Northern Territory Second Reading Speeches

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JUVENILE JUSTICE AMENDMENT BILL 1999

Bills presented and read a first time.

Mr REED (Deputy Chief Minister): Mr Speaker, move that the bills be now read a second time.

These bills have 2 purposes: To amend the mandatory minimum sentencing regime as set out in the Sentencing Act, and to resolve certain unintended anomalies in the Sentencing Act in order to improve the effectiveness of the operation of sentencing laws in the Northern Territory.

On 8 March 1997, this government introduced laws which required the courts to impose a mandatory minimum prison term on persons convicted of certain property offences. The legislation was introduced at a time when there was considerable concern in the community about the level of break and enters, property damage and theft. There was also a great deal of dissatisfaction in the community about the perceived leniency of the courts when sentencing for these offences.

Mandatory sentencing has been in operation for more than 2 years. It is now appropriate to fine tune the regime and ensure that it is operating in the way the government intends. One of the most difficult problems with the present mandatory sentencing regime has been its application to offenders who have been found guilty of multiple offences. It is not uncommon for property offenders to face more than 1 charge. In fact, some offenders, particularly young offenders, may have accumulated a large number of charges on different informations, complaints, or indictments, and involving many occasions, before appearing before the court for sentence.

As a result of conflicting decisions of the Supreme Court, there is a degree of uncertainty about how mandatory sentencing impacts upon such offenders at present. These bills remove that uncertainty by changing the basis upon which the mandatory minimum sentence will be calculated in future.

Instead of the calculation being based on the number of findings of guilt for a property offence, the number of informations and the number of criminal enterprises, mandatory minimum sentencing now will be based on the number of appearances an offender makes before a court, to be sentenced for a property offence or offences.

Put simply, every time an adult offender comes before a court to be sentenced for a property offence or offences, he or she gets one term of the mandatory minimum jail sentence at the level determined by the number of times he or she has been sentenced previously, namely 14 days, 90 days or 12 months.

It is irrelevant whether or not the offences are on the same information, complaint or indictment, or whether they form part of a single criminal enterprise. The existence of multiple offences operates as an aggravating factor and increases the maximum sentence which is available to the court. The extent of aggravation is left as a matter for the court.

For example, if an adult offender with no previous convictions for property offences, is found guilty on 1 September 1999, of 3 property offences, committed over a period of 2 months, each on different informations and committed on different occasions, the mandatory minimum sentence of imprisonment for the offender will be one period of 14 days.

Let me make it clear that this does not mean that the offender will only be sentenced to 14 days imprisonment; rather, that he or she cannot get less than this. The exact sentence will depend upon the nature and seriousness of the 3 offences committed. If the 3 offences are all break and enter and involve the theft of substantial amounts of property that has not been recovered, I would expect the offender to get a lot more than 14 days gaol. If the 3 offences each involve minor criminal damage where full restitution had been made, 14 days imprisonment may be an appropriate sentence.

Mandatory minimum sentencing is all about providing a base line below which the courts cannot go because it is unacceptable to the community. Because of the endless variety of fact situations that may come before the courts, it is desirable, within the limits set by the baseline of mandatory minimum sentencing, to give some discretion back to the courts to determine the appropriate sentence. There are instances where young offenders are facing over 100 outstanding property offences. It was not the intention of this parliament to give such offenders a mandatory minimum sentence of over 100 years gaol, as some argue is possible under the present provisions. Such a result is not, and never was, intended.

These amendments will ensure that the legislation embodies the intention of the Parliament. The proposed amendments put the decision to re-offend, and therefore face a greater mandatory penalty, squarely in the offenders hands. An offender is sentenced to 14 days imprisonment at the first stage of mandatory sentencing. He or she will only get to the second stage of mandatory sentencing if he or she serves the 14 days, gets out of gaol and re-offends by committing more property offences. This is consistent with the approach of this government which focuses on individual responsibility. An offender is sentenced, serves his or her time, and then it is up to him or her whether or not to decide to re-offend and bring him or herself into the next level of mandatory minimum sentencing. If an offender does not learn his or her lesson after the first taste of mandatory sentencing, the second lesson will be more harsh.. He or she will spend 90 days in jail and if they are foolish enough to offend again, it will be a 12 month mandatory minimum jail term, and a further 12 months if they insist on reoffending.

This sentencing amendment bill also introduces an exceptional circumstances clause. Much has been said and written about whether the Territory will still have a mandatory minimum sentencing regime when it includes provision for exceptional circumstances. I can assure Territorians that this provision in no way detracts from the integrity of the mandatory minimum sentencing regime, but it recognises that there may be a very narrow and clearly defined category of cases where the community does not think a jail sentence is appropriate. The ability to raise exceptional circumstances is only available to adult first offenders found guilty of a single minor or trivial property offence.

Before a court can define that exceptional circumstances exist, it must find that the offender made, or has made, a great effort to make full restitution. The offender must be known to be of good character and have committed the offence in mitigating circumstances which significantly reduce culpability. He or she must also be able to demonstrate that the criminal behaviour was aberrant. In addition, it is necessary for the offender to have cooperated with police. If the court does not find that exceptional circumstances exist the offender will be sentenced to the mandatory minimum of 14 days imprisonment.

For example, imagine a young man, a good student or apprentice with a bright future who has never been in trouble in his life. One day he discovers that his partner has just walked out on him. In a fit of uncharacteristic frustration and despair he hits and breaks a window of a car parked in the street. A young man, immediately sorry for what he has done, knocks on doors until he finds the owner of the car, apologises and undertakes to pay for the damage. If prosecuted this young man may be able to establish exceptional circumstance. Like this young man, offenders who can make out exceptional circumstances will be truly worthy of removal from the mandatory minimum sentencing regime.

Honourable members will note that mitigating circumstances do not include intoxication due to alcohol or use of illicit drugs. Drunkenness is not an excuse. If a person who has had the benefit of the exceptional circumstances provision reoffends by committing another property offence or offences he or she will be sentenced to jail for 14 days.

The amendments also provide that a property offence which carries a mandatory minimum term of imprisonment is not to be served concurrently with another term of imprisonment; be it a property offence or a non property offence. The amendments in relation to property offences apply to an offender who is before the court at any time after the commencement of the legislation in respect of any offence, which was committed on or after 8 March 1997.

I have always supported the concept of mandatory minimum sentencing, and rejected the argument put by some, that government has no right to be involved in the sentencing of criminals. The parliament sets maximum penalties, so why is it unable to set minimum penalties? The community demands its government intervene and set the framework on many issues. If the community believes that the punishment meted out by the courts is not sufficient or appropriate, then governments have no option but to act upon the will of the people.

There has been concern among some people that by imposing mandatory minimum sentencing for property offences only, it may suggest to the courts and to the community that the parliament somehow considers those offences to be more serious than, for example, sexual and violent offences. This is certainly not the case, as I made clear when I first announced these measures in this Chamber in August 1996. I said then:

The Sentencing Amendment Bill makes this even clearer by broadening the base of offences to which mandatory minimum sentencing will apply. The bill provides that where an adult offender is sentenced by a court for the first time for a sexual offence under the Criminal Code, the court must sentence the person to a period of imprisonment, some part of which must be actually served. There are to be no second chances. Although the length of the sentence is left to the discretion of the courts, every offender must go to jail. This requirement is consistent with the community’s expectations of how such offences should be dealt with by the courts.

Violent offences will be in a similar category. Where an adult offender is sentenced by a court for a second or subsequent time for a violent offence under the Criminal Code, the court must sentence the person to a period of imprisonment, some part of which must actually be served. In contrast to sexual offences, the amendments allow an offender one chance if he or she commits a violent offence, but one chance only. The amendments in relation to sexual and violent offences apply to offences committed at any time after the commencement of the legislation. An offender who has already been found guilty of a violent offence is therefore warned that if he or she commits another violent offence, he or she will go to gaol.

I now turn to the amendments in the Juvenile Justice Bill. As honourable members will be aware the Juvenile Mandatory Minimum Sentencing Regime applies only to 15 and 16 year old offenders. It has no application to juveniles under the age of 15. Under the present provisions, when a juvenile first appears before the court to be sentenced for a property offence, the court has at its disposal the whole range of sentencing options including release without penalty, a bond, a fine, and a community service order. In fact most juvenile property offenders being sentenced for the first time are released without penalty because courts quite rightly give a juvenile every chance to avoid having a criminal conviction recorded against his or her name. The amendments do not alter this situation for juvenile first offenders.

What this bill does is add an element of flexibility for second stage offenders by providing that a juvenile sentenced by a court for a second property offence or offences may now be referred to a diversionary program. While there may be a variety of diversionary programs designed for particular groups and locations, it is intended that the first program will be based on victim/offender conferencing. However before being accepted into a program, offenders will be required to admit their guilt, accept responsibility for their actions and agree to participate in the program.

Under the victim/offender conferencing program, the offender must meet the victim, apologise, listen to the victim’s account of the damage caused by the offence and reach agreement for the victim to make appropriate restitution. This may take many forms and might include making monetary payments or providing a service such as mowing a victims lawn for an agreed number of weeks or months. The aim of the diversionary program is to give 15 and 16-year-old offenders one last chance before they face certain gaol. While providing this chance to offenders the bill also provides an opportunity to make amends to the victim and society in general. This is not an easy option. Indeed experience with similar programs elsewhere indicates that juveniles find participation in such programs very difficult. Many juvenile offenders have never before considered either consequences of their actions or the effects their actions may have on others.

If the juvenile satisfactorily completes the program, a report is prepared and presented to the court. The court may then dismiss the charge without penalty. But, Mr Deputy Speaker, the diversionary program is well and truly the last chance. If the juvenile commits another property offence, he or she will face a minimum term of detention of 28 days. Similarly, offenders who do not undertake or successfully complete the program, will be sentenced to a minimum period of 28 days. It must be remembered that a 15 or 16-year-old facing the court for a second offence is likely to have already had numerous chances to mend his or her ways. They may have offended a number of times before formal charges were laid.

I now turn to the general amendments made by the Sentencing Bill. Although the mandatory minimum sentencing provisions receive all the attention, my government is committed to monitoring the effectiveness of the general sentencing system in the Territory. The Sentencing Act commenced operation on the 1 July 1996 as part of a package of law reforms designed to provide for consistency and certainty in sentencing. Since that date, certain anomalies and inconsistencies have emerged which require the introduction of amendments to meet the difficulties raised and improve the effectiveness of the present act.

Clauses 5 and 10 of the bill deal with breaches of bonds and breaches of suspended sentences respectively. Under the present legislation, any application for a breach of bond or suspended sentence must be made by a prescribed person to the court which made the order. As a consequence, a court has no power to deal with a breach of its own motion, nor is it able to deal with a breach if it was not the court which made the original order. This matter was brought to my attention by the magistrates themselves and has caused significant inconvenience to prosecutors who must prepare papers to get an offender to court, even if the offender is already before the court.

The amendments provide that a court may of its own motion deal with an offender for a breach of bond or suspended sentence. The amendments will also permit the Court of Summary Jurisdiction to commit an offender who has breached a bond or suspended sentence of the Supreme Court back to the Supreme Court.

Community service orders have proved to be one of the most successful and useful sentencing options available to the courts. However, the current legislation is anomalous in relation to applications for community service orders in respect of offenders for whom a warrant of commitment has been issued or executed. Where a warrant of commitment is issued and executed, and the Director of Correctional Services later revokes the community service order, an offender can be re-arrested under the authority of the original warrant of commitment. The act, however, is silent about the situation where a warrant of commitment is issued, but before it is executed, the offender signs up for a community service order and the director later revokes the community service order.

At present, the only immediate option for enforcement is for a warrant of distress to be issued. Clause 6 now provides that the original warrant of commitment which was issued, may now be executed. This will ensure that orders against fine defaulters who convert their fine to a community service order, can still be enforced if the offender fails to comply with the terms of the community service.

Another matter that is fixed by these bills is that although there is an implied power to order certain reports before sentencing an offender, this power is not expressly provided. The Chief Justice requested the government to consider giving the court an express power. Under the Sentencing Act the court shall not make a community service order unless it is satisfied, after considering a report about the offender and his or her circumstances that the offender is a suitable person to participate in an approved program.

Similarly a court shall not make a home detention order unless it receives a report stating that suitable arrangements have been made for the offender to reside at certain premises, and the order is not likely to inconvenience or put at risk other persons living in those premises.

Clauses 7 and 11 respectively of the Sentencing Bill give the court power to order the director to prepare and provide to the court a report about the offender and his or her circumstances prior to the court ordering a community service order or a home detention order. The Supreme Court also has the power to sentence an offender convicted of a violent offence to an indefinite term of imprisonment if the court is satisfied that the offender is a serious danger to the community. In order to do this the court must consider many factors including any medical, psychiatric, prison or other relevant reports about the offender. Clause 14 of the bill allows the court to order any report that it thinks relevant to be prepared and provided to the court.

I now turn to a recent anomaly which came to light in Jabiru where a magistrate found that an offender had breached a condition of a home detention order, but that the matter did not come to the court until after the order had expired. As a consequence of the wording of the Sentencing Act, it was not possible to deal with the breach because the order had already expired. The effect of this difficulty is that there is a period toward the end of the order when it is impossible for Correctional Services staff to enforce the terms of the order. Clause 12 corrects this situation by giving the court the power to deal with the breach and, if necessary, direct that the order continue in force, notwithstanding that it had expired. In addition, it enables the court to deal with an offender who breaches a home detention order by committing an offence interstate.

Another amendment relates to the commencement of suspended sentences of imprisonment. Currently, the Sentencing Act provides for the operational period of a suspended sentence to commence on the day the order is made. While this is adequate for sentences which are fully suspended, it causes difficulty for sentences which are partly suspended, as the operational period commences while the offender is in prison, rather than at the time he or she is released upon suspension of the sentence. Clause 8 enables the court to specify the date on which the operational period of a partly-suspended sentence commences. The Sentencing Act currently enables a court to vary the conditions of a sentence which has been wholly suspended. Clause 9 provides that a court may also vary the conditions of a sentence which has been partly suspended.

The 1996 Sentencing Act did not include the general power to make forfeiture orders formerly found under the Criminal Code. Clause 20 provides that a person liable for imprisonment or a fine could be ordered to forfeit to the Crown any property owned by the offender and used by him or her to commit the offence.

This government has a strong track record when it comes to victims of crime. We believe victims’ rights have been ignored for too long. There are more than enough people shouting about the rights of criminals. The Territory government will stand up for the victims, for the rights of ordinary Territorians who have had to suffer at the hands of offenders.

Since 1 March 1997, the court, when sentencing an offender, has been able to take into account the effect of the crime on the victim. The process required the prosecution to tender a victim impact statement detailing the effects that the crime has had on the victim. However, there is no provision in the Sentencing Act for victim impact statements, or victim reports, to be presented to the court if the victim is unable to comprehend or give consent as a result of incapacity. This situation was highlighted after a recent assault case in which the accused kicked the victim in the head and, as a consequence, the victim suffered permanent brain damage. The victim was unable to give instructions for the preparation of a victim impact statement, and unable to be informed of the contents of the report and consent to it being presented to the court. Clause 21 allows victim impact statements, or victim reports, to be prepared by those who have a sufficiently close relationship with the victim, and for those to be presented by the prosecution in circumstances where the victim is unable to comprehend or give consent.

The bill also clarifies the court’s power to deal with an offender who has breached an order imposed under the Criminal Law (Conditional Release of Offenders) Act, but who is not brought before the court until after the order has expired. Clause 23 gives the court such a power.

These proposed amendments to the Sentencing Act and the Juvenile Justice Act are the result of the continuing review of legislation that is a hallmark of this government. Given that significant amendments were made to these 2 acts over 2 years ago, it is timely that further amendments be considered by the Assembly to ensure that the intention of the parliament, and therefore the community, is reflected in the legislation. Additionally, a number of technical amendments to overcome anomalies and inconsistencies in the legislation are timely.

This government is committed to enacting legislation that reflects the will of Territorians as demonstrated in the last Territory election: that the punishment must fit the crime. The proposed amendments, while providing the courts with some discretion, ensure that the message from the Territory community continues to be heard by those administering the criminal justice system. I commend the bill to honourable members.

Debate adjourned.

 

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