Legislative Council Tuesday 08 December, 2020

Ms FORREST question to LEADER of the GOVERNMENT in the LEGISLATIVE COUNCIL, Mrs HISCUTT

With regard to the referral to the Sentencing Advisory Council regarding consideration of non-fatal strangulation, in Estimates Committee hearings on November 24 in the Legislative Council Committee B hearings you stated:

I have requested that council undertake research as a matter of priority; …
I am mindful that we don't want to have a perverse outcome by having a standalone offence, which is, on the face of it, very attractive. … That is why I have handed it to the Sentencing Advisory Council to look at a range of different issues.

They know I am very keen, because of the public interest in this matter, to undertake the research and make observations in relation to criminal law approaches in other jurisdictions, so that I have all that information. I am hoping to receive that in the new year.

So much gets proposed to me to do some law reform on that sometimes we are able to do that internally. But on this occasion the expertise of the Sentencing Advisory Council is warranted.

You also stated with regard your request to the SAC:
…because of the public interest in this matter, to undertake the research and make observations in relation to criminal law approaches in other jurisdictions, so that I have all that information.

Further noting the SAC’s role as an advisory body on matters concerning sentencing in Tasmania, providing high level advice to the Attorney-General on sentencing in Tasmania to:

• assist the Attorney-General make decisions relating to sentencing matters
• improve the quality and availability of information on sentencing in Tasmania, and
• educate the public about sentencing matters.

1. Please provide the Terms of Reference sent to the SAC regarding this matter;

2. Is the role of SAC to consider and compare sentencing options for non-fatal strangulation;

3. Is the role of SAC to consider and compare criminal law approached to non-fatal strangulation;

4. Under the SAC’s area of expertise and responsibilities:
a. How is this body appropriate to fully consider all options regarding non-fatal strangulation as a stand-alone offence;
i. If so, where is this role described; and

5. If the SAC is not able to fully consider non-fatal strangulation as a stand-alone offence, will the TLRI also be requested to consider law reform in this area as a matter of urgency and priority?

ANSWER:
The terms of reference provided to the Sentencing Advisory Council (the Council) are as follows:

1. In Tasmania, in how many cases and in what circumstances has non-fatal strangulation, choking or suffocation been considered as a sentencing factor and in relation to which offences? What were the sentencing outcomes in those cases?

2. In those jurisdictions that have introduced an offence of non-fatal strangulation (or cognate offence), what have been the sentencing outcomes and, where information is available, what factors have the courts considered in sentencing the offender?

3. In those jurisdictions that have introduced an offence of non-fatal strangulation (or cognate offence) for what other offences was the offender also sentenced at the same court event?

4. Any other observations considered relevant to (1) – (3).

The Council has been invited to make observations on the terms of reference, which I can confirm include sentencing outcomes with regard to non-fatal strangulation, choking or suffocation in both Tasmania and in other jurisdictions, and the sentencing outcomes of jurisdictions that have introduced standalone non-fatal strangulation, choking or suffocation offences (or a cognate offence) in criminal law, as well as any other matters considered relevant.

The Sentencing Advisory Council is an advisory body on matters concerning sentencing in Tasmania. The Council provides the Attorney-General with high-level independent advice on sentencing in Tasmania to:

o assist the Attorney-General make decisions relating to sentencing matters;
o improve the quality and availability of information on sentencing in Tasmania; and
o educate the public about sentencing matters.

Further information about the Council and its role can be found at:
https://www.sentencingcouncil.tas.gov.au/about

The Council is regularly asked to undertake research and analysis on specific sentencing matters, and to provide advice, reports and recommendations accordingly. It is appropriately qualified to consider this important matter.

On family and sexual violence, the Council’s previous reports have included:
o sentencing for serious sex offences against children;
o mandatory treatment for sex offenders;
o mandatory sentencing for serious sex offences against children;
o sentencing of adult family violence offenders; and
o sex offence sentencing.

The Council is comprised of members chosen to represent a unique and balanced perspective on the sentencing process. This includes a chairperson, three community members, and nominees from the legal profession, the Commissioner of Police (or nominated delegate), the Director of Public Prosecutions (or nominated delegate), the University of Tasmania and the Legal Aid Commission.

The current Council Chair is Emeritus Professor Arie Freiberg AO, who is a highly distinguished legal practitioner and academic in criminology and sentencing reform, and who has been the Chair of the Victorian Sentencing Advisory Council since its inception in July 2004.

Other members of the Council include:

o Ms Rosalie Martin - Speech pathologist, Criminologist and Facilitator, and founder of Connect42;
o Mr Peter Dixon - retired Magistrate admitted as a practitioner in 1969, appointed magistrate in 1986 (retired 2012), who has an extensive professional career in reform of criminal law and procedure;
o Ms Kate Cuthbertson - a leading barrister in Tasmania who in her earlier career served at the Legal Aid Commission of Tasmania for over 10 years, conducted research for the TLRI, and whose professional appointments currently include being a member of the Anti-Discrimination Tribunal, the Mental Health Tribunal, and the Parole Board;
o Mr Scott Tilyard - Deputy Commissioner of Tasmania Police and Deputy Secretary of the Department of Police and Emergency Management;
o Adjunct Associate Professor, Ms Terese Henning – who, alongside her distinguished academic career, is the immediate past Director of the TLRI;
o Ms Jill Maxwell - CEO of the Sexual Assault Support Service since 2015, and whose previous career includes extensive periods with Tasmania Police and in the Family Violence Counselling and Support Service;
o Ms Kim Baumeler - who is a leading Tasmanian legal practitioner with extensive practical experience in criminal law;
o Ms Linda Mason SC - the current Deputy Director of Public Prosecutions, who holds in excess of 20 years criminal law practice experience;
o Ms Rochelle Mainwaring - Senior In-House Counsel and Deputy Criminal Practice Manager at Legal Aid; and
o Dr Isabelle Bartkowiak-Théron - who specialises in socio-legal studies and currently sits as a lead researcher in the Tasmanian Institute of Law Enforcement Studies, University of Tasmania; among other international and Australian professional and research governance boards.

The Council’s research, particularly around the sentencing outcomes in other jurisdictions and their alignment to the underlying objective of a standalone offence, together with a picture of what is occurring in Tasmanian courts regarding these offences, will provide valuable information to inform consideration of any new offence in Tasmania.

As you can see from the terms of reference, I have not asked the Council to specifically recommend whether a possible new standalone criminal law offence should be introduced in Tasmania on this matter. I would ordinarily seek advice from my Department in relation to these types of matters and in relation to this referral, I can confirm this analysis is being conducted by my Department.

Whether there are any questions outstanding in relation to this matter that require further research and advice from the TLRI or other bodies is something that will be decided after the Council’s report has been received and considered. I fully appreciate the high importance of this matter and therefore, I have and will continue to treat it with the utmost priority. I maintain that any law reform must be thoroughly considered to prevent any perverse outcomes or unintended legal consequences and this is precisely and appropriately my focus for victim survivors.