentially allows to pass. What this woman did to that police officer is not okay and I am not suggesting that it is. If anyone were to suggest that is what I was saying, that would be mischievous and misleading. However, this woman was sentenced and she had to get her act together. Most importantly, her children were finally able to potentially have a positive life. Imagine how terrible it would have been after everything those children had already been through if they had then lost their mother to mandatory imprisonment just when she was getting her life back in order. I will talk a little more about children and this legislation. I will talk about my deep concern specifically about the inclusion of children being mandatorily sent to prison. The Greens (WA) will move an amendment.in fact, I believe members have that in front of them now.to exclude children from this legislation. Do not get me wrong; I think the whole bill needs to be scrapped, but at this desperate hour we will at least try to ameliorate the absolute worst of this appalling and draconian bill, a bill, I might add, that I believe is driven by anger and vengeance, not by an abiding commitment to justice. I was dismayed to hear in question time this evening that the Commissioner for Children and Young People was not even consulted. I share Hon Giz Watson.s concerns that the commissioner.s opinion was not even sought. Like Hon Giz Watson, I ask: what is the point of having a Commissioner for Children and Young People if we are not even going to seek her advice on something as important as legislation that is potentially going to send children immediately to jail? I would argue the inclusion of the compulsory jailing of children is potentially contrary to a number of treaties to which we are party, in particular our obligations under the United Nations Convention on the Rights of the Child. In the words of the parliamentary Joint Standing Committee on Treaties .

Mandatory sentencing does not take into account the child.s age, the facts of the current offence, the individual circumstances of the person, consideration of an appropriate period of time or the application of judicial discretion. Mandatory sentences restrict the court.s capacity to ensure that the punishment is proportional to the seriousness of the offence and in relation to the rehabilitative options. Put simply, how can we ensure that justice is served and that we are protecting our children if we are not even allowing for individual circumstances to be considered? Where is the consideration for the rehabilitation of our young children including those who may have offended only once? Where is the consideration of the individual circumstances of our troubled children when we are determining how long we are imprisoning them or whether it is even in the interests of that child to be imprisoned at all?

This bill that is in front of us appears to run contrary to Australia.s obligations to children under articles 37(b) and 40(4) of the Convention on the Rights of the Child, to which Australia is a state party. Article 37(b) states . No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; The bill that is before us makes detention mandatory. It is the only measure available to the courts; hence, it is, of course, in no way only a last resort. One could also argue about its arbitrary nature. It also allows little discretion regarding the period of detention. Article 40(4) of the Convention on the Rights of the Child states .

A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence. This bill fails to provide any of the variety of dispositions mentioned, and it does not allow discretion to ensure appropriate and proportionate treatment of children.

I am also concerned about Australia.s other international obligations with respect to mandatory sentencing. Article 14(4) of the International Covenant on Civil and Political Rights states .

In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

Article 14(5) states .

Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

Arguably, this bill does not comply with either of these articles. Instead of applying increasingly punitive measures and instead of buckling to simplistic and populist measures, we need to focus on the need for more appropriate programs that serve to prevent these sorts of crimes in the first place. Far from protecting our generations of the future, increasing detention rates through mandatory sentencing will put more young Western Australians in a position in which they are exposed to criminal influences at a very young age.

I will read a quote from The West Australian of 4 July this year attributed to Chief Justice Wayne Martin in noting that much of the crime that is coming before the courts has been committed by young people when they are under the influence or alcohol or drugs. Chief Justice Martin is reported as saying . Rational processes of reasoning, of the kind that we might employ, are irrelevant to these offenders. . Programs that support young people at risk of offending even before they become involved in the criminal justice system are likely to enhance the protection of the community more effectively than increasing juvenile detention.

I am not sure how many members saw the recent television report about the midnight basketball program that is being run in my electorate. It is quite uplifting. The program has reportedly resulted in less antisocial behavior and lower crime rates in the area. It has also had a significant positive effect on the relationship between police and youths. It is a program that helps deal with the causes of crime. It rewards people demonstrating appropriate behaviour in our community. In contrast, the bill that is before the house is likely to have a negative impact on relations between youths and police. It will, of course, result in an increase in the number of these youths who end up in detention. The implications for these young people are severe. After a jail sentence, employment prospects are prejudiced, and the young person is at a distinct disadvantage. This can foster resentment and contempt for society, leading to more significant criminal and antisocial outcomes, which I do not think any of us want.

The racial dimension to mandatory detention must also be highlighted. While the bare words of this bill do not target, obviously, a specific segment of the population, mandatory detention and sentencing have a drastically disproportionate impact on incarceration rates for Indigenous Australians. This is going entirely in the wrong direction. We should be focusing on decreasing the rates of Aboriginal incarceration rather than increasing them. We are all aware of the horrendous figures. Aboriginal males are 20 times more likely to be in a WA prison than their non-Aboriginal counterparts. These laws will result in the increased removal of Aboriginal children from their homes. In many cases, they will be sent thousands of kilometres away to the Rangeview Remand Centre. This bill is also contrary to recommendation 92 of the 1991 report of the Royal Commission into Aboriginal Deaths in Custody that called on states and territories to ensure that imprisonment was a sanction of last resort. I implore members of this house to give serious consideration to supporting the amendment; at least to remove children from this bill. I ask members to think about the children in their lives and to contemplate whether any of those children have ever run off the rails or just been downright stupid, or ever abused drugs or alcohol, even as a one-off. Maybe it was even you who was an idiot as a child or a teenager.maybe even once. Sometimes adolescents who assault someone else deserve to be put in jail.I have said that already.in which case that is where they should end up. Existing laws most certainly allow for that. But with this bill, no matter what the circumstances of the incident might be or whether there are mitigating circumstances, consideration is not given to any of these things. That is what it means to make it mandatory. I have said it once, and I will say it again. these are bad laws. Please do not be a part of making them, but, at the very least, please take children out of it.