Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016


Debate resumed from 8 November; motion of Mr DALIDAKIS (Minister for Small Business, Innovation and Trade).

Mr RICH-PHILLIPS (South Eastern Metropolitan) — I am pleased to rise this afternoon to speak on the Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016. This is a bill that has been long in the coming. It is a bill that this house and indeed certainly this side of the house has expected to see for around two years. The purpose of this bill is to address a situation created by the Court of Appeal as to the application of community correction orders (CCOs) and to address an unintended — certainly from the perspective of the Parliament — consequence as to the application of CCOs arising from a decision of the Court of Appeal in December 2014 in the Boulton case. The coalition is very pleased to now see this legislation come before the house. The bill addresses that decision of the Court of Appeal, which greatly expanded the scope — unintentionally, from the Parliament's perspective — of offences for which community correction orders could be brought into play.

To provide a bit of background, community correction orders were the response of the previous coalition government at the initiative of the then Attorney-General, Robert Clark, in 2011 to widespread community concern about the way in which our courts were ostensibly imposing custodial sentences on offenders found guilty of serious crimes but in fact suspending those sentences — meaning that while the headline was that somebody received a custodial sentence, in practice they were released into the community. This was occurring with offences which were quite serious. It was clearly at the time — in 2011 — inconsistent with community expectations. It was inconsistent with the community's view that jail means jail — if a person receives a custodial sentence, if they are sent to jail, they go to jail — not that they receive a sentence of imprisonment only to be released immediately into the community.

In reforming the Sentencing Act 1991 to ensure that a custodial sentence means a custodial sentence there was also recognition that for lower level offending where a punishment of a fine by itself would be inadequate there was need for an alternative mechanism to bridge the gap between an actual custodial sentence and a fine. For that reason, in recognition of the need to bridge that gap, community correction orders were created as that alternative sentencing mechanism available to the judiciary so they would not need to continue with the fiction which had existed to that point in time of the suspended sentence.

The CCO was seen and received as an effective mechanism, an effective tool, for the judiciary to provide and impose punishments beyond simply a fine, to require other activity or another sanction on a relatively low level offender, which extended beyond a fine but did not need to reach the level of incarceration. That framework of CCOs was in place from 2011 through to 2014 and received broad community support and community recognition that shifting from suspended sentences to a framework where jail actually meant jail was positive and that providing a mechanism to deal with low-level offending through CCOs was also effective.

In December 2014 we saw a development in the area of CCOs, with a Court of Appeal decision in relation to what I have called the Boulton case. In the Court of Appeal's decision on the Boulton case the court created its first guideline judgement. A guideline judgement is a mechanism that is available to the court under the Sentencing Act. It provides a mechanism by which the Court of Appeal, as the superior court, can lay down a judgement as a guideline which will inform other jurisdictions, the subordinate courts, as to how they should apply certain elements of the law. This is a mechanism which, although I understand it was inserted in the Sentencing Act in the early 2000s, had not been used by the court. The court had not until December 2014 sought to make a guideline judgement. However, in the Boulton case the Court of Appeal did make its first guideline judgement, and its guideline judgement was in relation to the use of community correction orders. In that guideline judgement the Court of Appeal greatly expanded the scope of offences for which CCOs could be used.

As I indicated, it was certainly the view of the previous government in bringing forward CCO legislation that the orders were to be used for low-level offending which required more than a fine but less than incarceration. The Court of Appeal, with its guideline judgement, turned that interpretation of the role of CCOs on its head. In the Boulton judgement the court stated, and I will quote paragraph 131:

It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.

This house recognises the role of sentencing in rehabilitation and just punishment, but what we do not accept is that CCOs are an appropriate mechanism for offences such as aggravated burglary, intentionally causing serious injury, some kinds of rape and some categories of homicide as laid down in that guideline judgement.

That guideline judgement from the Court of Appeal has potentially expanded the scope of CCOs far beyond that which the Parliament intended and far beyond that which the previous coalition government, in introducing CCOs, intended. It is for that reason that we now have this bill before the Parliament this afternoon. It actually seeks to restore CCOs to their original standing in the criminal justice system by creating under the Sentencing Act 1991 new categories of offences which are generally outside the scope of CCOs.

The bill establishes new category 1 offences, which are murder, gross violence offences, rape, serious child sex offences, drug trafficking and the cultivation of large commercial quantities of drugs; and category 2 offences, which are manslaughter, child homicide, causing serious injury intentionally, kidnapping, arson causing death, drug trafficking and cultivation of commercial quantities, and providing information facilitating terrorism acts. What the bill does is now create two categories of serious offences for which CCOs will not generally be available. The bill also seeks to make it clear that where a category 1 offence occurs the court is required to impose a sentence of imprisonment.

Also in the bill, but less related to the key provisions, is a provision that reduces the maximum length of the CCO to five years rather than to the maximum term of imprisonment which may have applied for the particular offence, and it also limits the use of CCOs by reducing the maximum length of a sentence of imprisonment that may be combined with a CCO from two years to one year.

But the key provision of this bill is the creation of the category 1 and category 2 offences, with the requirement that for category 1 offences a term of imprisonment must be provided — that is, a CCO is not suitable punishment for those offences. It is interesting to reflect on the way in which we have arrived at this situation — that decision of the Court of Appeal in Boulton in December 2014.

The coalition is critical of the government for not bringing this legislation forward earlier. This loophole has existed for almost two years since that decision was brought down in the Court of Appeal. But equally we need to reflect on the decision of the Court of Appeal: on why the Court of Appeal thought, through its guideline judgement, that the expansion of the scope of CCOs to that list of serious offences as outlined in paragraph 131 of the judgement was appropriate and on why the Court of Appeal thought that was consistent with community expectations.

One of the things with the capacity for the court to create guideline judgements is that they very much have the potential to stray into the realm of lawmaking. They have the potential to stray into usurping the Parliament's role in creating the legislative framework and having judge-made law contradict and override law as made by the Parliament. As I noted earlier, this is the first guideline judgement which has been made under the provisions of the Sentencing Act, and here we are in the Parliament, having had that first guideline judgement, needing to legislate to correct the effects of that guideline judgement.

A constant refrain in the community is the belief that the judiciary is often out of step with community expectations when it comes to sentencing in criminal matters. The Parliament recognises it is a challenge for the judiciary in undertaking sentencing in criminal matters, and the judiciary of course, by virtue of having all the facts before it, is in the best place to undertake and make decisions on criminal sentencing. But when the message flows through to the community that the sentences being handed down by the judiciary are consistently at odds with community expectations and when you then have a guideline judgement like the one that this legislation is intending to address today, which expands the scope of CCOs into so many serious offences, which was never the intention of the Parliament when it passed the legislation in 2011, it does undermine the community's confidence in the judiciary.

It is of great concern that we continue to see decisions which on the face of them are so out of step with what the community expects. There really can be no clearer indication that that is the case with this decision of the Court of Appeal in Boulton, because the government has brought legislation to the Parliament to effectively overwrite and reverse that Court of Appeal guideline judgement.

The coalition does not oppose the passage of this legislation. We believe the government should have brought these measures here earlier to address that decision in the Boulton case, or that guideline judgement arising from the Boulton case, but we are concerned that we continue to see judgements made which are so far out of step with community expectations that they undermine the community's confidence in the judiciary and undermine the community's confidence in the criminal justice system.

The fact that the Parliament is needing to legislate today to correct that Court of Appeal guideline judgement to restore the original intent of the CCO legislation from 2011 is regrettable. It is regrettable that the Parliament has had to take this action today to restore the standing of CCOs. It does seem to reinforce the message that we are not necessarily seeing decisions which are consistent with community expectations or indeed consistent with the Parliament's intention with the passage of, in this instance, the CCO legislation in 2011.

The coalition is pleased to see this legislation come to the house. We would have liked to have seen it come earlier. We hope we will not in the future need to see the Parliament intervene to correct and undo decisions of the court which are so far out of step with the expectations of the community. Search Results Previous result | Next result  

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