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Arson Legislation Amendment Bill 2009

Extract from Hansard – Tuesday 10th November 2009

Resumed from 21 October.
MS A.S. CARLES (Fremantle) [4.26 pm]: I resume my comments on this bill. I have spoken about the proposed amendments to the Bush Fires Act, which I support. I repeat that the Greens (WA) do recognise the seriousness of the crime of arson, and we want to ensure that the penalties for those who are found guilty of wilfully lighting fires are increased.
I turn now to some problematic amendments that are proposed to be made to the Criminal Code. I support the thrust of the legislation. However, there are some problems, particularly with the proposed penalties. Clause 10 of the bill proposes to insert into the Criminal Code a new section 444A. That proposed section places a duty on people who are in control of a fire, firstly, at the point of ignition, in proposed subsection (1); and, secondly, once the fire is under way, in proposed subsection (2). We are talking here about people who are lawfully lighting fires—CALM officers, local government staff, traditional owners and the like—and the consequences for them if things go wrong. We are proposing to amend the Criminal Code to provide that if a person in charge of a fire—essentially a public servant—fails to take reasonable care and loses control of the fire and causes damage to property, that person may be convicted and be given a penalty of life imprisonment.
Mr C.C. Porter: This will apply only if they unlawfully or wilfully light the fire.
Ms A.S. CARLES: No. That comes under the Bush Fires Act if they wilfully light a fire. Okay. I support the amendment that was foreshadowed by the member for Mindarie, on behalf of the opposition, during the second reading debate on this bill at the Bunbury Regional Parliament. That amendment is to introduce the notion of “recklessness”. I support that amendment because I, too, am very concerned that we may inadvertently capture people who have failed in their duty to take reasonable care when in control of a fire. I will not repeat the arguments put by the member for Mindarie. As I have said, I support what he has said.
The Greens also have a concern about, and will not be supporting, clause 11 of the bill. Clause 11 proposes to insert in section 444 of the Criminal Code a blanket penalty of life imprisonment. I foreshadow that I will be
moving an amendment to remove that penalty of life imprisonment. The Greens have consulted with the Law
Society of Western Australia about this penalty. The Law Society opposes the proposed increase in penalty to life imprisonment. It has advised us that such a penalty will mean that the offence will need to be dealt with by the Supreme Court, not the District Court, and that will add additional costs and complexities to the litigation. I support increasing the penalty in section 444 of the Criminal Code from 14 years to 20 years’ imprisonment.
This would be in line with the gist of the other amendments in the bill, it would be more in line with the scheme of the Criminal Code, and it would also be consistent with the increase in penalty from 14 years to 20 years in the Bush Fires Act, to which amendments are made through this bill.
This amendment would mean that a public servant doing his or her job could be charged, found guilty and
sentenced to life imprisonment, yet someone who wilfully lights a fire could be sentenced to a maximum of
20 years. I see the Leader of the House shaking his head. That is what the amendment in the legislation says.
Mr R.F. Johnson: I don’t think you’re reading it properly.
Ms A.S. CARLES: I have read it properly; I have read it many times. The amendment to section 444 seeks to bring in a blanket life imprisonment penalty and remove the current penalty. It states — imprisonment for 14 years or, if the offence is committed in circumstances of racial aggravation, to
imprisonment for 20 years; …
Mr J.R. Quigley: What the member is concerned about is that the penalty is not by death; you would rather hanging for the offence. We all know that Lord Haw-Haw would rather hang.
Ms A.S. CARLES: I am saying to the Attorney General that I support increasing the penalty from 14 years to 20 years. I also support adding a $500 000 pecuniary fine to that. Life imprisonment is not a proportionate response in the scheme of our Criminal Code. Currently, we have life imprisonment only for serious offences against persons. We have life imprisonment for murder, armed robbery and drug trafficking. These are the most serious crimes against people that can result in life imprisonment. We must remember that we are talking about property here. The maximum penalty on conviction for aggravated sexual penetration, serious drug offences, manslaughter or grievous bodily harm is 20 years. It seems to me that a 20-year sentence, not life, would be a more appropriate penalty for this crime against property. I leave it to the Attorney General to ponder this suggestion. My amendment would remove only the blanket life imprisonment penalty. Can members imagine how it would feel to be a public servant knowing that he or she could be imprisoned for life if he or she were responsible for an out-of-control fire?
Mr C.C. Porter: Two offences are being created, one of which is with respect to a breach of a duty, which is a fire that potentially gets out of control. Life does not attach to that scenario. Life would attach only to a scenario in which the fire was wilfully and unlawfully lit. You’re confusing the penalty and the offences.
Ms A.S. CARLES: No. What is the penalty then?
Mr C.C. Porter: You just said to me that a civil servant whose fire unintentionally got out of control could face life. What I am saying to you is that that is incorrect.
Ms A.S. CARLES: So what is the penalty for a proposed section 444A offence?
Mr C.C. Porter: Life imprisonment.
Ms A.S. CARLES: That is what I said—life imprisonment.
Mr C.C. Porter: No. The penalty for a proposed section 444 offence is life.
Ms A.S. CARLES: Yes, that is my point.
Mr C.C. Porter: No. There is proposed section 444A, proposed section 444 and proposed section 445A. Proposed section 445A attaches to proposed section 444A and establishes a penalty of 15 years’ imprisonment.
Ms A.S. CARLES: That is for damage to vegetation, with 15 years’ imprisonment.
Mr C.C. Porter: No; that is for a person who unlawfully omits or refuses to do any act that it is his duty to do. A person who breaches his duty would not face life; he would face 15 years’ imprisonment. A person who wilfully and unlawfully lights a fire that damages property would face life. Your statement that a civil servant who unintentionally but negligently damages property would face imprisonment is just not right.
Ms A.S. CARLES: So the Attorney General is saying that it is just 15 years for a public servant?
Mr C.C. Porter: In the scenario that you have raised, if it were not wilful and unlawful damage of property, it would not be life; it would be 15 years.
Ms A.S. CARLES: Can a public servant be charged with life imprisonment under proposed section 444A?
Mr C.C. Porter: Yes, if he has wilfully and unlawfully lit a fire. But what you have said—that is, that a public servant who unintentionally or who breaches a duty, or whatever words you want to use, is going to face life—is not correct; it is 15 years. I understand your point; you don’t like life attaching to wilful and unlawful damage.
Ms A.S. CARLES: Yes, to property offences; that is all. That is my point. I am very concerned that public servants who are responsible for back-burning will quit their jobs over this. I will conclude by foreshadowing an amendment to remove the life imprisonment penalty. My amendment is to delete lines 7 to 12 in clause 11 on page 6 of the bill.

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