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Standing Committee on Legislation Sentencing

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Standing Committee on Legislation Sentencing STANDING COMMITTEE ON LEGISLATION SENTENCING MATRIX BILL 1999 INQUIRY TRANSCRIPT OF EVIDENCE TAKEN AT PERTH, WEDNESDAY, 13 SEPTEMBER 2000 Hon B.K. Donaldson (Chairman) Hon Derrick Tomlinson Hon W.N. Stretch Hon J.A. Cowdell (Substituted by Hon N.D. Griffiths) Hon Giz Watson Standing Committee on Legislation 13 September 2000 Page 1 Committee met at 2.00 pm FOSS, HON PETER GILBERT Da CONCEICAO, Attorney General, 12th Floor Dumas House, 2 Havelock Street, West Perth, examined: The CHAIRMAN: On behalf of the committee I welcome you to today’s meeting. Thank you for appearing again. You have signed a document entitled “Information for Witnesses”. Have you read and understood that document? Hon Peter Foss: I signed that document the last time I appeared; I have not done it this time. The CHAIRMAN: These proceedings are being recorded by Hansard. To assist the committee and Hansard, please quote the full title of any document you refer to during the hearing for the record. A transcript of your evidence will be provided to you. I remind you that your transcript will become a matter for the public record. If for some reason you wish to make a confidential statement during today’s proceedings, you should request that the evidence be taken in closed session. The committee will then decide whether it will grant your request. However, even if the committee receives evidence in closed session, I advise that your evidence will become public when the committee reports to the Legislative Council on the subject matter of the inquiry unless the committee resolves to request a suppression order of the Legislative Council. I further advise that until the committee reports on the inquiry you should not disclose any evidence taken in closed session, otherwise you may be charged with contempt of the Legislative Council. Would you like to make an opening statement to the committee? Hon Peter Foss: No. The CHAIRMAN: Some questions were provided in writing. We will have trouble getting through them, but we will do the best we can in the time available. You may be able to answer “yes” or “no” to some questions. If at any time you wish to give evidence in private session, please make that request of the committee. The first question relates to sentencing reports for reporting offences, regulated offences and controlled offences. Hon Peter Foss: The question 1 misses the point. Each offence is separately sentenced. We have not tried to deal with the totality principle, primarily because we thought we should walk before we run. Once we have had some experience of dealing with individual cases, we may have to look at that principle. It is far too complex at this stage. Each offence is separately sentenced at the moment. The totality principle operates when decisions are made about what will be concurrent and what will be cumulative. The total period a person spends in jail for all his offences still remains within the province of the judges. I would not pretend at this stage to feel competent to pass a matrix to deal with that. I do not think it makes the slightest difference. The CHAIRMAN: Please address question 2. Standing Committee on Legislation 13 September 2000 Page 2 Hon Peter Foss: We are totally puzzled by question 2(a). Judges pass sentences and they will continue to do so in the same way. The Ministry of Justice simply supervises those sentences. Question 2(b) relates to writing regulations on the basis of one offence and one person. That is true, but the offender is still sentenced for each offence. That is how it happens now and the totality principle applies in deciding whether he serves separate or concurrent periods of imprisonment. Question 2(c) relates to the Bill and the regulations addressing those concerns. It already addresses them. It deals with it on a one-sentence basis. It does not deal with the totality principle. It is too early to deal with that. The CHAIRMAN: Question 3 deals with division 3. Hon Peter Foss: The question asks whether it is proposed to develop a sentencing matrix to reflect the average of the sentences presently produced by the courts. That is what division 2 would be. We would bring in a division 3 only if we felt it was necessary. As I have said all along, I believe that with some matters, division 1 would probably be enough to have an impact. Division 2 would have a major impact on consistency. Judges might start sentencing at the extreme ends of the bell curve. Division 3 would be introduced only if one wanted to put pressure on the way the courts do things. We would not bring down a division 3 unless we wanted to make a change and were not happy with what was being shown by division 2. Hon DERRICK TOMLINSON: Does that mean that a decision could be made to progressively proclaim the Bill? Hon Peter Foss: We would not have to progressively proclaim the Bill. We would have the whole Bill but would not need regulations. Hon DERRICK TOMLINSON: Alternatively, we could proclaim divisions 1 and 2, but not division 3. Hon Peter Foss: There is no point in doing that. We should have it because we may want to use it. Proclaiming it makes no difference until we have a sentencing matrix approved by the Parliament. Division 3 is a framework for another set of enactments that must be initiated by the Executive; otherwise it goes through all sorts of processes that a Bill would go through. Question 3(b) asks whether it is proposed to develop a sentencing matrix that is designed to achieve something more. Yes, it is; but only if it is necessary. One of the issues being raised at the moment is dealing with seniors. It is stated that offences involving seniors should attract a more severe penalty. We must first establish the current sentencing with regard to that factor. It is already taken into account. If it is decided that it is not taken into account sufficiently, Parliament can move that something more should be done. Question 4 is interesting; in fact, it begs the question. It states - If certain offences are therefore singled out for directive sentencing by Parliament, how will consistency between sentences for different offences be maintained? We would not do it unless we wanted to change the consistency. Parliament tries to distinguish between various sentences by setting the maximum penalty. That is what Parliament is all about. We set the relativities; that is our job. There is no reason it should not set the relativities between different sentences and factors. It is up to us to decide when that change is to be made; that is what we are there to do. Question 5 refers to section 101K of proposed division 3. Standing Committee on Legislation 13 September 2000 Page 3 The CHAIRMAN: We said that we would leave questions 5 to 7 and deal with them later if there is time. I refer you to question 8. Hon Peter Foss: This question refers to a third stage. A third stage is included because it is very much a matter of community beliefs about what we have. It is like any form of Bill. The third stage will virtually be a piece of legislation coming before the Parliament. Unless it has the support of the Parliament, it will not be passed, and the Parliament will not give its support unless it has the support of the people. It is like any form of legislation - if we want it introduced and passed, we must consult people about what we are doing. The CHAIRMAN: You said earlier that you would be looking at setting up a committee to work through the process. Is that still the intention? Hon Peter Foss: I have asked the ministry to work with the judiciary to make the regulations practical. That is slightly different from what the penalty should be. They are certainly relevant people to consult about what is a proper sentence. However, they are the most vital people in terms of how it is put into practice. We have done that with the judicial sentencing information system. The mitigating and aggravating factors have been set out with a degree of emphasis. Members might like a copy of that. The CHAIRMAN: Yes. Hon Peter Foss: I have another document that I would like to provide to the committee. However, given that it might become public, I cannot provide it. Ms Betjeman: It is probably best that the Attorney provide it under cover of a letter containing his concerns and the committee will decide how it will treat the information. Hon Peter Foss: I cannot afford to have it become public. It is sentencing information that will become public in due course, but I cannot provide it at the moment. It indicates how those factors I have mentioned are applied in practice. The CHAIRMAN: I suggest that it not be provided. This is the grey area. Hon Peter Foss: It is important that the committee see it. This is the silly point. It is information that the committee must have, but I cannot provide it without a guarantee of its being kept private. Hon DERRICK TOMLINSON: We will wait until it screens at the Ambassador Theatre in cinemascope and technicolour. The CHAIRMAN: Parliament must consider this issue very seriously in the near future. It is restricting the ability of the committee. It is ridiculous. Hon Peter Foss: This document indicates what we see as the major mitigating and aggravating factors.
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