SENTENCE ADMINISTRATION AMENDMENT BILL 2017

Tuesday, March 13, 2018

Second Reading

Resumed from 15 August 2017.

HON MICHAEL MISCHIN (North Metropolitan — Deputy Leader of the Opposition) [2.34 pm]: Welcome back, Madam President. I rise as the lead speaker on behalf of the opposition in respect of the Sentence Administration Amendment Bill 2017 and to indicate our support for the bill. [Further comments]

HON ALISON XAMON (North Metropolitan) [3.36 pm]: I rise as the lead speaker on behalf of the Greens. The Sentence Administration Amendment Bill 2017—or the no body, no parole bill as it has come to be commonly called—will require that the Prisoners Review Board, when considering whether a prisoner who has been convicted of a murder or homicide-related offence should be granted an early release order and also when the location of the body is unknown, not make an early release decision or recommendation unless it is satisfied that either the prisoner has cooperated with the police to identify the location or the last known location of the victim’s body, or a member of the police knows the location of the victim’s body. It is proposed that this will apply to prisoners who have been convicted of murder for counselling or procuring the commission of murder, inciting another person to commit murder, or becoming an accessory after the fact of a murder having been committed, or conspiring with another person to commit a murder insofar as those offences relate to the death of somebody. The bill is going to apply regardless of the date of the offence, so it has retrospective capacity. The bill will apply to all early release decisions or recommendations—that is, both parole and re-entry release orders, formerly known as work release orders—although, as I understand it, no prisoner was released on re-entry release orders either last financial year or in the preceding financial year.

In relation to the proposed process, pursuant to proposed section 66C, the board will request a written report from the Commissioner of Police. The report must be provided within a reasonable time and must cover the nature and the extent of the prisoner’s cooperation; the timeliness of the prisoner’s cooperation; the likely truthfulness, completeness or reliability of the prisoner’s information or evidence; the significance or usefulness of the prisoner’s cooperation; and, whether a member of the police knows the location of a victim’s body. The board will then take those matters into account in making its decision under proposed section 66B. The offender may disclose the location to a third party but under the provisions of the bill, the offender must also ensure that this information is subsequently brought to the attention of the police. This has been considered by the Standing Committee on Legislation. I note that the report stressed that the bill does not change the way early release is considered. Rather, the bill is introducing a precondition that must be met before early release can be considered. Simply, if the precondition is not met, the board will not make a release decision or a recommendation. If the precondition is met, the board will consider early release and the usual considerations with their usual weighting will apply. Therefore, according to the committee, safety of the community continues to be the paramount consideration for the early release of prisoners. I note that the report states that only a small number of prisoners will be affected by these provisions—around 14 people.

As members would be aware, a range of existing mechanisms allow the circumstances of individual cases, which may include the prisoner’s failure to disclose the whereabouts of a victim’s body, to be taken into account by decision-makers. This is already in place. For example, courts may—realistically, they often do—consider remorse, cooperation and the identification of the location of the body when sentencing an offender to a term of imprisonment. Parole boards are required to take quite a comprehensive range of things into account when making a decision to grant an early release order. I will discuss this in more detail in a moment. For prisoners who are serving life or indefinite sentences, the recommendations of the Prisoners Review Board go to the Attorney General, who can choose not to accept that recommendation. We already have a range of mechanisms to assess individual cases and to encourage prisoners to do the right thing. I am acknowledging that making sure that someone’s body can be recovered is absolutely the right thing to do. I also acknowledge that sometimes some people choose not to do so. Indeed, should the bill before us be passed, I note that people can still continue not to do the right thing.

I want to make some comments about the Prisoners Review Board. As I noted earlier, WA’s parole board, the Prisoners Review Board, is already required to take a range of things into account when making a decision to approve, recommend or deny an application for an early release order. As noted in the committee report, the jurisdiction of the Prisoners Review Board does not extend to a royal prerogative of mercy whereby the Governor may pardon a prisoner and also make a parole order for that prisoner. It does not extend to release on parole of prisoners with life or indefinite sentences. In WA, like other Australian jurisdictions, this power lies with the Governor upon recommendation of the Attorney General following receipt of a report by the board. That was one of the committee’s findings. It extends to prisoners transferred to WA from interstate as though they were convicted within Western Australia. Later I will speak to an amendment pertaining to this class of prisoner.

Release considerations are provided for in section 5A of the Sentence Administration Act 2003 and include the circumstances and seriousness of the crime committed. Importantly, they also include the remarks by a court. Very often we will find that courts have already taken into account issues of remorse and cooperation and whether the body of a victim has been recovered. They also take into account issues relating to any victim if the prisoner is released, including any matter raised in a victim’s submission. It will invariably be the case that when a body has not been recovered, this will be raised by the person’s loved ones. The courts also take into account whether the prisoner has participated in programs when in custody—I have some more to say about that—and also any other consideration that is or may be relevant to whether the person should be released. Invariably, that will already take into account issues of cooperation and reviewing where the body of someone may be. Last year’s Prisoners Review Board annual report stated —

The Board takes into account the individual merits of each case to determine whether to release a prisoner to parole. Before making its decision, the Board may review reports from Community Corrections Officers, Custodial Staff, Treatment Programme Facilitators, Victim Support Organisations, Medical Practitioners, Psychologists and Psychiatrists. In addition, the Board examines the prisoner’s criminal history, any comments made by the sentencing court, and any victim submissions, statements and reports from the Victim–Offender Mediation Unit. In making decisions to grant, deny, suspend or cancel parole the Board gives paramount consideration to the safety of the community.

Although currently a prisoner who is not cooperating with police would not automatically be precluded from being considered for parole, it could be a factor and is likely to be a factor that militated against a grant of parole. Furthermore, lack of cooperation could also inform an assessment of remorse and rehabilitation. I acknowledge the committee’s comment that it found no evidence that the Prisoners Review Board already takes into account the prisoner’s cooperation with police in considering whether to grant or recommend parole. That being said, as also indicated in the legislation committee’s report, there is no evidence that the Attorney General has ever released a prisoner on parole in the absence of cooperation with the police to locate the victim’s body. My parliamentary colleague Hon Michael Mischin has already elaborated on that particular point in great detail.

Page 104 of the committee’s report contains a letter to the committee from the board’s chairperson, who advised that in the five and a half years that he has chaired the board, no murderer has been released when the body remained lost through the offender’s lack of cooperation. That is not particularly surprising. No earlier such cases come to mind, although he cannot be certain due to a digital record search being impossible. Despite the high profile of the bill, to his knowledge, not one person has come forward expressing anger or concern about any such release in the past. It is not really clear whether the bill will make any substantive change to the number of prisoners who are already being granted parole.

I wish to make some comments about the victim impact statements. The Greens firmly believe that the interests of victims need to be an important element of parole decisions; indeed, they currently are within Western Australia. Since 2013, subject to the approval of the victim, all victim impact statements used in court were automatically provided to the Prisoners Review Board for inclusion in the files of relevant prisoners. As noted in the board’s last annual report, a victim impact statement is now frequently considered as part of the material relevant to the board’s determination of whether to release a prisoner on parole; and, if so, the particular conditions to which the prisoner’s release should be subject. This has improved the board’s capacity to understand the impact of the offence on the victim and the nature of the victim’s concerns arising from the offender’s release and enabled the board to better respond to those issues.

I want to talk a little more about the function of parole and the importance of maintaining the integrity of our parole provisions. One of the significant concerns the Greens have about the legislation before us relates to its potential to undermine our parole system. The parole system provides a really important mechanism to supervise and support the transition of prisoners back into the community in a way that seeks to minimise the chances of them reoffending. It is intended to assist the community to be safer. Contrary to a popular misconception, parole is not actually about shortening a prison sentence. Parole is a way of letting approved prisoners—it is strict about who is eligible—serve part of their sentence in a community once the Prisoners Review Board decides that they are not an unacceptable risk to community safety.

The Sentence Administration Act 2003 provides that the safety of the community is the paramount consideration in decisions regarding the release of prisoners. When granting conditional release, the Prisoners Review Board may require that the parolee is to be supervised, participate in treatment programs, attend counselling, actively seek employment or participate in training, or engage in a host of activities to facilitate their successful re-entry into the community. The board can also recommend that a prisoner participate in a resocialisation program before being released.

I note that the issue of institutionalisation has already been mentioned. It is a very real risk for people, particularly for people who have served long sentences. An obligation to undertake resocialisation becomes a paramount consideration in ensuring the safety of the community. The Prisoners Review Board policy manual articulates, in part —

The Board’s power to impose conditions (or requirements as they are called under the Act) to protect victims and facilitate the prisoner’s rehabilitation is unfettered and is not limited to addressing only those factors which relate to the current conviction. The purpose of parole is to protect the public (including the victim) and to facilitate rehabilitation of the prisoner.

Decisions made by the Prisoners Review Board can have a really important bearing on successful rehabilitation and how successful the prisoner is on release, and it also has a huge impact on the likelihood of a prisoner reoffending. For example, under the Prisoners Review Board’s policy manual, if a parole plan is considered by the board to be deficient—for example, if there is no suitable accommodation for the prisoner—the board will deny release on parole. Again referring to the policy manual, it states —

The Board is required to consider the merits of the proposed parole plan in determining the degree of risk the prisoner is likely to pose to the community, the likelihood of the prisoner re-offending whilst on parole, and the likelihood of the prisoner complying with parole requirements. An appropriate parole plan is one which is sufficiently robust such that the Board is satisfied that the risk of the prisoner re-offending is adequately managed.

I remind members that the scope of this legislation does not pertain simply to people who have been convicted of murder; it also relates to those who have been convicted of counselling or procuring the commission of murder, inciting another person to commit murder, becoming an accessory after the fact of murder, or conspiring with another person to commit murder insofar as these offences relate to the death of a person. These are a really broad range of offences. The Standing Committee on Legislation recommended amending the bill to extend the provision to include prisoners convicted of manslaughter. The Greens will be opposing that because it does not see that extending already problematic provisions to an even wider range of prisoners is a desirable outcome.

Although I acknowledge that some prisoners covered under the bill before us will not be eligible for parole, others will be. Supervised and supported release of prisoners, or prisoners on parole, is substantially safer for our community. Ultimately, that is what we should be aiming for. If a prisoner knows that they are not going to get parole, they have no incentive to undertake rehabilitative programs while in custody. When they are ultimately released not only without parole supervision but also without the benefit of rehabilitative treatment in custody, the community will lose out. If parole is not granted, I understand the prisoner is simply going to complete their sentence in custody rather than in the community and then be released into the community without any supervision or conditions.

I acknowledge that the Prisoners Review Board has the power to impose post-sentence supervision orders for prisoners who have been found guilty of a number of serious violent offences, including murder and manslaughter, and I note that although this mitigates some of the concerns regarding the impact of the proposed bill on the successful supervision of prisoners after their release from prison, post-sentence supervision order provisions will cover only violent offences. Therefore, given the very broad nature of the offences that are covered by the bill before us, there will still be a group of prisoners who have been convicted of offences covered under this legislation who may end up not being eligible for parole nor being eligible for post-sentence supervision orders with all the risk that that entails. We are talking about a group of prisoners who, by virtue of not being able to establish that they have cooperated to help locate a victim’s body, are not eligible for parole and also, by virtue of their offence not being considered a serious violent offence under the Sentencing Legislation Amendment Act 2016, will not be eligible to have post-sentence supervision orders imposed.

I refer to the Australian Institute of Criminology. It notes that it is expected that offenders granted unconditional release are more likely to reoffend, reoffend more quickly, reoffend more often, and commit more serious offences than offenders released conditionally into the community. A 2014 study that was published by the same institute found that offenders who received parole supervision upon release from custody took longer to commit a new offence, were less likely to commit a new indictable offence, and committed fewer offences than offenders who were released unconditionally into the community. Although I acknowledge that parole is not a reward and it is not intended to be a reward for good behaviour in prison, we also know that parole systems have bearing on the conduct of prisoners and thus have implications not only for rehabilitation and resocialisation, but also for the safety of staff and other prisoners. It helps to maintain the security and stability of the prison environment more generally. We really need to take very seriously any proposals that are seeking to undermine what is a very carefully balanced system.

The impact of more time in prison is discussed within the committee’s report. The report notes that the effect of the bill on time spent in prison will be that prisoners serving a finite prison sentence for the relevant offences and who would otherwise be eligible for parole will spend an extra two years in prison if they do not cooperate in helping to locate the victim’s body. Prisoners serving a life sentence for the relevant offences who would otherwise be eligible for parole will stay in prison for the rest of their natural lives unless they cooperate or are ultimately released under the royal prerogative of mercy. The most recent annual report of the former Department of Corrective Services indicates that the cost of this per day will be $297 for an adult prisoner, which means we are talking about almost $220 000 over two years. I note that if this will result in prisoners remaining in prison rather than being released on parole—even then it is debatable—this is the potential cost of inserting a precondition that has nothing to do with predicting risk to the community, and risk to the community should be one of the paramount considerations.

By removing discretion from the Prisoners Review Board, the Sentence Administration Amendment Bill 2017 will effectively ensure that adequate assessment of the suitability of prisoners for parole will be prevented. We are not even enabling the Prisoners Review Board to consider prisoners who have not met the precondition. The removal of discretion from a decision-maker materially reduces the decision-maker’s ability to respond to the particular circumstances of a given matter. This potentially will create very real complications in individual cases.

There also is limited right of appeal to decisions of the Prisoners Review Board. A request for a review of a decision of the board is made by the prisoner to the board, and the chairperson of the board reviews the decision. Basically, there is no independent oversight of an appeal for a review. Requests can be made only on the grounds that the person who made the decision did not comply with the act, made an error of law, used incorrect or irrelevant information, or was not provided with relevant information. When a request is made, the chairperson of the board must consider any submissions included and review the decision concerned and may confirm, amend or cancel the decision, or make another decision, or refer the decision to the board for further consideration.

I also have considerable concerns about the lack of procedural fairness in the way these decisions can potentially be made. The committee report identifies that the bill does not provide for a prisoner to receive a copy of the police report and have an opportunity to respond to its contents before the board makes its decision. I note that the committee found that the government should consider addressing this. The committee noted that the police supported the rectification of this omission, so I have foreshadowed an amendment to this effect, and I will go into more detail on that when we go into Committee of the Whole.

The explanatory memorandum states that proposed section 66C(5) ensures that the board does not take into account any matters beyond the requirements under proposed section 66C(3), but I am not so sure about that. That proposed section requires the board, when deciding whether it is satisfied for the purposes of proposed section 66B(1), to take into account certain matters. It does not expressly forbid the board from also taking into account other matters, whether in the police report or elsewhere. Provided the matter is relevant that is not necessarily a bad thing, but it makes it even more important that the prisoner has an opportunity to respond to the contents of the police report before the board makes a decision; hence, again, the need for the amendment.

One of the big issues that has been raised and talked about in the broader context of this bill is concern about the risk of continued imprisonment of the wrongly convicted. I know we are talking about a tiny number of people, but for those people this legislation could be absolutely catastrophic. I am concerned that the bill before us has the potential to compound the injustice experienced by those who are wrongly accused and imprisoned for murder and other homicide-related offences. We are all aware that Western Australia has a fairly chequered history with some criminal justice matters, and it has been demonstrated that our system is not infallible. There are a number of examples of wrongful conviction in our state’s recent history—for example, the conviction and 11-year incarceration of Andrew Mallard. If I wanted to also reflect on a particularly dark part of Australia’s history, I would of course think about the wrongful conviction of Lindy Chamberlain and also point out that in that instance little baby Azaria’s body was never found. In circumstances in which a person has been wrongfully convicted, the proposed legislation would prevent them from ever being in a position to qualify for parole, and that does happen. I acknowledge the committee’s finding that this concern does not arise in relation to the bill. The committee was of the view that the Prisoners Review Board is not a forum for the review of verdicts; it treats all convictions as valid, and I recognise that. The committee also found that the proper forum for dealing with a wrongful conviction is an appeal court, not the Prisoners Review Board.

However, I also note that an innocent prisoner—however few there may be—will never be able to meet this precondition, unlike a guilty prisoner, who potentially, allegedly, can be persuaded by the legislation to reveal the whereabouts of a victim’s body. If an innocent prisoner would otherwise meet all the eligibility requirements for early release, this bill is going to cause them to spend even longer in prison, increasing the injustice done, because there will be nothing that they can do about it. They cannot reveal the whereabouts of the body if they have not actually committed the offence.

Professor David Hamer from the law faculty of the University of Sydney notes that as the criminal standard of proof demands a high probability of guilt but not absolute certainty, there is a risk of error that results in innocent defendants being convicted, and it is likely that many wrongful convictions never come to light due to unduly restrictive post-appeal mechanisms. I certainly hope they get changed at some point. I quote from an article by Professor Hamer that appeared in the University of New South Wales Law Journal —

Inevitably, innocent defendants are convicted. In Australia these errors only come to light occasionally, but there is reason to believe that many wrongful convictions remain hidden from view. Analyses of DNA exonerations in the US suggest that the wrongful conviction rate is three per cent or higher. While the Australian criminal justice system may claim superiority in certain respects, there is no reason to believe the error rate in Australia would be radically lower.

The bill also does not address circumstances in which a prisoner is unable to assist police for any reason, although I note that one of the amendments that have been foreshadowed for debate during Committee of the Whole will hopefully, if passed, address one of my principal concerns, and that is situations in which, as a result of an acquired brain injury, cognitive impairment or any other factors, the prisoner has no recall of the location of the body. I also think of the frankly distinct possibility of someone being in prison for decades and experiencing memory failure as a result of old age or dementia. Although it might be argued that the use of the word “cooperate” accounts for circumstances in which the prisoner has done their best to assist police but is unable to. The framing of this provision is unacceptably ambiguous.

The committee noted that both Queensland and Victoria provide for the prisoner’s capacity to cooperate to be considered. Some such prisoners will not have been dealt with under the Criminal Law (Mentally Impaired Accused) Act 1996, which attracts a different release regime—for example, prisoners whose mental capacity became impaired after the trial. Although mental capacity may perhaps be considered at the time the Prisoners Review Board considers the ordinary release factors, as the bill currently stands it cannot be considered at the time the board considers whether or not the precondition has been met. I am hoping that that amendment will be passed, because otherwise a particularly glaring injustice remains in this legislation.

I will make some comments about the issue of locating a victim’s remains. There may be circumstances in which it is not possible for a prisoner to cooperate with police. It may be that the body is not traceable by the prisoner— for example, if the body was removed from its resting place by unknown third parties without the knowledge of the perpetrator—I note that Tom Percy, QC, has commented in the media that he has come across such cases, so this does happen—if the body was disposed of at sea or in an unknown, abandoned mine shaft; if the body has been destroyed, having been burnt or eaten by animals; or if the body was disposed of by someone else involved in the crime, who may not even be alive anymore, or may not be able to shed any light on this matter. The inclusion of murder-related offences—counselling or procuring the commission of murder, inciting another person to commit murder, becoming an accessory after the fact of murder or conspiring with another person to commit a murder—means that a person convicted of an offence under the legislation before us may legitimately have no idea where a body is located, so how do they demonstrate that they are cooperating? The explanatory memorandum suggests that proposed sections 66B and 66C are sufficiently broad that a person who does not know the last known location of a victim’s body can nonetheless be found to have cooperated with police. The committee found that cooperation, rather than recovery of the body, is the relevant criterion under the bill. The committee report also suggested that the chairperson of the Prisoners Review Board would need to be satisfied of this, but I would like to hear that that is the intent of the bill. I am concerned that, as drafted, it is too broad, and if it is intended that it will constitute cooperation if there is no way that a person can provide that information, it is important for the purposes of this bill that that be made clear in the process of this second reading debate.

As I noted earlier, the bill’s provisions apply to all relevant prisoners, regardless of when they committed the offence. I note the committee’s finding that, as there is no right to parole, only an eligibility, the bill is not retrospective. Proposed section 66C(3)(a)(ii) provides for the timeliness of the prisoner’s cooperation to be included in the Commissioner of Police’s report and to be considered by the Prisoners Review Board. For prisoners who have long been convicted and are serving their sentences, it is not clear how this will work. Any cooperation now will obviously not be timely per se, even if it follows shortly after the bill becomes law. If the bill leaves it to the board to work out whether it is satisfied of the prisoner’s cooperation with the police, it is unclear how this will be addressed by the board. The committee report was silent on this.

Clause 10 proposes that the board’s annual report to the minister each year include the number of prisoners whose cooperation was considered and the number who were released under an early release order. I support this proposal, and I have proposed some further amendments, to be discussed in the committee stage, that will hopefully provide additional transparency about how decisions are made.

In conclusion, I understand that the Standing Committee on Legislation made no finding that this bill is necessary, other than as a vehicle to implement government policy, but that in its opinion it was desirable. I acknowledge that the families and friends of victims strongly consider that this bill is desirable. I note again the submission from the Office of the Commissioner for Victims of Crime. I note that the police also consider that it is desirable on the basis that finding the location of the remains may yield further information, such as clothes or other items, that may help to resolve historic offences, and may also help to identify any other parties involved, and determine what charges to lay. I also recognise that this legislation is a government election commitment.

I understand why this bill has significant community support, and that it has particular meaning for the families of murder victims, when the body of the victim has not been found. I acknowledge that this is a terrible issue that has a devastating impact. If this happened to one of my children, I have to say that I would feel exactly the same way as the families advocating so strongly for the changes to the law. Withholding information about the location of a loved one’s remains is an appalling act. It prolongs the trauma and the suffering of families and loved ones. The Greens absolutely acknowledge the considerable, lifelong distress that those families continue to suffer. I think everyone wants to assist those families to reach closure. As a community, I think everybody wants to be able to assist in reducing the suffering.

However, my job is to stand in this place and clinically look at whether a bill is likely to have the impact that is intended. I have raised particular concerns that this bill may have a range of unforeseen consequences that do not achieve the outcomes that I think everyone wants; that is, to assist people to achieve closure, not that I believe we can ever fully do that, and take some steps towards justice. As I have outlined today, the Greens have a range of concerns with this bill. The precondition that the prisoner has cooperated with the police to identify the location, or last known location of a victim, or a member of the WA Police Force knows the location of the victim, is unrelated to predicting risk to the community. An innocent person, as unlikely as that may be, wrongly convicted, would likely never meet the precondition, even if they met the other parole eligibility, thus adding to that injustice. A guilty person, correctly convicted, who refused to cooperate but met the other parole eligibility criteria, would not be paroled, but could end up being ejected into the community at the end of their sentence without any supervision or conditions to help keep the community safe. Ultimately, I am really concerned that if all this legislation is going to do is keep people in prison longer and ensure that when they are released they are not receiving the support they require to successfully reintegrate back into the community so that the community is safe, people who have already been traumatised by the despicable actions of a murderer will have been effectively misled about the effectiveness of this legislation.

[HON CHARLES SMITH (East Metropolitan) [4.19 pm] ………..]

Debate interrupted, pursuant to standing orders.

Resumed from an earlier stage of the sitting.