Sentencing Amendment (Sentencing Standards) Bill 2017

Debate resumed from 8 June; motion of Ms PULFORD (Minister for Agriculture).

Mr RICH-PHILLIPS (South Eastern Metropolitan) — I am pleased to make some brief remarks this afternoon on the Sentencing Amendment (Sentencing Standards) Bill 2017. This bill at its essence proposes amendments to the Sentencing Act 1991 and the Crimes Act 1958 to repeal the baseline sentencing regime, to establish a new standard sentence scheme for certain indictable offences, to require the fixing of a non-parole period in relation to certain substantive sentences and to amend the guideline judgement scheme.

The opposition is not proposing to oppose this bill, but it does have some concerns over a number of provisions and indeed particular concerns around part 4 of the bill that relate to guideline judgements. Part 2 of the bill seeks to repeal the baseline sentencing regime. This was a model that was introduced by the previous coalition government in an effort to establish a framework by which our courts would standardise the sentences they had put in place on serious offences and have those sentences reflect community expectations. The intention was that a baseline sentence would be just that — it would be a default sentence. It would be a guideline that a court was expected to adhere to unless there were exceptional circumstances which required a court to vary from that baseline sentence and to obviously give reasons accordingly.

It was not long after the introduction of that baseline sentencing scheme that we saw the courts move away from it. The courts made judgements in a way that did not uphold the intention of the baseline sentencing scheme and effectively invalidated that scheme. As a consequence of the decision of the Court of Appeal that brought about this outcome, we are seeing the government today seek to repeal the baseline sentencing scheme and replace it with what it has described as a standard sentence scheme which is targeted at establishing a standard regime of sentencing from which courts can then have discretion around individual judgements.

What this scheme does not do, though, is raise the threshold, or raise the sentences that are likely to flow for serious indictable offences, and particularly offences involving violence. This is something that continues to be of concern to the Victorian community. We have seen over the last two years, as this house has heard time and time again, an unprecedented increase in violent crime in Victoria and an unprecedented growth in crimes such as home invasions, carjackings, violence against the person, assaults and the like — things that have not been prevalent in the Victorian community until very recently. Melbourne was not known as the home of carjackings until recently; it was not known as the home of home invasions until recently. This is something that has unsettled the Victorian community, and it is something that the Victorian community expects the government, the Parliament and the courts to take action on.

The community has made it very clear that they are sick of the revolving door justice system where Victoria Police apprehend offenders and if they get to prosecution — that is, if they have not already been let out on bail — when they come to court on substantive charges they then receive a sentence which is not reflective of the community's expectations. What we have today with the standard sentencing mechanism that the government proposes to put in place of baseline sentencing is a regime that will not see the sentences for those serious offences increase.

We have seen time and time again examples of where the judiciary does not act in a way that reflects the views of the Parliament around sentencing. We saw that with the baseline sentencing scheme. We saw that when the Parliament increased maximum sentences for particular violent offences in the statute. We do not see the commensurate increase in sentences reflected in the decisions of the judiciary, and this is something that is of concern to the Victorian community. We do not have any confidence that the standard sentencing scheme which is being introduced with this bill is actually going to change that or that we will see those increased sentences that the community expects for serious violent offences. We will see this new framework and this new standard sentence in place of a baseline sentence, but what we are not going to see is actually an increase in the sentences which are handed out for particular violent offences. To that extent this legislation is not going to meet the expectations of the Victorian community.

Then there is that ongoing tension between the legislature and the judiciary in the area of sentencing, but ultimately it is for the legislature to reflect the community's expectations in the sentencing framework. Increasingly I think we will see criticism of the judiciary where they hand down sentences which do not reflect the community's expectations, and increasingly we will see interventions from the legislature which put more constraints around the judiciary in the way in which they hand down sentences. If we continue to see the judiciary not reflecting community expectations, inevitably we will see in the future legislation which puts more constraints around the discretion that the judiciary have.

The next item of the bill in clause 22 relates to the fixing of non-parole periods for certain standard sentences — for example, a 30 years non-parole period for a life sentence; at least 70 per cent of the term of imprisonment where a term is 20 years or more; and at least 60 per cent of the term where a term of imprisonment is less than 20 years — to establish a framework which establishes a nexus between standard sentence period and the maximum that is available.

The other area of the bill which is of concern to the coalition is part 4 of the bill, and the coalition will seek in the committee stage to remove that from the bill. I ask, Acting President, that the coalition's amendments be circulated.

Opposition amendments circulated by Mr RICH-PHILLIPS (South Eastern Metropolitan) pursuant to standing orders.

Mr RICH-PHILLIPS — The amendments the coalition is proposing in relation to part 4 seek to omit that part of the bill. Part 4 of the bill is in relation to the guideline judgement scheme, which is where the Court of Appeal, not sitting in trial on a particular matter, may make a guideline judgement as to how parts of the sentencing regime should be applied by the court and by the lower courts.

The one guideline judgement which has come to this house's attention in the past is the guideline judgement which was made in respect of the matter of Boulton and Others in relation to the application of community correction orders (CCOs). The house will recall that the previous coalition government, in removing the option of suspended custodial sentences, created the framework of community correction orders in recognition that there are some offences where incarceration was not appropriate but nonetheless a penalty should be applied and the previous concept of a suspended sentence — a custodial sentence that is suspended — was also not deemed appropriate, so the framework of community correction orders was put in place. Not long after that was put in place we had a guideline judgement from the Court of Appeal which sought to state that CCOs could be applied to 'relatively serious offences', which were the words used by the Court of Appeal. It went on to talk about examples such as rape, child incest and a range of other serious offences.

It was never the government of the day's intention and it was never the Parliament's intention that CCOs be applied to those sorts of offences. The effect of the Court of Appeal in its wisdom determining that in some circumstances those types of offences could be the subject of a sentence using a CCO was to then open it up to people who were charged with those offences to say that because, under the guideline judgement, the sentence for such an offence may only be a CCO, it was a charge for which the person should be granted bail, for example. That then became a problem and the Parliament had to intervene, and it did so last year in amending the CCO scheme to basically avoid the problems that had been created by that guideline judgement.

What part 4 of the bill does is actually seek to open the guideline judgement scheme to give the Attorney-General the ability to apply to the Court of Appeal to give a guideline judgement or to review a guideline judgement and to allow a guideline judgement to include an indication of the appropriate level or range of sentences for particular offences or classes of offences. Our concern with this is that it is effectively saying the Attorney-General will have a mechanism where they can go to the Court of Appeal and have the court make the law to determine, by way of a guideline judgement, what is an appropriate level or range of sentences for various offences. That is the role of the Parliament. It is not the role of the judiciary, or the Court of Appeal specifically. Frankly, we have seen, where the Court of Appeal stray into the area of creating law around sentencing, that they have not done a very good job. They certainly have not reflected the expectations of the community. So we believe that this provision, which would allow the Attorney-General to apply to the Court of Appeal to do just that — to get involved even more than they are now in making law, in making decisions around the appropriateness, range and levels of sentences — is not a positive step. The amendments that the coalition will move when the bill gets to committee in fact seek to omit provisions contained in part 4 of the bill.

The coalition, as I said, do not oppose this bill. We do not believe that replacing the baseline sentencing regime with a standard sentencing regime is going to advance sentencing in the state in the way that the community expects. We are concerned that we are seeing, as I said, time and time again the judiciary not reflecting community expectations around sentencing. I note that the coalition have made a number of announcements over the last 12 months in relation to sentencing and other penalties in relation to 11 serious violence offences now. We do believe this is a significant concern to the Victorian community. We do believe there needs to be further legislative intervention to ensure that we are seeing the will of the Victorian people reflected in sentencing decisions. We do not believe that this regime of standard sentences is going to do that and we certainly do not believe that the guideline judgement model is going to act in the best interests of Victorians, and we will be looking to omit that from the bill.
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