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THE PENALTIES AND SENTENCES (SERIOUS VIOLENT OFFENCES) AMENDMENT BILL 1997

LEGISLATION BULLETIN NO 4/97

KAREN SAMPFORD

QUEENSLAND PARLIAMENTARY LIBRARY Publications and Resources Section

BRISBANE March 1997 ISSN 1324-860X ISBN 0 7242 7350 1 This Legislation Bulletin was prepared to assist Members in their consideration of the Bill in the Queensland Legislative Assembly. It should not be considered as a complete guide to the legislation and does not constitute legal advice.

The Bulletin reflects the legislation as introduced. The Queensland Legislation Annotations, prepared by the Office of the Queensland Parliamentary Counsel, or the Bills Update, produced by the Table Office of the Queensland Parliament, should be consulted to determine whether the Bill has been enacted and if so, whether the legislation as enacted reflects amendments in Committee. Readers are also directed to the relevant Alert Digest of the Scrutiny of Legislation Committee of the Queensland Parliament.

© Queensland Parliamentary Library, 1997

Copyright protects this publication. Except for purposes permitted by the Copyright Act 1968, reproduction by whatever means is prohibited, other than by Members of the Queensland Parliament in the course of their official duties, without the prior written permission of the Parliamentary Librarian, Queensland Parliamentary Library.

Inquiries should be addressed to: Director, Publications & Resources, Queensland Parliamentary Library, Parliament House, George Street, Brisbane. Director: Ms Mary Seefried. (Tel: 3406 7116) CONTENTS

1. PURPOSE...... 1

2. OBJECTIVES OF THE PENALTIES AND SENTENCES ACT 1992...... 2

3. DEFINITIONS...... 4

4. SENTENCING GUIDELINES...... 5

4.1 QUEENSLAND’S PENALTIES AND SENTENCES ACT 1992 ...... 6 4.1.1 General Principles...... 6 4.1.2 Sentencing Guidelines For Offenders Under 25 Years ...... 7 4.1.3 Imprisonment - Court’s Reasons To Be Stated ...... 8 4.1.4 Case Law ...... 8

4.2 THE PROPOSED AMENDMENTS ...... 11 4.2.1 Omitted Principles - Repeal of Sections 9(3) and 9(4) ...... 11 4.2.2 Proposed New Principles - New Sections 9(3) and 9(4) ...... 12

4.3 A COMPARATIVE SURVEY OF LEGISLATIVE PROVISIONS ...... 13 4.3.1 Commonwealth ...... 13 4.3.2 New South Wales...... 14 4.3.3 Victoria ...... 14 4.3.4 South Australia...... 15 4.3.5 Western Australia ...... 16 4.3.6 Australian Capital Territory ...... 16 4.3.7 Northern Territory...... 16

5. THE RANGE OF SENTENCING OPTIONS ...... 18

5.1 SENTENCING OPTIONS UNDER THE PENALTIES AND SENTENCES ACT 19 5.1.1 Restitution and Compensation ...... 19 5.1.2 Fines...... 20 5.1.3 Fine Option Orders...... 20 5.1.4 Community Based Orders...... 21 5.1.5 Suspended Sentences...... 22 5.1.6 Imprisonment ...... 25 5.1.7 Indefinite Sentences...... 25 6. CUMULATIVE SENTENCES...... 27

6.1. CONCURRENT VERSUS CUMULATIVE SENTENCES - THE CURRENT POSITION ...... 27

6.2 THE PROPOSED AMENDMENTS ...... 28

6.3 THE PRINCIPLE OF TOTALITY ...... 28

6.4 IMPOSING CUMULATIVE SENTENCES IN SPECIAL CIRCUMSTANCES .... 30 6.4.1 Offences Committed While in Custody...... 30 6.4.2 Other Situations...... 31

6.5 COMMENTS ON CUMULATIVE SENTENCING ...... 32

6.6 THE SPECIAL CASE OF LIFE IMPRISONMENT ...... 35

7. MINIMUM TERMS AND ELIGIBILITY FOR PAROLE ...... 36

7.1 THE CURRENT POSITION...... 36

7.2 THE PROPOSED AMENDMENTS ...... 38 7.2.1 Multiple Murders and Repeat Murders...... 38 7.2.2 Other Life Sentenced Prisoners ...... 39 7.2.3 Serious Violent Offences...... 39 7.2.4 Other Cases ...... 39 7.2.5 A Comparative Survey...... 39

8. REMISSIONS...... 42

BIBLIOGRAPHY...... 45

APPENDIX A...... 49

APPENDIX B...... 51

APPENDIX C...... 53

APPENDIX D...... 55

APPENDIX E...... 57 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 1

DATE OF INTRODUCTION: 19 March 1997

PORTFOLIO: Attorney-General and Justice

HANSARD REFERENCE Daily Hansard, 19 March 1997, SECOND READING: pp 595-601.

1. PURPOSE

The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 (Qld) (the amending Bill) makes amendments to the Penalties and Sentences Act 1992, the Corrective Services Act 1988 and the Criminal Code (1899).

The main purposes of the Bill are: · to amend the purposes section of the Penalties and Sentences Act; · to amend the sentencing guidelines contained in s 9 of the Penalties and Sentences Act; · to make separate provision for the punishment of serious violent offenders, for example, by providing

· that the sentencing principle that imprisonment should be a sentence of last resort (s 9(2)(a) of the Penalties and Sentences Act) is not to apply where an offender is sentenced for any offence that involves use, counselling or procuring use of, or attempting or conspiring to use, violence against another person or which results in physical harm,

· that prisoners sentenced to a term of imprisonment for a serious violent offence are not to be eligible for parole until they have served either 80% of their sentence or 15 years, whichever is the lesser, and Page 2 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

· that, where an offender is convicted of a serious violent offence committed while the offender was serving a sentence of imprisonment, on parole, or at large after having escaped from custody, any sentence of imprisonment imposed for the serious violent offence must be served cumulatively with any other sentence of imprisonment the offender must serve; · to amend the guidelines contained in s 147 of the Penalties and Sentences Act which govern when an offender is to serve the whole of an suspended sentence, and · to reform evidentiary provisions governing indefinite sentences contained in Part 10 of the Penalties and Sentences Act.

The Explanatory Notes to the Bill state that the proposed amendments give effect to the Coalition’s policy on serious violent offences.1 A copy of this policy is reproduced as Appendix A to this Legislation Bulletin.

This Bulletin examines several of the key provisions contained in the Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997. Section 2 looks at proposed amendments to the purposes section (s 3) of the Penalties and Sentences Act. Section 3 explains what is meant by serious violent offences for the purposes of the legislation. Section 4 of the Bulletin looks at proposed changes to the sentencing guidelines currently contained in the Penalties and Sentences Act and, in particular, at the proposed changes affecting s 9(2)(a) (imprisonment as a last resort) and 9(4) (desirability of not imprisoning young first offenders). Section 5 deals with the range of sentencing options available and how they are expressed in the Penalties and Sentences Act. In Section 6 of this Bulletin, the proposed amendments requiring sentences for offences committed in prison, or while a prisoner is at large, to be served cumulatively, rather than concurrently, are discussed. Section 7 looks at the proposed changes to the parole provisions contained in s 157 of the Penalties and Sentences Act and s 166 of the Corrective Services Act, and at the proposed amendments to s 305 of the Criminal Code. Section 8 looks at proposed changes to the availability of remissions for serious violent offenders.

2. OBJECTIVES OF THE PENALTIES AND SENTENCES ACT 1992

Section 3 of the current Penalties and Sentences Act lists the purposes of the legislation. Included among these is the purpose of “providing for a sufficient

1 Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997, Explanatory Notes, p 1. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 3 range of sentences to balance protection of the Queensland community with appropriate punishment for, and rehabilitation of, offenders”, as stated in s 3(b).

Clause 4 of the amending Bill replaces this sub-section with a proposed new provision that introduces into the purposes section of the Penalties and Sentences Act the concept of community protection as a primary consideration. Proposed new s 3(b) will include as a purpose of the Penalties and Sentences Act that of “providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and, in appropriate circumstances, ensuring that protection of the Queensland community is a paramount consideration”. Protecting the Queensland community from an offender is already included in the Queensland legislation as a purpose of sentencing (s 9(1)(e) of the Penalties and Sentences Act).

In introducing the Penalties and Sentences (Serious Violent Offences) Bill 1997 to the Legislative Assembly, Hon D E Beanland MLA stated: The provisions of the new Part in the Penalties and Sentences Act 1992 will expressly reflect the Government’s concern with community safety in relation to serious violent offences, as well as community denunciation of this type of crime. The Government went to the people at the last election promising that¾ “In determining the appropriate length of a custodial sentence for a serious violent offender, a court will take into account the protection of the community as a primary sentencing consideration.” This Bill delivers that promise by amendments to the purposes section and the sentencing guidelines of the Act.2

In Victoria, special provision was made for the sentencing of serious sexual offenders and serious violent offenders by virtue of the Sentencing (Amendment) Act 1993, which amended Victoria’s Sentencing Act 1991. While protection of the community is not listed among the stated purposes of the legislation in s 1 of that state’s Sentencing Act, it is explicitly included among the purposes for which sentences may be imposed, as laid down in s 5 of the Act.3 Section 5A of the Victorian Sentencing Act provides that in determining the length of time for which a person should be imprisoned for a serious sexual or violent offence (once it has been determined that a sentence of imprisonment is justified), the sentencing court “must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed”.

2 Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 (Qld), Second Reading Speech, Hon D E Beanland MLA, Queensland Parliamentary Debates, 19 March 1997, p 595.

3 Sentencing Act 1991 (Vic), s 5(1)(e). Page 4 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

3. DEFINITIONS

In the Minister’s Second Reading Speech to the Penalties and Sentences (Serious Violent Offences) Bill 1997, he explained that the Bill would : ... amend the Penalties and Sentences Act 1992, the Corrective Services Act 1988 and the Criminal Code 1899 by introducing, within the existing legislative framework, a separate regime for the punishment of criminals convicted of serious violent offences ... 4

Clause 5 of the Penalties and Sentences (Serious Violent Offences) Amendment Bill amends the definition section (s 4) of the Penalties and Sentences Act by inserting a definition of “serious violent offence”. Such an offence is defined as “a serious violent offence of which an offender is convicted under s 161A”.

Clause 10 of the amending Bill inserts a proposed new Part 9A (ss 161A to 161D) into the Penalties and Sentences Act.

Proposed new s 161A provides that an offender will be convicted of a serious violent offence if: · the offender is convicted on indictment and sentenced to imprisonment for 10 or more years (as calculated under s 161C):

· for an offence mentioned in the Schedule, or

· for an offence of counselling or procuring the commission of, or attempting or conspiring to commit, an offence mentioned in the Schedule, or · the offender is declared by the sentencing court to be convicted of a serious violent offence under 161B(3) or 161B(4).

Examples of offences listed in the Schedule include attempted murder, robbery, escaping from lawful custody, unlawful assembly and drug trafficking.

Under proposed new 161B(3), if an offender: · is convicted on indictment of an offence mentioned in the Schedule, or of counselling or procuring the commission of, or attempting or conspiring to commit a Schedule offence, and · is sentenced to imprisonment for five or more than five, but less than 10 years,

4 Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 (Qld), Second Reading Speech, Hon D E Beanland MLA, Queensland Parliamentary Debates, 19 March 1997, p 595. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 5 the sentencing court will have a specific discretion to declare the offender to be convicted of a serious violent offence.

Under proposed new s 161B (4), if an offender: · is convicted on indictment of an offence that involved the use, counselling or procuring the use of, or conspiring or attempting to use, serious violence against another person; or which resulted in serious harm to another person, and · is sentenced to a term of imprisonment for the offence, the sentencing court may also declare the offender to be convicted of a serious violent offence (ie the sentencing court will have a general discretion).

In introducing the Bill to the Legislative Assembly, Hon D E Beanland MLA stated: A solely Schedule based approach, though it can list most violence related offences, may fail to catch some offences in which a serious degree of violence or harm can be inflicted although actual violence is not an element of the offence. A conspiracy to murder is a serious a “violent” crime as any other, as is an attempted abduction which renders the victim afraid to go anywhere alone. Therefore attempts and conspiracies to use violence are included in the definition of a serious violent offence, as are the counselling or procuring of such offences.5

Victoria’s Sentencing Act also incudes conspiracies to commit, incitement to commit and attempts to commit specified offences within its definitions of violent offences and serious violent offences.6

4. SENTENCING GUIDELINES

Imprisonment is the most severe sanction available under our modern criminal justice system.7 Accordingly, the common law regards it as a punishment which should only be imposed as a measure of last resort. This principle has also found expression in statute law, as evidenced, for example, by the provisions of s 9 of Queensland’s Penalties and Sentences Act.

5 Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 (Qld), Second Reading Speech, Hon D E Beanland MLA, Queensland Parliamentary Debates, 19 March 1997, pp 596-97.

6 Sentencing Act 1991 (Vic), s 3.

7 Australia. Law Reform Commission, Sentencing, Report No 44, AGPS, Canberra, 1988, p 19. Page 6 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

Section 4.1 of this Bulletin outlines in detail those sections of the Penalties and Sentence Act which provide that imprisonment should be treated as a sentence of last resort, including the particular application of that principle to young offenders. The way in which the principle in the Penalties and Sentences Act has been applied in practice is described by reference to case law, including unreported judgments. The proposed amendments to the existing provisions of the Penalties and Sentences Act dealing with imprisonment as a penalty of last resort are outlined in Section 4.2. Section 4.3 provides a comparative survey of statutory provisions in other Australian jurisdictions.

4.1 QUEENSLAND’S PENALTIES AND SENTENCES ACT 1992

The Penalties and Sentences Act was introduced into the Queensland Legislative Assembly by Hon D M Wells MLA, the then Minister for Justice and Attorney- General, on 5 November 1992, and was assented to on 24 November 1992. The Act consolidated into one piece of legislation provisions governing the imposition and administration of penalties and sentences which had previously been scattered throughout a variety of statutes, including the Criminal Code Act 1899, the Corrective Services Act 1988, the Penalty Units Act 19858 and the Vagrants, Gaming and Other Offences Act 1931.9 The Act has since been amended nine times.

Among the “significant reforms” contained in the Act, as identified by Hon D M Wells MLA, was the fact that: “For the first time in this State, governing principles are provided to which sentencing courts must pay regard in imposing sentences on offenders”.10

4.1.1 General Principles

Section 9(2) of the Penalties and Sentences Act sets out sixteen principles to which courts must pay regard when sentencing offenders (see Appendix B to this Bulletin). The first listed of these principles, and the one that has been described by

8 The Penalty Units Act 1985 (Qld) was repealed by the Penalties and Sentences Act 1992 (Qld), s 206.

9 Penalties and Sentences Bill 1992 (Qld), Second Reading Speech, Hon D M Wells MLA, Queensland Parliamentary Debates, 5 November 1992, p 159.

10 Penalties and Sentences Bill 1992 (Qld), Second Reading Speech, Hon D M Wells MLA, Queensland Parliamentary Debates, 5 November 1992, pp 159-160. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 7

Michael Quinn, of Gilshenan and Luton, Solicitors, as “perhaps of most significance”11 is the principle that: · a sentence of imprisonment should only be imposed as a last resort: s 9(2)(a)(i), and · a sentence that lets the offender remain in the community is preferable: s 9(2)(a)(ii).

Referring to this provision, Terry O’Gorman, Vice President of the Queensland Council for Civil Liberties remarked: While the principle may state the obvious it is nevertheless an important one to keep in mind having regard to the over-readiness of some Courts to use the imprisonment option without considering and applying non-imprisonment options first.12

4.1.2 Sentencing Guidelines For Offenders Under 25 Years

Section 9(4) of the Penalties and Sentences Act makes particular provision for youthful first offenders. It provides that a court may impose a prison sentence on an offender who is under 25 years of age and has no previous convictions only if the court, having¾ · considered all other available sentencing options, and · taken into account the desirability of not sending a first offender to prison, is satisfied that no other sentence is appropriate in all the circumstances of the case.

Terry O’Gorman, commenting on this provision, described it as “an important addition to sentencing law in this State”. Nonetheless, as Mr O’Gorman pointed out: ... if the gravity of the offence warrants it, the fact that a person is under the age of twenty-five years is no impediment to a Court imposing a jail sentence.13

This point is also made by the Court of Appeal in the extract quoted from R v Bainbridge in Section 4.1.4 of this Bulletin.

11 Michael Quinn, ‘The Penalties and Sentences Act 1992’, Proctor, January/February 1993, p 12.

12 Terry O’Gorman, ‘Penalties and Sentences Act 1992-3’, in The Penalties and Sentences Act and the New Prostitution Laws: Papers Presented at the Seminar held on Wednesday, 21 July 1993, Queensland Law Society, p 2.

13 O’Gorman, p 5. Page 8 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

4.1.3 Imprisonment - Court’s Reasons To Be Stated

Under Section 10(1) of the Penalties and Sentences Act, where a court hands down a sentence of imprisonment (including a suspended sentence), it must state in open court its reasons for the sentence and record those reasons in the court transcript. A copy of the court’s reasons for sentence must also be provided to the Queensland Corrective Services Commission: s 10(1)(c), a step described by Terry O’Gorman as “ a welcome administrative innovation”.14 According to Mr O’Gorman: “This, hopefully, will allow the Commission to establish a data base to monitor and report on discrepancies in sentencing practices for similar type of offences/offenders”.15

A sentence of imprisonment is not invalid if the court fails to state its reasons, but the absence of reasons for sentence is a factor an appeal court may consider: s 10(2).

4.1.4 Case Law

Since the commencement of the Penalties and Sentences Act, the sentencing guidelines in s 9(2)(a) and s 9(4) have been the subject of discussion in a number of court cases. For example, as R v Ozdemir illustrates, the principle in s 9(2)(a) that a sentence of imprisonment should only be imposed as a last resort does not mean that a non-custodial sentence is necessarily required where previously a substantial custodial sentence would have been deemed warranted.16 In this case, the Attorney- General appealed against the sentence imposed on Mr Ozdemir for a conviction of perjury while giving evidence in an action he had brought for personal injuries. Mr Ozdemir was sentenced to two and a half years imprisonment, to be suspended wholly for 4 years. The trial judge expressed the view that, before the introduction of the Penalties and Sentences Act, the respondent would have received a substantial prison sentence, but continued: I must now proceed on the basis that a sentence which allows you to stay in the community is preferable and that a sentence of imprisonment should only be imposed as a last resort. ... I have been given two examples of sentences imposed for perjury since the commencement of the Act, and it would seem that the sentencing judges have sought to act upon the principle of community rehabilitation with imprisonment as a last resort. There is no suggestion of an appeal against those sentences.

14 O’Gorman, p 6.

15 O’Gorman, p 6.

16 R v Ozdemir (1993 unreported), Court of Appeal, Qld, 22 November 1993, CA 361/93. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 9

I propose to endeavour to carry out the modern sentencing principle.17

However, the Court of Appeal had this to say: It may be accepted that paragraph 9(2)(a) like other provisions in s 9 displays some intention to induce changes in the approach of courts in identifying the most suitable sentences for imposition in particular cases or at least to ensure the universal application of what were previously widely accepted practices in sentencing. That paragraph may be viewed as encouraging the adoption of a more lenient approach in appropriate cases but it cannot mean that, where formerly a type of offence was regarded as ordinarily meriting a term of imprisonment, this is now necessarily not so.18

Accordingly, the court allowed the appeal and imposed in its place a sentence of two years’ imprisonment, with a recommendation for parole after 9 months.

Young Offenders

The general principles involved in sentencing young offenders under s 9(4) were discussed in R v Bainbridge, an unreported 1993 decision of Queensland’s Court of Appeal. This case involved an application for leave to appeal against sentence by three youths, each of whom was sentenced to three and a half years, with a recommendation for parole after 12 months, for armed robbery in company. At the time of the commission of the offences, only one youth was over 17, and two were still in school. In considering the application for leave to appeal, the Appeal Court (Pincus, Davies and Thomas JJ) stated: There can be no doubt of the seriousness of these offences, particularly that of armed robbery in company. Nor can there be any doubt of its prevalence. But for the youth of these applicants and the fact that none of them had been in custody before or could be described as persistent or serious previous offenders, there could also be no doubt that his Honour would have been justified in imposing on them the sentences which he did. The sole question before this court is whether, given their ages and, in the case of Bainbridge and Ludwicki, the fact that they had no relevant previous convictions and, in the case of Cullen, that he had only one, those sentences are justified. Even before the enactment of the Penalties and Sentences Act 1992 courts were most reluctant, even for offences of this kind, to send 17 year olds to jail if there was any other sentence reasonably open.19

17 quoted in R v Ozdemir at p 4.

18 R v Ozdemir, pp 3-4.

19 R v Bainbridge (1993 unreported) Court of Appeal, Qld, 25 October 1993, CA 286, 284, 285/93. Page 10 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

The court referred to a document detailing sentences imposed between 1988 and 1992 on 17 year olds for armed robbery or armed robbery in company, drawn from computer-generated data from the Director of Prosecutions’ Office. Of the 28 sentences imposed during 1988-1992, only 13 were custodial terms, and only five involved a custodial sentence where the offender had no relevant previous convictions. The information in the document was updated and annexed to the court’s judgment. In the court’s opinion, the data on comparable sentences “... demonstrate[d] that the sentences imposed on the applicants d[id] not fit into the recent pattern of sentences of youths about their age, as shown in the document”.20

Turning to the words of s 9(4), the court said: That provision gives legislative support to the view which, as appears from the [annexed] document, has long been the view of courts with respect to youthful first offenders. It need hardly be said that the younger the offender generally the greater is the chance and consequently the desirability of rehabilitating that person without requiring him or her to undergo the rigours of imprisonment; though there are, of course, some cases which are so serious that notwithstanding youth and the absence of relevant previous convictions, the offender must go to jail.21

The court concluded that the three co-offenders’ applications for leave to appeal should be granted and the appeals allowed. The original sentences were set aside and each of the applicants was instead placed on probation for 3 years.

In Punter v Clements, the sentencing magistrate’s decision was overturned because, on the face of the reasons which he gave, he had failed to take into account the desirability of not imprisoning a first offender, as required by s 9(4) of the Penalties and Sentences Act. The magistrate had sentenced Mr Clements, a first offender, to six months imprisonment and disqualified him from holding or obtaining a driver’s licence for 12 months, after he pleaded guilty on 22 March 1995 to a charge of dangerous driving whilst adversely affected by alcohol. Mr Clements was 19 at the time the offence occurred. He had already been in jail serving his sentence until he was released on bail on 13 April 1995. In view of the statutory limitations placed upon a court in sentencing young first offenders by the Penalties and Sentences Act, the court concluded that the appropriate penalty was to set the sentence of six months imprisonment aside, substitute a sentence of imprisonment to commence on and from 22 March 1995 and to expire on 13 April 1995, and to make a probation order for two years from 13 April 1995.

20 R v Bainbridge, p 5.

21 R v Bainbridge, p 6. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 11

In another case involving a conviction on a charge of dangerous driving causing death, a sentence of imprisonment was not imposed nor was a conviction recorded. Instead, the 23 year old offender, who had no prior convictions, was ordered to perform 220 hours of community service and disqualified from holding a driver’s licence for three years. Although the Attorney-General appealed against the sentencing judge’s decision not to record a conviction, a custodial sentence was not sought on appeal because counsel for the Crown in the lower court had, when making his submissions on sentence, submitted that there was little point in sending the young man to jail: R v Brown, ex parte Attorney-General [1994] 2 Qd R 182.

4.2 THE PROPOSED AMENDMENTS

Clause 6 of the Penalties and Sentences (Serious Violent Offences) Bill omits the existing ss 9(3) and 9(4) of the Penalties and Sentences Act and inserts proposed new sentencing guidelines to apply to offences involving violence.

4.2.1 Omitted Principles - Repeal of Sections 9(3) and 9(4)

Existing s 9(3) of the Penalties and Sentences Act provides that a court may impose a sentence only if, after having considered all the available sentencing options, it is satisfied that the sentence is appropriate in all the circumstances of the case, and is no more severe than is necessary to achieve the purposes for which it is imposed.

This sentencing principle is omitted by Clause 6(3). According to the Minister’s Second Reading Speech to the Penalties and Sentences (Serious Violent Offences) Amendment Bill, the repeal of existing s 9(3) of the Penalties and Sentences Act is in response to comments made by the Litigation Reform Commission (LRC) in a report reviewing the Penalties and Sentences Act, released in December 1994. There the LRC stated, in relation to the principle laid down in s 9(3), that: Surely, that is the very essence of the exercise of judicial discretion in sentencing. Courts are not entitled to impose sentences which are considered by the court to be inappropriate in the circumstances and more severe than is necessary. This provision is meaningless and ought to be deleted.22

Clause 6(3) also omits existing s 9(4), which provides that a court may impose a sentence of imprisonment on a first offender who is under 25 only if the court has considered all other available sentences and taken into account the desirability of not

22 quoted in Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997, Second Reading Speech, Hon D E Beanland MLA, Queensland Parliamentary Debates, 19 March 1997, p 596. Page 12 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 imprisoning a first offender. In explaining the rationale for repealing this sentencing principle, Hon D E Beanland MLA stated: That principle would not in all cases sit well together with a legislative requirement that the court take into account the protection of the community from a serious violent offender as a primary sentencing consideration. As it is also pointless for stating the obvious and acts as a fetter on a court’s sentencing discretion, section 9(4) will also be repealed. The restriction on a court’s sentencing discretion in respect of people under 25 will be removed.23

4.2.2 Proposed New Principles - New Sections 9(3) and 9(4)

Proposed new s 9(3) of the Penalties and Sentences Act, inserted by Clause 6(3) of the Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997, limits the application of the principle contained in s 9(2)(a) (that imprisonment should only be imposed as a sentence of last resort and that a sentence that allows an offender to remain in the community is to be preferred). It provides that the principles laid down in s 9(2)(a) will not apply where an offender is sentenced for any offence: · that involves the use of, or counselling or procuring the use of, or attempting or conspiring to use, violence against another person, or · that results in physical harm to another person.

Proposed new s 9(4) sets out factors to which a sentencing court is to have regard when sentencing an offender to whom proposed new s 9(3) applies. It provides that a sentencing court must have regard primarily to factors such as the risk of physical harm to members of the community if a custodial sentence was not imposed, and the need to protect any members of the community from that risk. Eleven factors in all are specified, the last of which is the catch-all phrase “anything else about the safety of members of the community that the sentencing court considers relevant”.24 Appendix C list all the factors which a sentencing court will be required to consider when sentencing an offender for an offence of the kind referred to in proposed new s 9(3).

23 Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 (Qld), Second Reading Speech, Hon D E Beanland MLA, Queensland Parliamentary Debates, 19 March 1997, p 596.

24 proposed new s 9(4)(k). The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 13

4.3 A COMPARATIVE SURVEY OF LEGISLATIVE PROVISIONS

4.3.1 Commonwealth

Section 17A(1) of the Crimes Act 1914 (Cth) provides that a court is not to impose a sentence of imprisonment for a federal offence unless the court, after considering all other available sentences, is satisfied that there is no other appropriate sentence in all the circumstances of the case. The section applies subject to any intention to the contrary expressed in the law creating the offence. Section 17A was inserted into the Crimes Act by the Crimes Amendment Act 1982 (Cth), in the wake of recommendations by the Australian Law Reform Commission that legislation should emphasise imprisonment as the measure of last resort.25 In its original form, the principle in the Crimes Act that a jail sentence is not to be imposed unless the court is satisfied that no other sentence is appropriate did not apply to more serious offences (ie offences punishable by imprisonment for life or for a period of seven or more years, or to any other offences punishable only by imprisonment): old s 17A(4). An offence was regarded as punishable only by imprisonment if a court was allowed to impose a sentence of imprisonment but was not empowered to impose a fine or other monetary penalty on a person: old s 17A(5). Sections 17A(4) & (5) were repealed by the Crimes Legislation Amendment Act (No.2) 1990 (Cth).

Where a person is convicted of a federal offence punishable by imprisonment only, Section 4B of the Crimes Act allows a court to impose a pecuniary penalty instead, provided the court thinks this is appropriate in all the circumstances of the case and no contrary intention appears (ie as recommended by the Australian Law Reform Commission, there are effectively no offences, no matter how grave, for which a jail sentence is the only available option).26

Under s 17B of the Crimes Act, where an offender has not previously been sentenced to a term of imprisonment, a court is not to pass a sentence of imprisonment for specified offences whose total value does not exceed $2000, unless there are exceptional circumstances. The types of offences to which s 17B applies include destroying or damaging Commonwealth property,27 obtaining money

25 Australia. Law Reform Commission, Report No 15, cited in Australia. Law Reform Commission, Sentencing, Report No 44, p 28.

26 ALRC, Report No 44, p 29.

27 Crimes Act 1914 (Cth), s 29. Page 14 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 from the Commonwealth under false pretences,28 and defrauding the Commonwealth.29

In similar fashion to s 10(1)(a) and (b) of Queensland’s current Penalties and Sentences Act, s 17A(2) of the Commonwealth Crimes Act provides that a court which imposes a sentence of imprisonment must state the reasons why it considers that no other sentence is appropriate, and record them in the court records. Again, like s 10(2) of the Penalties and Sentences Act, s 17A(3) says that the failure to comply with the above procedure does not invalidate a sentence. According to Petreski v Cargill (1988) 79 ALR 235 at p 243, it is not necessary that the provisions of s 17A(2) be specifically referred to by a judicial officer required to apply them, as long as reasons are given which make it clear why a sentence of imprisonment was thought to be the only appropriate one.

4.3.2 New South Wales

In New South Wales, legislative restrictions on imposing sentences of imprisonment apply only to justices of the peace. In New South Wales, s 80AB of the Justices Act 1902 prohibits justices of the peace from sentencing a person to full-time imprisonment unless they are satisfied that no other sentence is appropriate. When sentencing a person to prison, the sentencing justice is required to state that all possible alternatives were considered before the jail sentence was imposed: s 80AB(2). However, the terms of the section do not specifically require that a justice of the peace must state the reasons for his decision that no other sentence is appropriate.

4.3.3 Victoria

Section 5(4) of the Sentencing Act 1991 (Vic) prohibits a court from passing a sentence that involves confining the offender unless the court considers that the purpose for which the sentence is imposed cannot be otherwise achieved.

However, under s 5A of the Sentencing Act (inserted by the Sentencing (Amendment) Act 1993), if a court, in sentencing a serious sexual offender for a sexual or violent offence or a serious violent offender for a serious violent offence, considers that a prison sentence is warranted, then the court, in deciding how long the sentence should be, is directed that it must regard the protection of the

28 Crimes Act 1914 (Cth), s 29A.

29 Crimes Act 1914 (Cth), s 29D. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 15 community from the offender as the principal purpose for which the sentence is imposed.30 To achieve that purpose, the sentencing court may impose a sentence longer than that which is proportionate to the gravity of the offence when considered in the light of its objective circumstances.31 As explained in the Second Reading Speech to introduce the 1993 amendments: The Bill gives a clearly expressed statutory authority to courts when determining the appropriate sentence that they need not be constrained by the common law principle of proportionality which effectively prevents a court from imposing a sentence beyond what is proportionate to the crime. The government believes that in protecting the community from sexual and violent offenders the courts should not be so restrained.32

4.3.4 South Australia

Section 11 of the Criminal Law (Sentencing) Act 1988 (SA) provides that a sentence of imprisonment must not be imposed unless, in the court’s opinion: · the offender has demonstrated violent tendencies towards others, · the offender is likely to commit a serious offence if allowed to go at large, · the offender has been convicted before of an offence punishable by imprisonment; or · a sentence other than imprisonment would be inappropriate, in view of the seriousness of the offence or the circumstances surrounding the offence.

Section 19 of the Criminal Law (Sentencing) Act, inserted by the Criminal Law (Sentencing) Miscellaneous) Act 1995 places limitations on the sentencing powers of magistrates courts. Section 19(1) prohibits a Magistrates Court from imposing a sentence of imprisonment unless it is actually constituted by a magistrate. Even where a magistrates court is so constituted, it does not have the power to impose a sentence of imprisonment in excess of two years: s 19(3) of the Criminal Law (Sentencing) Act and s 28A of the Acts Interpretation Act 1915 (SA).

30 Sentencing Act 1991 (Vic), s 5A (a).

31 Sentencing Act 1991 (Vic), s 5A (b).

32 Sentencing (Amendment) Bill 1993 (Vic), Second Reading Speech, Mrs Wade (Attorney- General), Victorian Parliamentary Debates, 29 April 1993, p 1355. Page 16 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

4.3.5 Western Australia

Section 17A(4) of Western Australia’s Criminal Code states that a court is not to impose a jail sentence unless, in the court’s opinion: · the seriousness of the offence makes imprisonment the only appropriate penalty: s 17A(4)(a), or · a sentence of imprisonment is required to protect the community: s 17A(4)(b).

The seriousness of the offence is to be determined by considering the statutory penalty for the offence, the circumstances in which the offence was committed, any aggravating factors, and any mitigating factors: s 17A(2).

The WA Criminal Code also requires a court which imprisons an offender to give written reasons why no other available sentencing option was appropriate. However, this requirement to give reasons only applies when an offender is sentenced to a term of imprisonment of six months or less: s 19A(1a).

Western Australia’s Sentencing Act 1995 (s 6(4)) also provides that a court is not to sentence an offender to imprisonment unless it decides that either the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.

4.3.6 Australian Capital Territory

In the Australia Capital Territory, restrictions on imposing sentences of imprisonment for offences against the law of the territory are contained in s 429C of the Crimes Act 1900 (ACT). The provision is couched in identical terms to s 17A of the Commonwealth Crimes Act.

4.3.7 Northern Territory

In the High Court decision in R v Vasin (1985) 61 ALR 701 per White J at p 704, that provision of the Commonwealth Crimes Act which restricts a court from imposing a sentence of imprisonment unless it is satisfied that no other sentence is appropriate was described as “ ... reflect[ing] a well established and normally- observed sentencing principle”.33

33 For additional authorities in support of this proposition, refer to Halsbury’s Laws of Australia at para 130-170050. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 17

However, as explained in Halsbury’s Laws of Australia, the common law principle that a sentence of imprisonment should only be imposed as a measure of last resort can be overridden by “... a clear legislative intention”.34 In the Northern Territory, the common law principle has been overridden in relation to certain offences against the Misuse of Drugs Act 1990 (NT). Section 37(2) of the Misuse of Drugs Act provides that, when a person is sentenced for an offence under the Act for which the maximum penalty is seven or more years imprisonment, the court must impose a sentence of imprisonment unless, in view of the particular circumstances of the offence or of the offender, it believes this sanction should not be imposed. The same principle applies to offences for which the maximum sentence is less than seven years imprisonment if the offence is accompanied by an aggravating circumstance.

It appears from the Second Reading Speech to the NT Misuse of Drugs Bill 1990 that the term of imprisonment provided for in s 37(2) of the Act was intended for offenders involved in drug transactions in places where young people congregate, such as schools and licensed premises.35

Commenting upon the legislation, the Chief Justice of the Northern Territory, Asche CJ, said: It seems to me that s 37(2) rather reverses the rule which normally applies in sentencing procedures, which is that all other alternatives must normally be examined before the ultimate deterrence of a prison sentence. Under s 37(2), it seems to me that the balance is swung the other way. The injunction upon the court is that it shall, where the circumstances warrant it, impose a sentence requiring the person to serve a term of actual imprisonment. So that seems to be the prima facie rule. If a person comes within the category of s 37(2)(a) or (b), then it seems to me that the intent of the legislature is plain that a sentence of imprisonment should be imposed unless there are particular circumstances.36

In Maynard v O’Brien (1991) 78 NTR 16 at p 22, the court defined “particular circumstances” in s.37(2) to mean “circumstances sufficiently noteworthy or out of the ordinary”, relative to the offence or the conduct of the offender, to warrant a prison sentence. A particular circumstance of the offender to which s 37(2)

34 Halsbury’s Laws of Australia, para 130 - 17050.

35 Misuse of Drugs Bill 1990 (NT), Attorney-General’s Second Reading Speech, Northern Territory Parliamentary Debates, 25 May 1989, pp 6531-32, quoted in Maynard v O’Brien (1991) 78 NTR 16 at p 20.

36 Fejo v Ilett, 26 February 1991, Asche CJ, Supreme Court of the Northern Territory, unreported, at p 8, quoted in Maynard v O’Brien (1991) 78 NTR 16 at p 18. Page 18 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 specifically enjoins the court to have regard is the age of the offender where the offender is less than 21 years of age.

5. THE RANGE OF SENTENCING OPTIONS

According to Findlay, Odgers and Yeo, on a gradated scale of penalties, the main sentencing options available throughout Australia’s criminal jurisdictions include: · imprisonment · periodic detention (eg weekend detention) · suspended sentences of imprisonment · fines · compensation or restitution · probation orders · community service orders · good behaviour bonds · admonition and discharge · finding of fact but no conviction.37

According to Findlay, Odgers and Yeo: The fine is by far the most popular penalty in Australia, followed by bonds and probation orders. In New South Wales for example, fines and bonds comprise 78% of the total sentences handed down by the criminal courts (fines 56%, bonds 22% - 1991). Detention in custody only accounts for 9% of the total.38

However, as these authors point out, the use of custodial versus non-custodial sentences appears to differ, according to the characteristics of the offender. For example, Aboriginal prisoners in New South Wales are tending to be imprisoned for individual offences which are on average not that different to those of non-Aboriginal offenders. However, whilst they are receiving significantly shorter average minimum terms, they are being imprisoned at rates almost eight times that of non-Aboriginal offenders.39

37 Mark Findlay, Stephen Odgers and Stanley Yeo, Australian Criminal Justice, Oxford University Press, Melbourne, 1994, pp 203-205.

38 Findlay, Odgers and Yeo, p 205.

39 Findlay, Odgers and Yeo, pp 205-206. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 19

Although sentencing aims and guidelines are generally prescribed by legislation, the penalties which may be imposed for offences are rarely ordered according to their relative severity. The end result is that: ... sentencers may be at a loss as to whether a community service order is only to be used in lieu of imprisonment, whether such an order is to be regarded more as a punitive measure or for rehabilitative purposes, and how it is to be compared with, say, a probation order.40

One jurisdiction whose legislation does provide some guidance as to the relative severity of different penalties is Victoria. As stated previously, s 5 of Victoria’s Sentencing Act provides that a sentence involving confinement must not be imposed unless the purpose for which the sentence is imposed cannot be achieved by a sentence that does not involve confinement. Furthermore, an intensive correction order must not be imposed unless the purpose for which the sentence is imposed cannot be achieved by a community-based order: s 5(5). A community based order cannot be imposed unless the purpose for which the sentence is imposed cannot be achieved by a fine: s 5(6). Finally, a fine cannot in turn be imposed unless the purpose for which the sentence is imposed cannot be achieved by dismissing, discharging or adjourning the charge: s 5(7).

5.1 SENTENCING OPTIONS UNDER THE PENALTIES AND SENTENCES ACT

In the previous section, the range of sentencing options generally available in Australia was outlined. This section describes those options specifically available under Queensland’s existing Penalties and Sentences Act, together with the changes which the Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 proposes to make to: · the factors to which a court is to have regard when deciding whether an offender should be made to serve the whole of a suspended sentence, and · the definition of violent offence in relation to indefinite sentences.

5.1.1 Restitution and Compensation

Sections 34 to 43 deal with orders for restitution and compensation. Section 35(1)(c) allows the court to make an order for compensation for personal injury suffered by a person because an offence was committed, whether or not the person is the victim against whom the offence was committed.

40 Findlay, Odgers and Yeo, p 233. Page 20 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

Restitution or compensation orders may be made whether or not the court records a conviction: s 34. Specific orders may be made, for example, prescribing the time within which and the way in which the restitution is to be made or the compensation is to be paid: s 36(1). Under s 36(2), the court may make an order that an offender is to be imprisoned if he fails to comply with an order for restitution or compensation (though the term of imprisonment may not exceed one year41).

5.1.2 Fines

Under s 44 of the Penalties and Sentences Act, a fine may be imposed whether or not the court records a conviction. Prior to the enactment of the Penalties and Sentences Act, a court could not impose a fine if it did not record a conviction. The maximum fine which a Magistrates Court may impose on an individual is 165 penalty units ($12,375): s 46(1)(a)(i). The fine limit in the District Court for an individual is 4175 penalty units ($313,125): s 46(1)(b). In the Supreme Court, there is no quantum limit on the fines that may be imposed, on either an individual or a corporation: s 46(2)(b).

5.1.3 Fine Option Orders

Fine option orders must be offered to an offender even if the offender is not before the court. Under s 53 of the Penalties and Sentences Act, if an offender is before the court when the court imposes a fine on the offender, for default of payment of which the offender will be sentenced to imprisonment, the court must tell the offender that he or she may immediately verbally apply for a fine option order: s 53. If the offender is not before the court when the order is made, written notice must be given to the offender informing the offender of his or her right to apply for a fine option order: s 54. A requirement of a fine option order is that community service must be performed: s 66(1)(b). The maximum number of hours of community service to be performed under a fine option order must not exceed 10 hours for each penalty unit originally imposed as a fine: s 69. The community service imposed under a fine option must usually be served within twelve months of the making of the order: s 66(2).

41 for an indictable offence: s 37(a). Where the offence is a summary offence, the maximum term of imprisonment for which the order may provide is six months: s 37(b). The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 21

5.1.4 Community Based Orders

Community based orders refer to probation orders, community service orders, and intensive correction orders: s 4.

Probation Orders

A court may make a probation order where it convicts an offender of a regulatory offence, or an offence punishable by imprisonment: s 91. Under the pre-existing law, a probation order could not be made unless a term of imprisonment could have been imposed as part of the punishment.42 The Penalties and Sentences Act allows a court to make a probation order whether or not it records a conviction: ss 90-91. According to Michael Quinn: This represents a significant change. Previously, once an offender had successfully completed the probation, then, for all intents and purposes there was no conviction recorded. One of the main benefits of probation may therefore be lost in certain cases.43

An offender can be sentenced to a term of imprisonment of six months, then placed on probation at the end of that term (a s 92(1)(b) probation order). However, where this is done, the court must record a conviction: s 91(b).

Every probation order is to contain the seven conditions laid down in s 93(1). These include the requirements that the offender must not commit another offence while on probation, must report to an authorised Corrective Services Commission officer as directed by the officer, and must take part in counselling and other programs as directed by the court or an authorised Commission officer. Other requirements may also be laid down (eg that the offender submit to medical or psychiatric treatment: s 94(1)(a), make restitution of property: s 94(1)(c), or pay compensation for personal injury or damage caused to property: ss 94(1)(d)&(e)). An offender must agree to being placed on probation: s 96.

Community Service Orders

Where a community service order is imposed on an offender, the offender must perform unpaid community service for the number of hours specified in the order: s 102. As is the case with probation orders (above), a court may make a community service order whether or not it records a conviction: s 100, and may make such an order in relation to either a regulatory offence or an offence punishable by

42 Quinn, p 13.

43 Quinn, p 13. Page 22 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 imprisonment: s 101. Again, like probation orders, an offender must agree to the making of a community service order. Probation orders may be made in conjunction with community service orders, but the two orders must be separate, and one must not be imposed as a condition of the other: s 109.

Intensive Correction Orders

The provisions in the Penalties and Sentences Act relating to intensive correction orders commenced on 1 September 1994. Michael Quinn has described these types of orders as “... a new and welcome sentencing option”.44 An intensive correction order may only be made where a court sentences an offender to a term of imprisonment of one year or less: s 112. If a court makes an intensive correction order, it must record a conviction: s 111. An intensive correction order can be imposed only if the offender consents: s 117.

Where a court imposes an intensive correction order, the effect is that the offender serves the term of imprisonment by way of intensive correction in the community, rather than in a prison: s 113. In introducing the Penalties and Sentences Bill 1992 to the Legislative Assembly, Hon D M Wells MLA described the intensive correction order as “... fill[ing] a gap between straightforward community service at the lower end of the scale and imprisonment at the higher end of the scale”.45 Remissions do not apply to sentences served by way of intensive correction in the community.

5.1.5 Suspended Sentences

While, prior to the enactment of the Penalties and Sentences Act, the suspended sentence option already existed in a diluted form in s 656 of the Criminal Code (1899) , it had “... largely fallen into disuse”.46 According to Hon D M Wells MLA’s Second Reading Speech to introduce the Penalties and Sentences Bill 1992, its re-introduction as a viable sentencing option served to expand “... the armoury of sentencing options available to courts which may impose a considerable

44 Quinn, p 13.

45 Penalties and Sentences Bill 1992 (Qld), Second Reading Speech, Hon D M Wells MLA, Queensland Parliamentary Debates, 5 November 1992, p 160.

46 Penalties and Sentences Bill 1992 (Qld), Second Reading Speech, Hon D M Wells MLA, Queensland Parliamentary Debates, 5 November 1992, p 161. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 23 punishment on an offender which stops short of depriving the offender of liberty, employment and effective rehabilitation within the community”.47

Where a court imposes a sentence of imprisonment of five years or less on an offender, it may order that the term of imprisonment be suspended: s 144(1), but only if it is satisfied that it is appropriate to do so: s 144(2). If the court makes an order of suspended imprisonment, it must record a conviction: s 143.

A court must not give a suspended sentence if it is satisfied, in view of the provisions of the Penalties and Sentences Act, that it would be appropriate that the offender actually be imprisoned: s 144(4). A sentence of imprisonment may be suspended wholly or partially: s 144(3).

If an offender is subsequently convicted of an offence for which imprisonment may be imposed and the offence was committed during what is known as the operational period of the suspended sentence, the court has the power to order that the offender serve all or part of the suspended imprisonment: s 147. Although s 147(1) of the Act only says that the court “may” (not must) order imprisonment, s 147(2) says that the court must order the offender to serve the whole of the suspended imprisonment unless it believes that “it would be unjust to do so in view of all the circumstances that have arisen since the suspended imprisonment was imposed”.

Where the court does decide that it would be unjust to order the offender to serve all of the suspended sentence of imprisonment, it must give reasons for its opinion: s 147(3).

As the Full Court of the Federal Court pointed out in Davey [1980] 2 A Crim R 254 at p 262, a suspended sentence of imprisonment should not be viewed as “merely an exercise in leniency”. The court said:

Such an order is made in the community interests and is generally designed to prevent re-offending - which a prison sentence, standing alone, seldom does. In the present case, it is to be noted that the Trial Judge placed the respondent under a bond which required him to submit to supervision for the entire period of three years. A person so released has an obvious incentive not to re-offend and should have no misconception as to what will occur if he does.48

47 Penalties and Sentences Bill 1992 (Qld), Second Reading Speech, Hon D M Wells MLA, Queensland Parliamentary Debates, 5 November 1992, p 161.

48 quoted in O’Gorman, p 24. Page 24 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

The Proposed Amendments

Clause 7 of the Penalties and Sentences (Serious Violent Offences) Amendment Bill amends s 147(2) of the Penalties and Sentences Act by omitting the words “in view of all the circumstances that have arisen since the suspended sentence was imposed”. Existing s 147(3) becomes s 147(4), and a proposed new s 147(3) is inserted. This provides that, in deciding whether it would be unjust to order an offender to serve the whole of the suspended imprisonment, the court must have regard to: · whether the subsequent offence is trivial: proposed new s 147(3)(a); · the seriousness of the original offence: proposed new s 147(3)(b), and · any special circumstance that has arisen since the original sentence was imposed and which makes it unjust to impose the whole of the suspended sentence: proposed new s 147(3)(c).

In deciding whether the subsequent offence is trivial in nature, the court is directed to look at a number of factors, including the nature of the offence, the circumstances in which the offence was committed, and the offender’s antecedents and criminal history. Appendix D reproduces in full the factors to which a court will be required to have regard in deciding whether it would be unjust to order an offender to serve the whole of a suspended sentence of imprisonment.

The proposed amendments have their basis in concerns about a lack of clarity as to the interpretation to be placed upon s 147(2) of the Penalties and Sentences Act, for example: · whether the offender’s antecedents can be taken into account: R v Muller; R v Carrell; · whether the trivial nature of the subsequent offence can be taken into consideration: R v Holley.

Copies of these cases, to which the Minister refers in his Second Reading Speech, are available from the Queensland Parliamentary Library.

As explained by the Minister in his Second Reading Speech, the proposed amendments: ... will still ensure that the primary focus is to require the whole of a suspended sentence to be served if the person comes back before the court for an offence for which the person may be imprisoned, but that a lesser term may be ordered to be The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 25

served if the subsequent offence is genuinely trivial or if other special or limited circumstances have arisen.49

5.1.6 Imprisonment

A court may not make an order of imprisonment unless it records a conviction: s 152. A fine may be imposed in addition to, or instead of, imprisonment: s 153(2).

Where a person has been held in custody for an offence, and is subsequently convicted, s 158 allows the court to direct that the term of imprisonment is to run from the day the offender was arrested. A term of imprisonment does not run while an offender is on bail awaiting the outcome of an appeal against sentence: s 158A. Nor does it run while a prisoner is at large after escaping from custody: s 159.

5.1.7 Indefinite Sentences

Section 163 of the Penalties and Sentences Act allows a court to impose an indefinite sentence on an offender who has been convicted of a violent offence, in lieu of a fixed term of imprisonment.

“Violent offence” is defined to include: · an indictable offence involving the use or attempted use of violence against the person, for which an offender may be sentenced to life imprisonment, and more serious sexual offences, for which an offender may be sentenced to life imprisonment (eg anal intercourse with a child under the age of 12 years, or with a child under 16 if the offender is the child’s guardian50; unlawful carnal knowledge of an intellectually disabled person who is not the lineal descendant of the offender but the offender is the person’s guardian or takes care of that person51; rape52).

O’Gorman has criticised the indefinite sentencing provisions of the Penalties and Sentences Act on the ground that the definition of violent offence in s 162:

49 Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 (Qld), Second Reading Speech, Hon D E Beanland MLA, Queensland Parliamentary Debates, 19 March 1997, p 601.

50 Criminal Code (1899) (Qld), s 208

51 Criminal Code (1899) (Qld), s 216(3)(a).

52 Criminal Code (1899) (Qld), s 348. Page 26 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

... not only covers offences carrying potential life imprisonment where the offence is accompanied by violence or a threat of violence, but it also covers ... sexual offences where there is no violence.

A court may impose an indefinite sentence, either: · on its own initiative, or · upon application by a Crown prosecutor: s 163(1).

Before an indefinite sentence may be imposed, the court must be satisfied: · that Part 4 of the Mental Health Act does not apply, and · that the offender is a serious danger to the community because of

· the offender’s antecedents, character, age, health or mental condition, and

· the severity of the violent offence, and

· any special circumstances: s 163(3).

The prosecution carries the onus of proving that an offender is a serious danger to the community: s 169. Specifically, the Act states that the court must be satisfied by “acceptable, cogent evidence” and to “a high degree of probability” that the evidence is of sufficient weight to justify a finding that an offender is a serious danger to the community: s 170.

Where the court imposes an indefinite sentence, it is required to state the term of imprisonment it would have imposed if it had not imposed an indefinite sentence (this is known as the “nominal sentence”): s 163(2). Where a court imposes an indefinite sentence, it must review it within six months after the offender has served half of the nominal sentence or, if the offender’s nominal sentence is life imprisonment, within six months of the offender having served 13 years of that nominal sentence: s 171(1)(a). After that, the court must then review the indefinite sentence at intervals of not more than two years: s 171(1)(b). Unless the court is satisfied that the offender still remains a serious danger to the community, the court, upon review of an indefinite sentence order, must order that the indefinite sentence be discharged and sentence the offender for the violent offence for which the indefinite sentence was imposed: s 173.

The Proposed Amendments

To achieve consistency with the proposed new definition of “serious violent offence”,53 Clause 11 of the Penalties and Sentences (Serious Violent Offences)

53 Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 (Qld), Explanatory Notes, p 7. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 27

Amendment Bill amends part (a)(i) of the definition of “violent offence” in s 162 of Part 10 of the Penalties and Sentences Act by omitting the words “use, or attempted use, of” and substituting the words “use of, counselling or procuring the use of, or attempting or conspiring to use”.

6. CUMULATIVE SENTENCES

This section outlines the existing provisions of the Penalties and Sentences Act governing concurrent versus cumulative sentences (Section 6.1), and compares them with the proposed amendments contained in the Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 (Section 6.2). Section 6.3 discusses concurrent and cumulative sentencing in conjunction with the common law principle of totality, which requires that sentences imposed should reflect “... the total criminality for which the offender is to be sentenced, whether the sentences are made concurrent or cumulative”.54 Section 6.4 looks at legislative provisions in force in other Australian jurisdictions which require courts to impose cumulative sentences in particular circumstances, including when sentencing for an offence committed in prison (as proposed in the Queensland amendments). Section 6.5 examines some of the concerns that have been raised in relation to cumulative sentencing provisions. Section 6.6 looks at the special case where an offender sentenced to life imprisonment commits another offence.

6.1. CONCURRENT VERSUS CUMULATIVE SENTENCES - THE CURRENT POSITION

Sections 155 and 156 of the Penalties and Sentences Act contain the provisions which currently apply to the imposition by the courts of concurrent and cumulative sentences in Queensland.

Section 155 provides that, unless otherwise ordered by the court or provided for by the Penalties and Sentences Act, if an offender is serving, or has been sentenced to serve, a term of imprisonment for an offence, and is sentenced to serve imprisonment for another offence, the sentence imposed is to be served concurrently with the first offence. Provision for cumulative sentences is made by s.156, which gives the court a discretion to decide whether a sentence should be served concurrently or cumulatively. Thus s 156 provides that, where an offender is serving, or has been sentenced to serve imprisonment for an offence, and is sentenced to prison for another offence, the period of imprisonment for the other offence may be ordered to start from the end of the term of imprisonment the

54 Halsbury’s Laws of Australia, para 130-17045. Page 28 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 offender is serving, or has been sentenced to serve (ie it may be ordered to be served cumulatively). (Commenting upon ss 155 and 156, Terry O’Gorman of Robertson O’Gorman, Solicitors, has said that the provisions “... restate the long established law ... that imprisonment orders are to be concurrent unless the Court expressly states them to be cumulative”.55)

A discretion to determine whether sentences should be served concurrently or cumulatively is also granted to courts by statute in most of the other Australian states and territories.56

6.2 THE PROPOSED AMENDMENTS

Clause 8 of the Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 inserts a proposed new s 156A into the Penalties and Sentences Act. Under proposed new s 156A, if an offender is convicted of an offence listed in the Schedule included in the amending Bill, or of counselling or procuring the commission of, attempting to commit, or conspiring to commit, a Schedule offence, while he or she: · was serving a prison sentence; · on parole; · on leave of absence from a term of imprisonment; · serving a period of home detention, or · at large after having escaped from lawful custody, then any sentence of imprisonment imposed for that offence will have to be served cumulatively upon any other sentence the offender is liable to serve.

6.3 THE PRINCIPLE OF TOTALITY

In Mill v R, the High Court of Australia described the totality principle as “... a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences”.57 In summary, the principle says that, when an offender is being sentenced for more than one offence, or where, at

55 Terry O’Gorman, p 3.

56 Crimes Act 1914 (Cth), s 19; Crimes Act 1900 (NSW) s 444; Criminal Law (Sentencing Act) 1988 (SA), s 31; Criminal Code (Tas), s 391(1B); Criminal Code (NT), s 405(3); Crimes Act 1900 (ACT), s 433(5).

57 Mill v R (1988) 83 ALR 1 at p 3. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 29 the time of sentencing, the offender is already serving a sentence for another offence, the court should consider the totality of the criminality for which punishment is being imposed, so as to ensure that the aggregate sentence ordered to be served does not exceed what is appropriate. According to Thomas, Principles of Sentencing, quoted with approval by the High Court in Mill: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong’; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.58

The application of the totality principle may lead to sentences which would otherwise be cumulative being made concurrent. Alternatively, individual sentences might be reduced in recognition that more than one sentence is being imposed. Legal text writers and the judiciary appear to incline to the view that, of these two options, the imposition of concurrent sentences is to be preferred. For example, Thomas on Sentencing, citing R v Smith [1975] Crim LR 468, says: Where the totality of the sentences does appear to be excessive and some adjustment is necessary, it is usually preferable to make the adjustment by ordering sentences to run concurrently, rather than by reducing the length of individual sentences and allowing them to remain consecutive. The court has stated that a series of short consecutive sentences adding up to a substantial total is generally inappropriate; ‘it is better to pass ... an appropriate sentence on each count and make those sentences run concurrently’. Where concurrent sentences are passed for offences of differing gravity, the sentences imposed for the less serious offences should not be disproportionate to the particular offences for which they are imposed, even though the length of these sentences will not affect the total period for which the offender is liable to be detained.59

58 Thomas, Principles of Sentencing, 2nd edn, 1979, p 57, quoted in Mill v R (1988) 83 ALR 1 at p 3.

59 Thomas, Principles of Sentencing, 2nd edn, 1979, p 57, quoted in McDonald v R (1994) 120 ALR 629 at p 631. Page 30 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

According to the High Court in Mill : Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.60

6.4 IMPOSING CUMULATIVE SENTENCES IN SPECIAL CIRCUMSTANCES

In a number of Australian jurisdictions provisions have already been enacted requiring cumulative sentences to be imposed in particular circumstances. Statutory provisions requiring a sentence for an offence committed while the offender was in custody to be cumulative are outlined first. Reference is then made to other circumstances in which specific provision has been made for cumulative sentences.

6.4.1 Offences Committed While in Custody

Victoria

Section 16(1) of the Sentencing Act 1991 (Vic) provides that any term of imprisonment imposed on a person must be served concurrently with any other uncompleted sentence of imprisonment or detention in a youth training centre imposed on that person, unless the court otherwise orders. Section 16(1) must, however, be read subject to s 16(1A). Section 16(1A)(b) states that s 16(1) does not apply where a sentence of imprisonment is imposed on a prisoner for a prison offence. Section 16(3) specifically provides that a sentence of imprisonment imposed on a prisoner for an offence committed while in prison is to be served cumulatively with any uncompleted sentence of imprisonment or detention in a youth training centre, unless the court otherwise orders because there are exceptional circumstances.

Australian Capital Territory

Section 443(3) of the Crimes Act 1900 (ACT) provides that sentences for offences committed in prison are to be cumulative upon any other unexpired sentence or sentences of imprisonment, unless otherwise ordered.

60 Mill v R (1988) 83 ALR 1 at p 3. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 31

New South Wales

The NSW Crimes Act 1900 provides for the imposition of cumulative sentences for certain types of prison offences only. Section 444(3) of the Crimes Act provides that a sentence for assault or any other offence against the person committed by a person serving an uncompleted sentence of penal servitude or imprisonment must be served cumulatively upon any previous sentence, unless the judge or magistrate otherwise directs.

There are, however, some restrictions upon the imposition, by magistrates, of cumulative sentences. Section 444(4) prohibits a magistrate from imposing more than one sentence of imprisonment or penal servitude to be served cumulatively on any other sentence of imprisonment or penal servitude to be served or being served by an offender. Nor may a magistrate impose sentences of imprisonment or penal servitude to be served consecutively totalling more than three years. An exception applies where the offence(s) involve an assault on a prison officer in the execution of his or her duty: s 444(5).

6.4.2 Other Situations

New South Wales

Under s 34(1) of the Prisons Act 1952 (NSW)61, a prisoner who escapes or attempts to escape from custody is liable to imprisonment for a period not greater than ten years. Section 34(2) states that a prison sentence imposed for a prison escape or attempted escape is to be served cumulatively on any other sentence that has been imposed by the court or is to be served.

Victoria

Reference has already been made in Section 6.4.1 to the requirement in s 16(3) of the Sentencing Act 1991 (Vic) that a sentence imposed on a prisoner for a prison offence must be served cumulatively on any other unexpired sentence of imprisonment or detention in a youth training centre, unless the court otherwise directs.

In Victoria, sentences of imprisonment imposed · on a prisoner for an escape offence: s 16(3); or

61 In 1996, this Act was renamed the Correctional Centres Act 1952: Prisons Amendment Act 1996. Page 32 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

· on a serious sexual offender for a sexual or violent offence: s 16(3A), or · on any offender for a sexual or violent offence committed while on parole for a sexual or violent offence: s 16(3B), must also be served consecutively upon any other uncompleted sentences of imprisonment or detention, unless the court otherwise directs: Sentencing Act 1991.

South Australia

Section 31(2) of the Criminal Law (Sentencing) Act 1988 (SA) provides that a sentence of imprisonment imposed for an offence committed while the offender is on parole or while serving a term of imprisonment for a breach of parole conditions will be served cumulatively upon the sentence or sentences for which the offender was on parole. Like s 34(2) of the NSW Prisons Act, s 31(2) is not subject to a proviso of the kind “unless the court otherwise orders” (ie in both cases, the direction is a blanket direction that such a sentence is to be served cumulatively).

Section 31(3) specifically provides that a direction of the kind provided for in s 31(1) may be made, regardless of the number of cumulative sentences that the offender is already serving or will be liable to serve because of the direction.

However, where an offender is already subject to a sentence of life imprisonment, another sentence imposed for an offence committed on parole or for a breach of parole conditions is not to be made cumulative: s 33(2). (See Section 6.6 of this Bulletin for a fuller discussion of this point.)

6.5 COMMENTS ON CUMULATIVE SENTENCING

In 1993, the Victorian Government introduced amendments to the Sentencing Act 1991, in the form of the Sentencing (Amendment) Act. The amendments made it mandatory for sentences imposed on a prisoner for an escape offence, on a serious sexual offender for a sexual or violent offence, or on any offender for a sexual or violent offence committed during the parole period of a sentence imposed for a sexual or violent offence, to be served cumulatively, unless otherwise directed by the court because of the existence of exceptional circumstances. The Sentencing Act had, since its enactment in 1991, already contained a requirement that a sentence of imprisonment imposed on a prisoner for a prison offence, was to be served cumulatively, unless the court ordered otherwise.

The introduction of the amendment Bill occasioned debate, in Parliament and throughout the wider community, on the merits of concurrent versus cumulative The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 33 sentencing. A cross-section of comments is presented here.62 The major concern expressed was the likelihood that the use of cumulative sentencing would result in excessive total sentences. For example, Dr David Brereton of the Department of Legal Studies at La Trobe University suggested in evidence to the Victorian Scrutiny of Acts and Regulations Committee that cumulative sentencing might result in terms of 300 years imprisonment being imposed.63 Professor Arie Frieberg suggested that juries might be unwilling to convict because of the jury being aware that an offender might receive a sentence of over a century in prison.64

Concerns were also raised about the application of cumulative sentencing principles to offences such as offences of a sexual nature, where one incident may give rise to multiple charges. For instance, according to Mr Kennan MP (ALP): When one looks at getting rid of concurrent sentences for a whole range of offences and introducing cumulative offences there is the bizarre proposition in sex offences where there are frequently multiple acts for the one presentment. A person who is convicted for a range of sexual assaults will serve 120 or 130 years imprisonment, and a person convicted of murder will serve 15 years.65

The Victorian Sentencing (Amendment) Bill 1993 made provision for indefinite as well as cumulative sentences. As in Queensland, specific provision was made by statute for indefinite sentences to be reviewed. The availability of review in the

62 Sentencing (Amendment) Bill 1993 (Vic), Second Reading Speech, Legislative Assembly, Mr Cole MP, Victorian Parliamentary Debates, 13 May 1993, p 1957.

63 Written Submission to the Scrutiny of Acts and Regulations Committee ((Vic), Dr David Brereton, Department of Legal Studies, La Trobe University, p 2, cited in Scrutiny of Acts and Regulations Committee, Alert Digest No.8, 13 May 1993, p 61 and in Sentencing (Amendment) Bill 1993 (Vic), Committee Stage, Legislative Assembly, Mr Perton (Lib), 13 May 1993, p 1969. In Parliament, Mr Perton said of Dr. Brereton’s statement: “That sort of submission presupposes that judges live in some sort of dream world” (p 1969).

64 Written Submission to the Scrutiny of Acts and Regulations Committee (Vic), Professor Arie Frieberg, cited in Scrutiny of Acts and Regulations Committee, Alert Digest No 8, 13 May 1993, p 61.

65 Sentencing (Amendment) Bill 1993 (Vic), Committee Stage, Legislative Assembly, Mr Kennan MP, Victorian Parliamentary Debates, 13 May 1993, p 1973. Page 34 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 case of indefinite sentences led Mr Cole MP to argue: ... that people who have committed more than one offence would be better off having indefinite rather than cumulative sentences; with cumulative sentences people may never get out but with indefinite sentences they might.66

By contrast, proponents of cumulative sentences, such as Mr Clark MP (Lib), argued: The argument is put that cumulative sentences are undesirable or unsatisfactory. I have difficulty understanding that argument. The converse is the case; it is concurrent sentences that are a nonsense; they make a mockery of the law because a person can commit a number of offences each of which render that person liable to a term of imprisonment, but he or she will serve only the one term of imprisonment in toto. That brings the system of law into disrepute. We do not want to aggregate sentences to ridiculous levels. However, there are straightforward ways of achieving an appropriate result by, for instance, structuring the sentences awarded in any particular case to lead to the appropriate total length of sentencing. However, if one accepts the notion of concurrent sentences one is accepting the notion that each additional offence does not warrant an additional punishment.67

Commenting upon the claims that the cumulative sentencing provisions could lead to extremely long sentences being imposed, the Attorney-General, in correspondence to the Chairman of Victoria’s Scrutiny of Acts and Regulations Committee, Mr Victor Perton MP, stated: There is not the remotest possibility of massive sentences in the order of 100 years being imposed under the relevant provisions of the Sentencing (Amendment) Bill. All the Bill does is restore the pre-1985 presumption in favour of cumulativity, unless a Court determines otherwise, a decision which a Court will always be free to make as it sees fit in the circumstances of the case. Sentences of the sort postulated by extreme critics of the Bill were never imposed before 1985, and there is absolutely no reason to suppose that they will be imposed in the future. 68

66 Sentencing (Amendment) Bill 1993 (Vic), Second Reading Speech, Legislative Assembly, Mr Cole MP, Victorian Parliamentary Debates, 13 May 1993, p 1956.

67 Sentencing (Amendment) Bill 1993 (Vic), Committee Stage, Legislative Assembly, Mr Clark MP, Victorian Parliamentary Debates, 13 May 1993, p 1974.

68 quoted in Scrutiny of Acts and Regulations Committee (Vic), Alert Digest No.8, 13 May 1993, p 61. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 35

6.6 THE SPECIAL CASE OF LIFE IMPRISONMENT

In R v Mickelo [1993] 1 Qd R 230, Queensland’s Court of Criminal Appeal held that no court may impose a sentence of imprisonment to be served cumulatively upon another sentence of life imprisonment. In this case, the offender had been sentenced to life imprisonment for murder. He was subsequently convicted of an assault upon a prison officer committed while in custody. The sentencing magistrate directed that the sentence for the second offence be served “... cumulative within the current period of imprisonment that you are serving”. Mickelo appealed against the sentence on the ground that, as he was already serving a sentence of life imprisonment, it was not possible to serve a cumulative term. In upholding the appeal against sentence, the court referred to a number of authorities to support the proposition that it is impossible to serve a sentence of imprisonment cumulatively upon a life sentence. For example, in Foy (1962) 46 Cr App R 290 at p 292, the Court of Criminal Appeal stated: Life imprisonment means imprisonment for life. No doubt, many people come out from life imprisonment while they are still alive, but if such a person does come out, it is only on licence, and the sentence of life imprisonment remains on him until he dies. Accordingly, if the court passes a sentence of any period of years consecutive to life, the sentence is no sentence at all in that it cannot operate until the prisoner dies. The court feel that, though they cannot substitute any sentence in this case, it is right to say that the sentence passed was wholly invalid, and that the proper sentence would have been one of fourteen years’ concurrent with the sentence of life imprisonment.69

In R v Farlow [1980] 2 NSWLR 166 Chief Justice Nagle said at p 169 “... it is obviously impossible to serve a term of imprisonment cumulatively on a life sentence”. In R v Farlow the offender was sentenced to penal servitude for life for murder. He subsequently escaped from prison and was sentenced to serve two years and six months for this offence, this sentence to be served after the expiration of the term of imprisonment to which he was subject at the time of his escape. The court held that, on the true interpretation of the Prisons Act, that part of s 34 of the Act, which made the sentence imposed for an escape or attempted escape cumulative upon the sentence being served at the time of the escape or attempted escape, has no application when the sentence being served is a life sentence. This was because, realistically, it is not possible to serve another sentence cumulatively on a life sentence.

The imposition of a sentence concurrent to a life sentence might, however, be taken into account when making decisions about a prisoner’s parole. For example, according to Moffat ACJ in R v Farlow at p 168:

69 quoted in R v Mickelo [1993] 1 Qd R 230 at pp 230-231. Page 36 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

As a sentence of imprisonment made concurrent upon a life sentence does not carry with it any judicial evaluation of the extra criminality of the second sentence, it is important that this be appreciated by those called upon to evaluate the total criminality of the prisoner, eg in relation to decisions such as release from imprisonment.

In South Australia, the absurdity of imposing a sentence cumulatively upon a life sentence is recognised by making the situation where one of the sentences to which an offender is subject is life imprisonment, the statutory exception to the requirement in s 16(2)of the Criminal Law (Sentencing) Act.

Under the proposed Queensland changes, recognising that a court cannot impose another sentence of imprisonment to be served cumulatively upon a life sentence: · the minimum period of time which prisoners sentenced to life imprisonment must serve before being eligible for parole will be increased from 13 to 15 years, and · offenders convicted of more than one murder, or convicted of one or more murders, having previously been convicted of murder, will be required to serve a minimum of 20 years in prison.70

7. MINIMUM TERMS AND ELIGIBILITY FOR PAROLE

The legislative provisions governing parole in Queensland can currently be found in the Penalties and Sentences Act 1992 and the Corrective Services Act 1988. This section of the Bulletin outlines the existing provisions and compares them with the proposed amendments. Comparisons are also made with minimum terms prescribed by legislation in other Australian jurisdictions.

7.1 THE CURRENT POSITION

Parole refers to “the discharge of prisoners from custody prior to the expiry of the maximum period of custody imposed by the sentencing court, provided they agree to abide by certain conditions, with the intention that they serve some portion of

70 Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 (Qld), Second Reading Speech, Hon D E Beanland MLA, Queensland Parliamentary Debates, 19 March 1997, p 599. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 37 their sentence under supervision in the community, subject to recall for misconduct”.71

Under s 165 of the Corrective Services Act, the Queensland Community Corrections Board may direct that a prisoner serving a term of imprisonment be released on parole on a date specified in a written order of the Board. Section 166(1) (a) of the Corrective Services Act says that, where a person has been sentenced to a term of life imprisonment, the person is not eligible for release until he or she has served 13 years. In the case of any other offender sentenced to a term of imprisonment, the offender is not eligible for release on parole until he or she has served at least 50% of the period of imprisonment to which he or she was sentenced: s 166(1)(b). Section 166(1) is expressed to be subject to s 157 of the Penalties and Sentences Act.

Section 157(2) of the Penalties and Sentences Act provides that a court may recommend an offender be eligible for release on parole after having served a period of imprisonment specified by the court. According to case law, that period may be more or less than half the sentence imposed which the prisoner would have to serve under s 166(1)(b) of the Corrective Services Act (ie if no recommendation was made by the court). R v Chitty [1990] 2 Qd R. 431; R v Griinke [1992] 1 Qd R 196. While it is clear that a judge may postpone the date on which a prisoner may be considered eligible for parole beyond the half-way point of a sentence, in R v Griinke, the Court of Criminal Appeal held that there would usually be little utility in making a recommendation against parole until a very late stage in the sentence ( ie well past the mid-point of the sentence). However, the court held that if there were strong reasons for believing that an offender would never be a suitable candidate for parole and that the possibility of the offender changing during the jail term was unlikely, then a sentencing judge might pre-empt the Community Corrections Board by making a recommendation. In Griinke’s case itself, the offender had been sentenced to eight years’ imprisonment with a recommendation that he should not be considered for parole until after seven years. On appeal, a sentence of twelve years imprisonment was imposed with a recommendation that parole be considered after four and a half years.

71 S Mackey, ‘Parole - Background, Machinery and Statistics’, in NACRO, Parole - The Case for Change, London, 1979, p 8, cited in New South Wales Law Reform Commission, Sentencing, Discussion Paper 33, NSWLRC, Sydney, April 1996, p 268. Page 38 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

7.2 THE PROPOSED AMENDMENTS

7.2.1 Multiple Murders and Repeat Murders

Section 305 of the Criminal Code (1899) provides that the punishment for murder is imprisonment for life (or an indefinite sentence under Part 10 of the Penalties and Sentences Act).

Clause 19 of the Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 amends s 305 of the Criminal Code to provide that where a court is sentencing a person: · for more than one conviction of murder; or · on one conviction of murder and another offence of murder is taken into consideration, or · on a conviction of murder, where the person has previously been sentenced for another offence of murder, then the sentencing court must make an order that the person is not to be released from prison until he or she has served a minimum of 20 or more specified years of imprisonment, unless the person is released sooner under s 166(4) of the Corrective Services Act due to special circumstances.

Section 305 of the Criminal Code (1899) was not previously the subject of any recommendations for change by the Criminal Code Advisory Working Group in its July 1996 report to the Attorney-General.

Clause 24 omits the existing s 166(1)(a) of the Corrective Services Act and replaces it with a provision that says that a prisoner serving a life sentence, to whom the above provision (proposed new s 305(2) of the Criminal Code) applies, is not eligible for parole until he or she has served the period specified under an order made under s 305(2) or 20 years (ie if no order was made).

In introducing the amendments to the House, Hon D E Beanland MLA stated: The Government went to the people at the last election and promised that: “We will amend legislation so that, in instances involving multiple murders or repeat murder offenders, a court will have the option of sentencing the criminal for a minimum number of years in excess of a set minimum of 20 years. This will then become the minimum sentence for the criminal to serve”.72

72 Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 (Qld), Second Reading Speech, Hon D E Beanland MLA, Queensland Parliamentary Debates, 19 March 1997, p 599. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 39

7.2.2 Other Life Sentenced Prisoners

Currently a prisoner serving a term of life imprisonment is not eligible for parole until he or she has served 13 years: s 166 Corrective Services Act. Clause 24 amends s 166 of the Corrective Services Act so that this period will be increased to 15 years for life sentenced prisoners to whom proposed new s 305(2) of the Criminal Code does not apply: proposed new s 166(1)(b).

7.2.3 Serious Violent Offences

Under proposed new s 166(1)(c) of the Corrective Services Act, a prisoner who is serving a prison term for a serious violent offence will not be eligible for parole until he or she has served: · 80% of the term of imprisonment to which he or she was sentenced, or · 15 years, whichever is the lesser.

In the case of serious violent offenders, an amendment is also made to s 157 of the Penalties and Sentences Act by inserting a proposed new sub-section (7): Clause 9. Under the proposed change, the court that sentences a serious violent offender will be unable to make a recommendation under s 157 to reduce the period of imprisonment the offender must serve before being eligible for release on parole under proposed new s 166(1)(c) of the Corrective Services Act: proposed new s157(7)(a). Nor will any other court be able to make such a recommendation: proposed new s 157(7)(b).

7.2.4 Other Cases

In cases other than those already referred to above, prisoners will be eligible for parole when they have served 50% of the term of imprisonment to which they were sentenced: proposed new s 166(1)(d) of the Corrective Services Act.

7.2.5 A Comparative Survey

ALRC Recommendations

In 1988, the Australian Law Reform Commission, in its report on Sentencing, recommended that, as a general rule, 70% of the period of a custodial order should Page 40 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 be spent in prison, and that this should be prescribed in legislation.73 In reaching this conclusion, the Commission argued: Truth in sentencing demands that the proportion of a custodial order to be spent in prison should be significant. There are also benefits in ensuring that the length of time during which the offender is to be subject to parole conditions is not unduly long. The normal condition, supervision, tends to cease to be a useful condition over time - after, at the most, two years, supervision of offenders is seen to be of limited value. ...This scheme will not only have the advantage of certainty and consistency but it will be readily understood by offenders, the courts and the public alike. Decisions made by courts in fixing the length of custodial orders (head sentences) will be made taking into account the fact that the legislatively prescribed portion of the period will be served in prison.74

The Australian Law Reform Commission recommended that the sentencing court should retain a discretion to reduce the 70% proportion if “exceptional circumstances” existed to justify it. However, it was the Commission’s view that the proportion of the custodial period which should be served in jail should never be reduced below 50%.75

The Position in Other Jurisdictions

New South Wales

In New South Wales, the relevant legislation is the Sentencing Act 1989. Section 3 of this Act provides that the objectives of the legislation are: · to promote truth in sentencing by requiring convicted offenders to serve in prison (without any reduction) the minimum term or fixed term of imprisonment set by the court; and · to provide that prisoners who have served their minimum terms of imprisonment may be considered for release on parole for the residue of their sentences.

The legislation only applies when a convicted person is sentenced to a period of imprisonment. When this happens, s 5 of the Sentencing Act requires a sentencing court to firstly fix a minimum jail term that the prisoner must serve, and then to set an additional term during which the offender may be released on parole. Under s 5(2) of the Act, the additional term must not be greater than one-third of the

73 Australia. Law Reform Commission, Sentencing, Report No 44, AGPS, Canberra, 1988, p 43.

74 ALRC, p 43.

75 ALRC, p 43. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 41 minimum term (ie there is a pre-determined ration of 3:1 between the minimum and additional terms), unless the court is of the opinion that special circumstances exist.

While the court may not, in the absence of special circumstances, fix an additional term greater than one-third of the minimum term, it is not constrained under the legislation from setting an additional term of less than one-third of the minimum term : R v GDR (1994) 35 NSWLR 376.

Sentences of Six Months or Less

An exception to the above principles applies where the minimum and additional terms together would not exceed six months. Where this would otherwise be the case, the sentencing court must set a fixed term of imprisonment (ie prisoners sentenced to terms of six months or less are not eligible for parole).

Commentary

In its Discussion Paper on Sentencing, the New South Wales Law Reform Commission has criticised s 5(2) of the Sentencing Act on the ground that its effect is to: ... limit substantially the exercise of judicial discretion in passing sentence upon an offender. In the absence of “special circumstances”, the duration of the offender’s parole is limited to a maximum of one quarter of the total sentence.76

Northern Territory

Under s 54(1) of the Sentencing Act 1995 (NT), where a person is sentenced to prison for 12 months or more, the court must fix a non-parole period of not less than 50% of the period of imprisonment. In addition, s 54(2) provides that the above non-parole period must not be less than eight months. The court retains a discretion to decide that it is not appropriate to fix a non-parole period at all. Where an offender is convicted of having sexual intercourse without consent, and sentenced to prison, s 55 of the Sentencing Act requires that a non-parole period of at least 70% of the sentence to be served be imposed. As is the case under s 54, the court may consider that the fixing of a non-parole period is inappropriate: s 55(2). However, there is no discretion in the court to reduce the proportion of the sentence which must be served before a prisoner is eligible for parole below 70%.

76 New South Wales Law Reform Commission, Sentencing, Discussion Paper 33, April 1996, p 83. Page 42 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

Western Australia

In Western Australia, the Sentencing Act 1995 requires that offenders serving prison sentences of six years or less must serve one-third of their terms before becoming eligible for parole. Prisoners serving sentences longer than six years are not eligible for parole until two years prior to having served two-thirds of their term.

However, where a person has been convicted of murder (wilful murder), the sentencing court must prescribe a minimum period of at least seven (15) and not more than 14 (19) years which the prisoner must serve before being eligible for parole.

Tasmania

In Tasmania, by virtue of ss 12A and 12C of the Parole Act 1975, the non-parole period where someone is sentenced to imprisonment is set at one-half of the length of the sentence, or six months, whichever is the longer, unless there are exceptional circumstances which warrant the offender being released on parole earlier. Section 12B(1)(d) of the Parole Act gives the sentencing court the power to order that a person sentenced to a term of imprisonment should not be eligible for parole at all. The sentencing court may also fix a non-parole term that is greater than one-half of the sentence of imprisonment: s 12B (2).

The remaining jurisdictions do not appear to fix a proportionate relationship between the sentence of imprisonment handed down and the non-parole period specified.

8. REMISSIONS

Remission of a sentence of imprisonment “operates to reduce a sentence so that the offender may be released unconditionally before the date on which the term of the sentence expires”.77

In his Second Reading Speech to the Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997, Hon D E Beanland MLA stated: The remissions scheme may currently result in a release from prison at approximately two-thirds of the sentence imposed where that sentence is one of imprisonment for two (2) months or longer. The remissions scheme operates whether or not a prisoner is eligible to apply for parole or to take part in release programs.

77 New South Wales Law Reform Commission, Sentencing, p 76. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 43

Some prisoners prefer not to take parole at half time but wait until their release after remission so that they are not subjected to the supervision which would take place under parole. There will be no remissions for serious violent offenders.78

This is given effect to in proposed new s 161D of the Penalties and Sentences Act (inserted by Clause 10 of the 1997 Bill) which prohibits sentences of offenders convicted of serious violent offences from being remitted under the Corrective Services Act.

78 Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 (Qld), Second Reading Speech, Hon D E Beanland MLA, Queensland Parliamentary Debates, 19 March 1997, p 598. Page 44 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 45

BIBLIOGRAPHY

BOOKS

· Australia. Law Reform Commission, Sentencing, Report No 44, AGPS, Canberra, 1988.

· Findlay, M, and Odgers, S and Yeo, S, Australian Criminal Justice, Oxford University Press, Melbourne, 1994

· Halsbury’s Laws of Australia.

· Morris, D (comp), Contemporary Australian Issues, v 1, Thorpe in association with the State Library of Victoria, 1993.

· New South Wales. Law Reform Commission, Sentencing, Discussion Paper No 33, April 1996.

· Queensland. Criminal Code Advisory Working Group, Report to the Attorney- General, July 1996.

MONOGRAPHS

· Australia. Law Reform Commission, Sentencing, Report No.44, AGPS, Canberra, 1988 · O’Gorman, T, ‘Penalties and Sentences Act 1992-3’, in The Penalties and Sentences Act and the New Prostitution Laws: Papers Presented at the Seminar held on Wednesday, 21 July 1993, Queensland Law Society

SUBMISSIONS

· Brereton, Dr D, Written Submission to the Scrutiny of Acts and Regulations Committee (Vic), Department of Legal Studies, La Trobe University

ARTICLES

· Ashworth, A, ‘Ways out of the abyss? Reflections on punishment in Western Australia’, University of Western Australia Law Review, 22(2), December 1992, pp 257-271. · Brezniak, D, ‘Truth in sentencing: new legislation analysed’, Law Society Journal, 27(7), August 1989, pp 48-51. · Brown, D, ‘What truth?’, Legal Service Bulletin, 14(4), August 1989, pp 161- 163. Page 46 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

· Frieberg, Professor A, Written Submission to the Scrutiny of Acts and Regulations Committee (Vic), in “Scrutiny of Acts and Regulations Committee (VIC)”, Alert Digest No.8, 13 May 1993 · Quinn, M, ‘The Penalties and Sentences Act 1992’, Proctor, January/February 1993, pp 12-14.

NEWS ARTICLES

· Dore C, ‘Violent criminals face tougher jail terms’, The Australian, 16 March 1996, p 7. · Greber J, ‘Govt gets tough on lifers with new laws to increase jail time’, Courier Mail, 20 March 1997, p 2. · Metcalf F, ‘Qld’s violent criminals to do more time’, Courier Mail, 17 March 1997, p 3. · Morley P and Thomas M, ‘Sentencing laws to limit early parole’ Courier Mail, 3 December 1996, p 3. · Thomas, M, ‘Prison timebomb’, Courier Mail, 3 December 1996, p 13.

CASES · Coles v Samuel [1972] 2 SASR 488. · Lahey v Sanderson [1959] Tas S R 17. · Maynard v O’Brien (1991) 78 NTR 16 · McDonald v R (1994) 120 ALR 629 · Mill v R (1988) 83 ALR 1 · R v Bainbridge (1993 unreported) Court of Appeal, Qld, 25 October 1993, CA 286, 284, 285/93. · R v Brown, ex parte Attorney-General [1994] 2 Qd R 182. · R v Chitty [1990] 2 Qd R 431. · R v Carrell (1996 unreported) Court of Appeal, Qld, CA 372/95. · R v Farlow [1980] 2 NSWLR 166 · R v GDR (1994) 35 NSWLR 376. · R v Griinke [1992] 1 Qd R 196. · R v Holley (29 November 1996, unreported), Court of Appeal, Qld, CA 332/96. · R v Lennard [1984] 1 Qd R 1. · R v Mickelo [1993] 1 Qd R 230. · R v Muller (11 August 1995, unreported), Court Of Appeal, Qld, CA 133/95. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 47

· R v Ozdemir (1993 unreported), Court of Appeal, Qld, 22 November 1993, CA 361/93. · R v Price [1978] Qd R 68. · R v Vasin (1985) 61 ALR 701. · Radenkovic v R (1990) 97 ALR 198.

LEGISLATION

New South Wales · Crimes Act 1900 · Sentencing Act 1989 · Justices Act 1902 · Prisons Act 1952 Western Australia · Sentencing Act 1995 Tasmania · Parole Act 1975 Northern Territory · Sentencing Act 1995 · Misuse of Drugs Act 1990 · Criminal Code Australian Capital Territory · Crimes Act 1900 South Australia · Criminal Law (Sentencing) Act 1988 Commonwealth · Crimes Act 1914 Victoria · Sentencing Act 1991 Tasmania · Criminal Code Page 48 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 49

APPENDIX A

QUEENSLAND NATIONAL LIBERAL COALITION

POLICY ON SERIOUS VIOLENT OFFENCES (1995)

The National and Liberal Coalition believes that where an offence has been committed the punishment should fit the crime. The style and severity of punishment should be clearly and precisely stated so that it is understood by offenders, victims of crime and the broader community.

Violent offenders cause severe damage to the fabric of our society. The community is entitled to expect government protection. Punishment should fit the crime.

The governing principles of the Labor Government’s Penalties and Sentences Act states that jail is a last resort for all offenders. The Coalition will amend the Penalties and Sentences legislation to better reflect the community’s grave concerns with serious violent offences which will ensure criminals serve their sentences. The Coalition will ensure that punishment fits the crime. Serious violent offenders will go to jail and serve their sentences. The Courts have highlighted the shortcomings of Labor’s legislation.

* The Coalition will introduce into the Penalties and Sentences legislation a section dealing with serious violent offences that reflects our concern for community safety as well as community outrage with this form of crime.

* When a Court sentences an offender to a term of imprisonment for a serious violent offence, an offender must serve at least 80% of the sentence before being eligible for release on parole. There will be no remissions. Criminals will not be eligible for work release, day release or other release programs until they have served at least 80% of their sentence. Punishment will fit the crime.

* In determining the appropriate length of a custodial sentence for a serious violent offender a Court will take into account the protection of the community as a primary sentencing consideration.

* Serious violent offences will include rape, child molestation, armed robbery, serious assault, violent attacks in the home and attempted murder. Because of the enormous damage done in the community by drug trafficking, those convicted of this offence will be treated similarly.

* We will amend legislation so that in instances involving multiple murders or repeat murder offenders a Court will have the option of sentencing the criminal for a minimum number of years in excess of a set minimum of 20 years. This will then become the minimum sentence for the criminal to serve. Page 50 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

* Where a convicted offender commits an offence while in prison the additional sentence shall be served cumulatively to the sentence being served and not concurrently. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 51 Page 52 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

APPENDIX B

Penalties and Sentences Act 1992 (Qld)

PART II - GOVERNING PRINCIPLES

Sentencing Guidelines

9. (2) In sentencing an offender, a court must have regard to¾ a) principles that¾ i) a sentence of imprisonment should only be imposed as a last resort; and ii) a sentence that allows the offender to stay in the community is preferable; and b) the maximum and any minimum penalty prescribed for the offence; and c) the nature of the offence and how serious the offence was, including any physical or emotional harm done to a victim; and d) the extent to which the offender is to blame for the offence; and e) any damage, injury or loss caused by the offender; and f) the offender’s character, age and intellectual capacity; and g) the presence of any aggravating or mitigating factor concerning the offender; and h) the prevalence of the offence; and i) how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences; and j) time spent in custody by the offender for the offence before being sentenced; and k) sentences imposed on, and served by, the offender in another State or a Territory for an offence committed at, or about the same time, as the offence with which the court is dealing; and l) sentences already imposed on the offender that have not been served; and m) sentences that the offender is liable to serve because of the revocation of order made under this or another Act for contraventions of conditions by the offender; and n) if the offender is the subject of a community based order - the offender’s compliance with the order as disclosed in a report given by an authorised Commission officer; and o) anything else prescribed by this Act to which the court must have regard; and p) any other relevant circumstance. The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 53 Page 54 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

APPENDIX C

Penalties and Sentences Act 1992 (Qld)

PROPOSED NEW SECTION 9(4)

‘(4) In sentencing an offender to whom subsection (3) applies, the court must have regard primarily to the following¾

(a) the risk of physical harm to any members of the community if a custodial sentence were not imposed;

(b) the need to protect any members of the community from that risk;

(c) the personal circumstances of any victim of the offence;

(d) the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;

(e) the nature or extent of the violence used, or intended to be used, in the commission of the offence;

(f) any disregard by the offender for the interests of public safety;

(g) the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;

(h) the antecedents, age and character of the offender;

(i) any remorse or lack of remorse of the offender;

(j) any medical, psychiatric, prison or other relevant report in relation to the offender;

(k) anything else about the safety of members of the community that the sentencing court considers relevant.’ The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 55 Page 56 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

APPENDIX D

Penalties and Sentences Act 1992 (Qld)

PROPOSED NEW S 147(3)

(3) In deciding whether it would be unjust to order the offender to serve the whole of the suspended imprisonment the court must have regard to¾

(a) whether the subsequent offence is trivial having regard to¾

(i) the nature of the offence and the circumstances in which it was committed; and

(ii) the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment; and

(iii) the antecedents and any criminal history of the offender; and

(iv) the prevalence of the original and subsequent offences; and

(v) anything that satisfies the court that the prisoner has made a genuine effort at rehabilitation since the original sentence was imposed, including, for example¾

(A) the relative length of any period of good behaviour during the operational period; and

(B) community service performed; and

(C) fines, compensation or restitution paid; and

(D) anything mentioned in a pre-sentence report; and

(vi) the degree to which the offender has reverted to criminal conduct of any kind; and

(vii) the motivation for the subsequent offence; and

(b) the seriousness of the original offence, including any physical or emotional harm done to a victim and any damage, injury or loss caused by the offender; and

(c) any special circumstance arising since the original sentence was imposed that makes it unjust to impose the whole of the term of suspended imprisonment.’ The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997 Page 57 Page 58 The Penalties and Sentences (Serious Violent Offences) Amendment Bill 1997

APPENDIX E

This appendix contains the following news items:

· Dore C, ‘Violent criminals face tougher jail terms’, The Australian, 16 March 1996, p 7.

· Morley P and Thomas M, ‘Sentencing laws to limit early parole’ Courier Mail, 3 December 1996, p 3.

· Metcalf F, ‘Qld’s violent criminals to do more time’, Courier Mail, 17 March 1997, p 3.

· Greber J, ‘Govt gets tough on lifers with new laws to increase jail time’, Courier Mail, 20 March 1997, p 2. Title Sentencing laws to limit early parole.

Author MORLEY, PETER ( 5544 )

THOMAS, MARTIN

Source Courier Mail ( 59 )

Date Issue 03/12/96

Pages 3

CRIMINALS jailed for serious violent Tougher parole provisions would put a offences will serve at least 80 per cent of further strain on Queensland's prison system, their terms before qualifying for parole under where the population has increased by 71 per tougher Queensland sentencing laws. cent in the past three years.

The laws are being overhauled in Six hundred new cells will become available conjunction with a revision of the criminal with completion of the Woodford jail next code that increases penalties for a wide range year, while this year's state Budget of offences, proposes a new offence of torture announced another new jail and a women's and makes provision for computer crime. prison would be built in south-east Queensland. The code's revamp by Attorney-General Denver Beanland was approved by State Longer-term planning could involve the Cabinet yesterday and this week will be construction of a jail at Warwick, on the introduced to Parliament, where it will Darling Downs. remain on the table for public input. Mr Beanland said the proposed criminal Mr Beanland hopes to take planned changes code was "very much a document for to the Penalties and Sentences Act to Cabinet Queensland - a living document, without by December 16 or in mid-January after politics". ministers return from their Christmas break. "These proposed changes mean that Yesterday, he said that while life Queensland will soon boast some of the imprisonment was 13 years, the average toughest, and fairest, laws in the nation.". sentence now involved 18 years. In addition to tripling the maximum penalty "Certainly it is being extended over time as for assault and creating a new crime of community reaction sets in to some of these torture with a maximum penalty of 14 years' very light sentencing provisions for what are jail, the new code sets a two-year maximum quite heinous, violent offences," Mr jail term for a person who makes Beanland said. unauthorised use of a computer and a computer hacker can be jailed for five years. "The point is that serious violent offenders will be looked upon to serve at least 80 per Penalties for wilful damage, stealing and cent of their sentences under the penalties fraud will be increased, police will have and sentences legislation amendments when greater powers to combat break-and-enter they come forward.". crimes and children will be protected through a broadening of the definition of At present, a prisoner has to serve at least 50 cruelty. per cent of a court- imposed sentence before qualifying for parole.

Copyright Provision: Copy recorded for Parliamentarians only.

Disclaimer: No responsibility is taken for any transmission errors New home invasion laws are also included in the legislation, but Mr Beanland said the details would be released later this week.

Opposition justice spokesman Matt Foley said the overhaul represented a scissors and glue job instead of the comprehensive reform of the criminal code undertaken by Labor but not implemented.

Bond University criminologist Paul Wilson criticised the Government's move to lengthen jail terms.

"The overwhelming evidence is that increased prison terms do not do anything to reduce the crime rate," Professor Wilson said.

"It will only cause a cost blow-out that will take money away from roads, health and other services which Queenslanders take for granted.".

It was likely that the changes could backfire on the community and actually lead to more crime, he said.

Catholic Prison Ministry co-ordinator Helen Gadsen said the Government had to look at alternatives to longer sentences to tackle the crime rate and the problem of jail overcrowding.

"There must be a realisation that locking people up and throwing away the key is not going to solve the underlying problems of crime and imprisonment rates," Ms Gadsen said.

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Disclaimer: No responsibility is taken for any transmission errors Title Violent criminals face tougher jail terms.

Author DORE, CHRISTOPHER

Source Australian ( 80 )

Date Issue 16/03/96

Pages 7 saying it was destructive and gave no scope VIOLENT criminals face tougher penalties for Juveniles to be rehabilitated. in Queensland as the new Coalition Government moves to strengthen the powers Mr O'Gorman also attacked the of judges to impose longer sentences. Government's intention to abolish the provision that jail be regarded as a last The Attorney-General, Mr Beanland, said resort, claiming it would amount to yesterday he would move quickly to lengthen "sentencing chaos". prison sentences for violent criminals. He said that because the rest of the nation Mr Beanland said the State's sentencing had similar rules adopted in case law, legislation was a farce and would be changed scrapping it in Queensland would lead to because it instructed judges to consider jail large discrepancies and inconsistency in as a last resort for offenders and restricted sentencing between States. them from handing down heavy penalties. But Mr Beanland said it was "just a farce" He also said the Government was committed and that judges were prevented from giving this year to changing legislation to ensure longer sentences because of its existence. that "serious violent criminals" served at least 80 per cent of their sentence. Mr O'Gorman rejected the claim, saying it simply did not match the reality as sentences The promise Of a tougher stance comes as for violent and sexual crimes had in fact the new Attorney-General moved to lengthen increased since it was legislated in 1992. penalties through appeal in a number of high- profile cases in recent weeks. He said the provision ensured that judges considered other options before imposing a Mr Beanland has promised stricter sentences Jail sentence, It did not force them to give for Juvenile murderers after a 17-year-old more lenient penalties. was jailed for a maximum 14 years this month over the murder of a two-year-old Mr Beanland said: "If I was a judge, it would girl. certainly have an impact on me if the Parliament tells me a clear direction (and) He has also appealed against the sentence of philosophy of the whole thing. 47-year-old mother of 10, Kathleen Lister, who was jailed last week for nine years - but "The facts are we have got to look at the could be freed in 18 months - after she legislation to beef it up, make the relevant helped bury and later burn two of her changes," he said. children murdered by their de facto father. "We have made it quite clear and the public But the vice-president of the Queensland of Queensland have made it quite clear at the Council for Civil Liberties, Mr Terry last election that in many cases they are O'Gorman, criticised the Government's plans outraged by the soft penalties that were to introduce indefinite sentences for youths, handed out under the former government.

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Disclaimer: No responsibility is taken for any transmission errors "And so what we're about is ensuring that the worst offenders get punished, the punishment does fit the crime, they serve theft sentences or largely serve their sentences and that there is a real effort made to rehabilitate them." Mr O'Gorman said that the Coalition would realise, when presented with the facts, that it had to translate its "populist rhetoric" while in Opposition into the responsibilities of government.

He said that, in reality, sentencing levels were already higher for serious crimes.

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Disclaimer: No responsibility is taken for any transmission errors Title Government gets tough on lifers with new laws to increase jail time.

Author Greber, Jacob

Source Courier Mail ( 59 )

Date Issue 20/03/97

Pages 2

MULTIPLE murderers would spend a ``Another can receive 10 years for attempted minimum of 20 years behind bars without murder and be out in less than five years. parole under legislation introduced into State Parliament yesterday. That's not justice - that's an insult to the victim and the community.". The non-parole period for offenders convicted for life also would increase from Meanwhile, Opposition women's affairs an average 13 years to 15 years. spokeswoman Judy Spence said women's groups were upset at the State Government's Attorney-General Denver Beanland said the lack of consultation on the proposed tougher penalties would substantially Criminal Code. increase jail time for prisoners serving life.

Currently, ``lifers" spent on average between 17 and 18 years in jail, but he said many served much less than that.

Mr Beanland introduced the changes to the Penalties and Sentences Act yesterday, and the Government intends to complete debate on the issue when the House rises next Wednesday.

The laws would ensure serious violent offenders sentenced to 10 years or more would serve at least 80 percent of their sentences.

For violent offenders sentenced to less than 10 years, the ``80 percent" rule would be at the discretion of judges.

The proposed legislation sets out more than 50 crimes which would become ``serious violent offences", subject to the 80 percent minimum.

These include a wide range of charges for manslaughter, paedophilia, torture, bomb hoaxes, incest, drug and assault offences.

``At the moment, a criminal can get 11 years for vicious rape and be out on the streets in six years," Mr Beanland said.

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Title Queensland's violent criminals to do more time.

Author Metcalf, Fran

Source Courier Mail ( 59 )

Date Issue 17/03/97

Pages 3

RAPISTS, paedophiles, armed robbers and In a recent case, Donald Jeffrey Sayers and other violent criminals will have to serve 80 Anthony John Frost burst into a suburban percent of their jail sentences before being Brisbane home and bound, gagged and eligible for parole under proposed legislation threatened to kill a family. expected to be introduced to State Parliament this week. Frost raped a 12-year-old girl during the home invasion. Attorney-General and Justice Minister Denver Beanland said yesterday that the Sayers had no role in the sex offence and changes to the Penalties and Sentences Act was sentenced to 12 years jail but the judge would force violent offenders sentenced to 10 recommended early parole after five years. years jail or more to serve at least 80 percent Queensland Council of Civil Liberties vice- of their sentences. president Terry O'Gorman said he was For those sentenced to more than five but opposed to shorter parole periods and the less than 10 years, it would be at the court's proposed changes would lead to the need for discretion as to whether to impose the 80 more jails. percent principle. "If you shorten the period a person is on Now, all criminals are eligible for parole parole, you shorten the period of their after serving half their sentences. supervision in the community and that is not for the benefit of the community," Mr But the proposed laws have already come O'Gorman said. under fire from civil libertarians, Victims of Crime and the Opposition. "Over the past six years the prison population in Queensland has increased by Victims of Crime senior development officer 66 percent and under this proposal there is John King said Mr Beanland was going to have to be more jails built if people "politicking" because very few violent are going to be spending longer in jail.". offenders were sentenced to more than 10 years jail. Opposition justice spokesman Matt Foley said the Government had failed to address He called for indeterminate sentencing for the causes of crime, particularly violent criminals and said, at the least, unemployment and poverty. offenders should be reassessed after serving their sentences rather than being "Despite the Government's much-publicised automatically released. crime prevention summits in Brisbane and Townsville, it has failed to act to combat the He said judges were already too lenient in causes of crime and is now attempting to sentencing and called on the Government to save face by proposing further increases in introduce minimum terms. penalties," Mr Foley said.

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Disclaimer: No responsibility is taken for any transmission errors He said the Government needed to increase police numbers and cut lengthy delays in the court system.

Mr Foley and Mr O'Gorman also criticised the Coalition's proposed criminal code, expected to be debated in State Parliament this week.

Mr O'Gorman has attacked proposed provisions for scrapping the protection against self-incrimination in bribery trials and preventing a criminal from suing a person if injured while committing an offence, even if the force used is disproportionate to the crime.

Mr Foley said the new code would reduce the penalty for bribing a cabinet minister to seven years from 14 years, as proposed by the former Labor government.

"The maximum penalties for bribing a minister will now be exactly the same as for a youth found guilty of obscene graffiti," he said.

Mr Beanland said the latest proposals to increase penalties were the last part of a three-piece law and order package the Coalition promised in the lead up to the last election.

The Juvenile Justice Act and the proposed new criminal code already moved to crack down on crime by forcing parents to explain their child's behaviour to court and giving people a clear right to defend themselves and their homes.

The changes would ensure the court's primary consideration was protection of the community when sentencing serious violent offenders.

Mr Beanland said forcing criminals to serve 80 percent of their sentences would give them more time for rehabilitation but would also provide an incentive to leave jail earlier.

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