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Mandatory Sentencing

Extract from Hansard [ASSEMBLY – Tuesday, 16 June 2009].

MS A.S. CARLES (Fremantle) [5.43 pm]: I say at the outset that the Greens (WA) do support the very important work being done by our police in very difficult circumstances. We have been witnessing a quite bizarre conscience-clearing exercise this evening from my Labor colleagues in this place. They have been eloquently explaining the human rights abuses that this legislation will create, yet ultimately saying that they will not oppose it. I do not understand why Labor members say they will not stand up for the notions of justice, Indigenous rights and human rights when they vote on this bill. There seems to be something missing in this puzzle: it is called integrity.

The Greens are fundamentally opposed to mandatory sentencing. I will be voting against this legislation. We have only one voice in this house of Parliament and we have to vote with integrity and along our party lines. That is how I see it. This bill will result in our Parliament encroaching into the territory of the judiciary. It will be an infringement on the separation of powers between the executive, the Parliament and the judiciary, which is enshrined in our Constitution – our founding document. The separation of powers forms the foundation of our democracy. When Parliaments interfere with the functions of the judiciary – we have seen examples of this with our less stable neighbours – democracy is destabilised. It is therefore absolutely essential to our democratic process that we uphold judicial discretion in sentencing.

We know that this bill is in part a reaction to the very unfortunate case of Constable Matthew Butcher, a recent case which sparked outrage. The problem with this case was that the jury found the accused not guilty. The issue of sentencing did not arise because there was no guilty verdict and therefore no conviction. To proffer this bill as a solution to this kind of scenario is simply misleading the public; it is tricking them. The truth is that if this bill were law and this exact Constable Butcher scenario occurred today, the outcome would be exactly the same. That needs to be said to the public of Western Australia. I repeat: the outcome would be exactly the same.

The bill applies to assaults that cause grievous bodily harm to police officers. Grievous bodily harm means bodily injury of such a nature as to endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to health. It is a very serious injury. The WA Criminal Lawyers’ Association has advised us that such assaults inevitably attract a sentence of immediate imprisonment. Therefore in respect of these injuries, this bill is unnecessary. Bodily harm means any bodily injury that interferes with health or comfort. The WA Criminal Lawyers’ Association has confirmed that this is a very broad category and at its lowest level could well include minor scratches, bruises or pain. In respect of these injuries, this bill is disproportionate and inappropriate.

I note the publication of police guidelines to the effect that minor assaults occasioning bodily harm should not be prosecuted. However, if the police guidelines are not followed or if they are cancelled, this proposed act will apply and the court will have to impose the mandatory prison sentence. If we as parliamentarians do not consider that the bill should apply to that sort of case, we should not be passing it.

There are major problems with mandatory sentencing. My Labor colleagues have espoused them beautifully. The most pressing aspect of the bill is that it does not solve the problem; there is a large volume of international research that tells us this. As stated by the Chief Justice of Western Australia, Wayne Martin, in The West Australian article of 4 June 2009, which has been tabled, there is a false assumption that increased sentences reduce crime. I quote directly.

“Historical figures do not show a correlation between increasing punishment and reducing crime. If anything, they suggest the opposite.”

I will not go on and quote further. I was intending to but it has already been done. The figures are very clear. One matter I will comment on, though, is the crime rates in this state, which are actually reducing. In the past 10 years homicide has come down by 40 per cent, armed robbery by 58 per cent, burglary by 45 per cent and motor vehicle theft by 61 per cent.

Mr C.C. Porter: Which ones went up?

Ms A.S. CARLES: There are some that went up, but most of them went down, and they are the ones I have quoted.

This raises the question of why there is a perception that we in the community need to get tougher on crime. The answer is simple. It is called a media beat-up. The photographs that are plastered on the front page of The West Australian and the videos that are replayed over and over again on people’s television screens are fuelling this sense of false impression in the community. That does not mean that we in this chamber should be legislating on this basis. We should not be contributing to the misinformation. We should be acting on facts and not on hysteria. We should be talking about the real statistics, which indicate that when offenders are convicted of assaulting police, they are sent to prison by our judges. Our strict criminal laws prescribe this and our judges act in accordance with these laws. This bill seeks to exploit for political advantage the community’s fears about crime. If we pass this bill in this chamber today, we will all be contributing to this deception. We will be demonstrating that we have no confidence in our judiciary. This I find alarming. I say to the Attorney General that his bill places him at odds with our legal profession and with our judiciary. The members of our judiciary are held in great esteem. I would say that the members of our judiciary do the hardest intellectual work in our society. Many members have read their judgements, and I am sure they are aware of the difficult exercise that takes place in balancing competing factors and laws to reach a judgement. This bill dismisses this difficult judicial work and replaces it with a blunt sledgehammer. Prominent members of the legal profession and peak representative bodies from the legal profession do not support mandatory sentencing. I refer to the Law Society of Western Australia, the Criminal Lawyers Association of Western Australia, the Australian Lawyers Alliance, Chief Justice Wayne Martin, the Director of Public Prosecutions, the Youth Legal Service Inc Western Australia, John Quigley, MLA and the Aboriginal Legal Service of Western Australia. Members might find that funny, but these are the esteemed people in the legal profession.

I urge the Attorney General to withdraw his bill to allow a cooling off period to closely consider what the legal profession is saying; that is, consider the long-term impacts of this legislation. The impacts will be grave. This bill will adversely impact on our court system. There will be no incentive for guilty pleas. The already stretched resources of the courts, prosecutors, legal aid services, police and medical witnesses will be pushed to the limit. Our prisons cannot cope with more prisoners. Our prisons have long been overcrowded, putting both staff and offenders at risk.

Guess who will bear the brunt of this sledgehammer? I think members know. It will be our Indigenous population. Today we have been considering the shocking case of Mr Ward, the plight of Aboriginal people and our criminal justice system, yet here we are set to pass this bill, which all members admit will adversely impact on Aboriginal people. I find that absolutely horrifying. In our state already we have by far the greatest rate of Indigenous imprisonment. Aboriginal people, including children, are way over-represented in our prisons. How can we tolerate exacerbating this shocking overrepresentation tonight by passing this draconian measure?

Aboriginal people will not be the only people adversely affected by this legislation. Other innocent or less culpable members of our society will also be inadvertently caught by this legislation. As an example I refer to the case of 22-year-old Kylie Higgs, which was reported in The West Australian on 2 May this year. This young woman got into an altercation with police at a nightclub in Northbridge at 1.30 in the morning. She had been drinking. I will briefly go through the facts because how the judge resolved the facts is important. Her boyfriend was getting into a fight with the police and she intervened. The court was told that she was pushed by an officer and lost her footing. She fell to the ground and rose up and hit the officer in the eye. She pleaded guilty – there was no doubt about that. She admitted that she had been drinking and that was wrong. She was a BHP geologist, earning $92000 a year. She was charged and fined $3000. The prosecuting sergeant did not oppose a spent conviction. To me, that is a classic case of our system working. She made a mistake that night. We are not perfect. She admitted her error, paid the price and now moves on with her life. She kept her job and was not thrown into prison. However, under this legislation she goes to prison.

Ms A.J.G. MacTiernan: What was she actually charged with?

Ms A.S. CARLES: She was charged with assaulting a public officer. She had hit the officer in the eye.

Ms A.J.G. MacTiernan: I know the case well. Would the Attorney clarify whether that is a charge that would come under this legislation?

Mr C.C. Porter: What is her name?

Ms A.S. CARLES: Her name is Kylie Higgs. The headline of the article is “Cop basher escapes with $3000 fine”.

Mr C.C. Porter: What date was that?

Ms A.S. CARLES: It was reported in The West Australian on 2 May 2009. I will move on. It is another example of what could happen with the passing of this legislation. It could be the daughter of any member who goes out and gets drunk one night and does something stupid. I hope that in those circumstances the offender would be fined and would not go to prison.

This bill will see innocent people inevitably sentenced to serve time in our overstretched prisons. Aboriginal incarceration will skyrocket beyond what it is already. The bill is not workable and if it becomes law, it will take years for it to be brought before this chamber to be repealed. I urge members to stop this legislation in its tracks right now. Let us do our job as parliamentarians and let the judiciary get on with their important work as judges.

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