ASSAULTS ON EMERGENCY SERVICE WORKERS CONSULTATION PAPER NO 2 June 2012 About this Consultation Paper The reference to the Sentencing Advisory Council for this project was one of four referrals made by the then Attorney-General, Lara Giddings when the Council commenced in October 2010. This Consultation Paper addresses the capacity of How to respond Tasmania’s sentencing structure to deal with the sentencing of The Sentencing Advisory Council persons found guilty of assaults invites responses to the questions on emergency service workers in discussed in this Consultation Tasmania. It reviews the current Paper. The questions are both Tasmanian provisions applying summarised at the beginning of to assaults on emergency the paper and are also contained service workers and the in the relevant parts of the various measures taken in other paper so that the options can be jurisdictions in Australia and understood in context. overseas. It also reviews the nature and extent of assaults in You may choose to answer some The Sentencing Tasmania. or all of the questions and your Advisory Council answers may be referred to or The questions posed in this paper quoted in the final report. If you The Sentencing Advisory Council aim to inform the Council to do not wish your response to was established in June 2010 by enable it to make the appropriate be published or if you wish to the then Attorney-General, Lara recommendations to the remain anonymous please state Giddings. Attorney-General regarding the to that effect in your response. Acknowledgements suitability, or otherwise, of the After considering all responses, The Council was established, sentencing structure for assaults it is intended the final report will in part, as an advisory body to This Consultation Paper was on emergency service workers in contain recommendations and the Attorney-General. Its other prepared by Ms Lisa Gregg. Tasmania. advice to the Attorney-General functions are to bridge the gap Professor Kate Warner, a member and will be published. between the community, courts of the Council contributed to the This Consultation Paper is and Government by informing, content and editing of this paper. available on the Sentencing Responses should be made in educating and advising on The Council would like to thank Advisory Council Website at writing by Friday 3 August 2012. sentencing issues in Tasmania. The the Department of Justice for www.sentencingcouncil.tas.gov.au Council members consist of Mr access to their data, specifically or can be sent to you by mail or If possible they should be sent by Peter Tree SC (Chair,) Professor Mr Jonathon Rees for assistance email if you contact the Council email to [email protected], Kate Warner, Dr Jeremy Prichard, and sound advice. The Council by email at otherwise they can be mailed to Mr Norman Reaburn, Mr Phil would also like to thank, Tasmania [email protected], by letter the Sentencing Advisory Council, Wilkinson, Ms Kim Baumeler, Mr Police, WorkCover Tasmania and to GPO 825 Hobart 7001 or by GPO Box 825 Hobart 7001 or Chris Gunson, Mr Tony Jacobs Victims Support Service Tasmania phoning (03) 6233 4755. faxed to (03) 6233 3705. and Ms Liz Little. for their data. ISBN: 978-0-9873492-0-0 Assaults on Emergency Service Workers – hard copy ISBN: 978-0-9873492-1-7 Assaults on Emergency Service Workers – e book (PDF) Copyright © State of Tasmania – Department of Justice This work is copyright, however material from this publication may be copied and published by State or Federal Government Agencies without permission of the Department on the condition that the meaning of the material is not altered and the Tasmanian Department of Justice is acknowledged as the source of the material. Any other persons or bodies wishing to use material must seek permission. Contents About this Consultation Paper ii How to respond ii The Sentencing Advisory Council ii Acknowledgements ii List of questions posed in this Consultation Paper v Chapter One: Introduction 1 1.1 Terms of Reference 1 1.2 Background 1 1.3 Outline of the Consultation Paper 2 1.4 The definition of emergency service worker 2 Chapter Two: Provisions for emergency service workers in Tasmania 4 2.1 Tasmanian Criminal Law 4 2.2 Legislation relating to assaults against police officers 4 2.3 Legislation relating to other workplace assaults 5 Chapter Three: Provisions for workplace assaults in other jurisdictions 7 3.1 Introduction 7 3.2 Specific offence provisions 7 3.3 Penalty enhancement provisions 10 3.4 Sentence aggravation provisions 12 3.5 Mandatory minimum sentences 12 Chapter Four: Sentencing in Tasmania 15 4.1 The power to impose sentence 15 4.2 Sentences for assaulting police officers 15 4.2.1 The charging process 16 4.2.2 The relevant factors in sentencing an offender 16 4.2.3 Sentences for adult offenders pursuant to s 114 of the Criminal Code 17 4.2.4 Sentences for adult offenders pursuant to the Police Offences Act 1935 18 4.2.5 Sentences for juvenile offenders pursuant to the Police Offences Act 1935 20 4.3 Sentences for other workplace assaults 21 Chapter Five: The need for reform 23 5.1 Introduction 23 5.2 Part A – Assaults against police officers 23 5.2.1 The seriousness of assaults 24 5.2.2 The number of assaults 25 5.2.3 Interpretation of the data 26 5.2.4 Mandatory minimum sentences in Western Australia 26 5.3 Part B – Assaults against emergency service workers 28 5.3.1 Workers compensation claims 28 5.3.2 Assualts on ambulance and emergency staff 29 5.3.3 Victims Support Services 30 Chapter Six: Options for reform 32 6.1 The definition of an emergency service worker 32 6.2 Option 1 – No change 32 6.2.1 Tasmania Police 33 6.2.2 Emergency service workers 33 6.3 Option 2 – A new criminal provision 34 6.4 Option 3 – Penalty enhancement provisions and graduation of penalties 35 6.5 Option 4 – Sentence aggravation provisions 36 6.6 Option 5 – Mandatory minimum penalties and sentences 37 6.6.1 Special penalties and mandatory minimum penalties for summary offences 37 6.6.2 Mandatory minimum sentences 38 Appendix A 40 Abbreviations ABS Australian Bureau of Statistics ASCO Australian Standard Classification of Occupations DPP Director of Public Prosecutions GBH Grievous Bodily Harm POA Police Offences Act 1935 (Tas) SES State Emergency Service TFS Tasmania Fire Service VCS Victims of Crime Service VSS Victims Support Services iv Assaults on Emergency Service Workers - Consultation Paper No 2 (June 2012) Questions posed in this Consultation Paper Definition: page 32 exceeding 3 years if the emergency service worker assaulted suffers harm? How should ‘emergency service worker’ be defined? d) Should s 35 be amended to provide that where an Question 1 page 34 assault is committed on an emergency service worker there be maximum penalty not exceeding 50 penalty Do the existing laws and current sentencing practices in units or to imprisonment for a term not exceeding 2 Tasmania provide an adequate response to assaults on years? emergency service workers? e) Should s 35 have a graduation of penalties so that in Question 2 page 35 addition to a maximum penalty not exceeding 50 penalty Should Tasmania introduce further offences for an units or to imprisonment for a term not exceeding 2 assault on an ‘emergency service worker’ in the Criminal years for assaulting an emergency service worker, there Code or the Police Offences Act 1935? be a maximum penalty not exceeding 75 penalty units or to imprisonment for a term not exceeding 3 years if the Question 3 page 35 emergency service worker assaulted suffers harm? a) Should s 34B(1) of the Police Offences Act 1935 Question 4 page 37 have a graduation of penalties so that in addition to a maximum penalty not exceeding 50 penalty units or Should a special sentence aggravation provision be to imprisonment for a term not exceeding 2 years for inserted into the Sentencing Act 1997 to make an assault assaulting a police officer, there be a maximum penalty on an emergency service worker an aggravating factor in not exceeding 75 penalty units or to imprisonment for a sentencing? term not exceeding 3 years if the police officer assaulted Question 5 page 38 suffers harm? Should mandatory fines be considered in Tasmania for b) Should s 34B(2) be amended to provide that where a offenders who assault emergency service workers? public officer is an emergency service worker, there be a maximum penalty not exceeding 50 penalty units or to Question 6 page 38 imprisonment for a term not exceeding 2 years? Should any other type of mandatory penalty be c) Should s 34B(2) have a graduation of penalties so considered in Tasmania for offenders who assault that in addition to a maximum penalty not exceeding emergency service workers? 50 penalty units or to imprisonment for a term not exceeding 2 years for assaulting an emergency service Question 7 page 39 worker, there be a maximum penalty not exceeding Should mandatory minimum sentences be considered 75 penalty units or to imprisonment for a term not in Tasmania for offenders who assault emergency service workers? Assaults on Emergency Service Workers - Consultation Paper No 2 (June 2012) v 1. Introduction 1.1 TERMS OF REFERENCE 1.2 BACKGROUND The then Attorney-General, Lara Giddings sought Police officers and emergency service workers work advice from the Sentencing Advisory Council (the tirelessly in the community with the aim of protecting Council) into assaults on emergency service workers. and making it a safer place.