Hansard debates

Mr PAKULA (Attorney-General) — I move:

That this bill be now read a second time.

Speech as follows incorporated into Hansard under standing orders:

The government has been concerned about sentencing practices since the cumulative impact of the previous government's reforms has become clear. We supported introduction of the community correction order in 2012 and the abolition of suspended sentences and parole reforms when in opposition. Prior to the 2014 election, the previous government passed a suite of reforms which expanded the use of community correction orders.

The government agrees that community correction orders are a valuable sentencing tool, but believes that the former government's broad regime went too far.

In particular, the government is concerned about the use of community correction orders in relation to serious offending, where a term of imprisonment would be a more appropriate sentence given the gravity of the offence and culpability of the offender.

The bill will restrict the availability of community correction orders and other non-custodial orders for the most serious offences, and ensure that the availability of community correction orders is more consistent with community expectations. The bill will also make minor and technical amendments to the Sentencing Act 1991, Corrections Act 1986 and the Bail Act 1977.

Sentencing reform

The government considers that it is appropriate that a custodial sentence should be imposed for the most serious criminal offences on the Victorian statute book. For other serious offences, the courts may only impose a non-custodial order in very limited circumstances. This sends a strong message to perpetrators that the government takes criminal offending seriously and such behaviour will be met with time in jail.

Category 1 offences

The bill will introduce two new classes of serious offences into the Sentencing Act 1991 — 'category 1 offences' and 'category 2 offences'.

'Category 1 offences' are objectively the most serious criminal offences in Victoria. They include murder, causing serious injury intentionally or recklessly in circumstances of gross violence, rape, the most serious child sexual offences (including incest), and trafficking or cultivating a drug of dependence (large commercial quantity).

The bill will provide that when sentencing a person for a 'category 1 offence' a court must impose a custodial order. A term of imprisonment combined with a community correction order (a 'combined order') is prohibited. There will be no exceptions to the requirement to impose a custodial order.

Category 2 offences

'Category 2 offences' are other serious criminal offences and include manslaughter, child homicide, causing serious injury intentionally, kidnapping, arson causing death, trafficking or cultivating a drug of dependence (commercial quantity), and providing documents or information facilitating terrorist acts.

The bill will provide that a court must impose a custodial order (other than a combined order) when sentencing a person for a 'category 2 offence', unless the court finds that one of the special reasons provided for in the bill exists. This will mean that if the court finds that a special reason exists, it will retain full sentencing discretion and may impose a community correction order, combined order or other lesser non-custodial order.

The special reasons provided for in the bill will mirror existing section 10A of the Sentencing Act 1991, which provides the special reasons that a court must find in order to depart from the statutory minimum sentence for particular offences, such as gross violence offences. The special reasons are an important legislative safeguard, which will exempt a court in limited circumstances from imposing a custodial sentence for a 'category 2 offence' where justified by the particular facts of the case or circumstances of the offender.

Special reasons include if the offender has assisted or undertaken to assist in the investigation or prosecution of an offence. Special reasons may also exist where the offender can prove impaired mental functioning or where the offender is between 18 and 21 years at the time of the offence, and can prove a particular psychosocial immaturity, or where there are substantial and compelling reasons that justify not imposing a custodial order.

Community correction orders combined with imprisonment

The previous government amended the Sentencing Act 1991 in 2014 to expand the use of community correction orders combined with a term of imprisonment. Prior to these changes, only a sentence of imprisonment of three months or less could be combined with a community correction order. Combined orders were used for less serious offences compared to cases that received a longer sentence of imprisonment with parole. The 2014 amendments raised the three-month limit to two years and blurred the sentencing options further by expressly stating that a community correction order could be imposed where a suspended sentence would have previously been considered suitable.

The government considers that the 2014 reforms have led to an inappropriate use of community correction orders in serious cases. Since 2014, the number of offenders on a combined order has steadily increased. In 2015 there were 2028 combined orders imposed by the Magistrates Court, compared with 1013 imposed in 2014. Similarly, there were 356 combined orders imposed by the higher courts in 2015, compared with 96 combined orders imposed in 2014.

The bill will reduce the availability of combined orders by reducing the length of a sentence of imprisonment that may be combined with a community correction order to one year or less and provide that a court must not fix a non-parole period as part of the sentence. This will ensure that where a combined order is imposed, an offender cannot be released on parole before commencing the community correction order component of their sentence.

The bill also preserves the role of the parole system to oversee the discretionary release of prisoners, to monitor reintegration into the community and apply strict enforcement powers where quick return to jail is required.

Limiting community correction orders imposed by the higher courts to five years

Currently, the higher courts may impose a community correction order up to the length of the maximum term of imprisonment for the relevant offence, which could be, for example, up to 25 years in the case of aggravated burglary.

The bill will provide that the maximum length of a community correction order that may be made by the higher courts for one or more offences is five years. This is consistent with the maximum length of a community correction order that may be imposed by the Magistrates Court.

Five years is an adequate upper limit for a community correction order. Lengthy community correction orders should not be used as a substitute for imprisonment for serious offending.

Statement about sentencing discount on guilty pleas

Section 6AAA of the Sentencing Act 1991 requires a court to state the sentence and non-parole period (if any) that it would have imposed but for the offender's plea of guilty. This provision is designed to encourage early guilty pleas and increase transparency in the sentencing process by identifying the sentencing discount afforded to offenders who plead guilty. However, as noted by the Sentencing Advisory Council in a recent report, the circumstances when a court must state the sentencing discount requires some clarification.

The bill therefore clarifies that a section 6AAA statement must be made in relation to orders to imprison made under section 7(1)(a) of the Sentencing Act 1991, combined orders and community correction orders of two years or more duration.

Amendments to the historical homosexual conviction expungement scheme

The Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014 commenced on 1 September 2015. Two issues have arisen since the historical homosexual conviction expungement scheme commenced and require legislative amendment.

Firstly, the bill will clarify that part 8 of the Sentencing Act 1991, which establishes the historical homosexual conviction expungement scheme, applies to the Children's Court and allows a Children's Court conviction to be expunged.

Secondly, the bill will clarify the definition of 'data controller' to more accurately describe the officer responsible for official records at the courts and VCAT, for the purposes of the historical homosexual conviction expungement scheme.

Minor and technical amendments to reflect current law and practice

The bill will make a range of minor and technical amendments. The bill will repeal provisions in the Bail Act 1977 that require written notice of a trial date to be provided to the accused and any sureties, as these requirements are redundant and do not reflect the current practice of service of a trial indictment. Other minor amendments include updating references to repealed sections of the Corrections Act 1986 and the Sentencing Act 1991.

Conclusion

The government has examined sentencing practices for the most serious offences under Victorian law following the previous government's reforms in 2014. The sentencing reforms in this bill take account of the harm caused to victims and the culpability of persons that commit these terrible crimes. The government has targeted these reforms at our most serious offences. They reflect the community expectation that for some of these cases imprisonment is the only option.

The previous government's campaign to broaden the use of community correction orders went too far. The Andrews government will ensure that our sentencing laws reflect community views and get the balance right.

I commend the bill to the house.

Debate adjourned on motion of Mr PESUTTO (Hawthorn).

Debate adjourned until Thursday, 27 October.