Legislative Council Wednesday 21 June 2017

Ms  FORREST (Murchison ) - I will refer to a range of information here.  I think it is important to explore this very serious topic quite broadly.  As the member for Rumney pointed out, this is a serious issue and a really important matter.  I do not think anyone in our community - and certainly not in our Parliament - would not do whatever they can to assist keeping children safe.

As with most challenges, there is always more than one solution but children are the most important asset for our future.  They are vulnerable in many senses.  They are less well equipped or able to deter unwelcome advances of adults or even other young people. 

We see that even down to the level of bullying and that sort of thing.  This is a very serious issue and it is very important we look closely at it.  The House will be well aware of my continued opposition to mandatory sentencing, for all the reasons I have given before.  However, I will revisit some of those because it is important in the context of this debate to look at the reasons why mandatory sentencing is not the right way to proceed. 

I must say that this particular bill has challenged me much more than the other mandatory sentencing bills we have had before us because it is about children, who are less able to stand up for themselves, less able to respond to threats and who warrant, need and deserve society's protection. 

The protection our system has put in place is a judiciary that applies the laws we make.  Our job in this place is to make laws that will protect children.  The laws that protect children here have harsh penalties - 21 years' maximum penalty.  That is right and appropriate.  Some would say it is not enough.  If you are a victim, I am sure you feel that is probably the case.  Others say the perpetrators never get 21 years, and possibly not many do because it is a maximum penalty.  

We have put in place a mechanism to enable perpetrators of these most horrendous and heinous crimes to be punished.  We have a judiciary, through the separation of powers, which has served us well in all areas to make determinations about the level of penalty that should be applied in particular circumstances. 

Yes, we have some mandatory sentencing provisions in terms of fines, where people could lose their boats and things like that.  That is right.  Mandatory sentencing to put people in prison is a different kettle of fish, in my view.  It can result in unjust outcomes.  I am not saying that as an expert in this field.  I am taking the advice of experts in the field who are much more knowledgeable than, I think, all of us in this Chamber in regard to this matter.  I will come back to some of those points in a little while.  

I know the current Government went to the last election committing to - I hate the word 'mandate', it is just so overused - to introduce mandatory sentencing in a number of areas.  I recently also faced an election and there was every opportunity for people to change to another candidate who supported the Liberal Party's position on this.  As with forestry, for example, which we will get to later in the day or tomorrow or whenever, people knew very well about my views on mandatory sentencing, to the point where my opponent put out media releases saying that I supported criminals over police officers.  That sort of approach was taken.  Thank goodness for social media, it can be useful at times even though, as the member for Rumney pointed out, there is some inappropriate use perhaps by the Government at the moment around what we are actually doing in this place.  I explained why I did not support mandatory sentencing on serious assaults against police officers.  When you have the opportunity to talk to people and explain to them the reasons for the separation of powers and the unjust outcomes that occur, most people understand.  They do not have a full understanding because they do not have all the information we do, but clearly they knew where I stood on this.  

A government is elected with a mandate, if you want to call it a 'mandate', to govern.  When you have a bicameral system, as we have here, the requirement is then to convince the whole parliament that a position is the right one.  I will move on from that. 

There is no doubt in my mind - and I know, from caring for women who have been victims of assault and being aware of family members who have been victims of sexual assault - that the impact is lifelong; there is no question about that.  Whether you put someone in prison under a mandatory sentence or you do not, the impact is lifelong.  It does not go away.  It sometimes resurfaces much later in life and this is where we sometimes see people coming forward with a claim of sexual assault.  Because of the nature of the assault, people often bury it.  They try to get on with their lives.  But inevitably it is there, it never goes away.  

When I was a sex educator, I used to talk about termination of pregnancy to the year 11 and 12 students in a Catholic school.  I always said to them that having a termination of pregnancy does not take away a rape or the trauma and pain of a rape - it does not.  It may not be the answer.  Some people think if you have a termination, it will make it go away.  No, it does not.  The rape occurred, the rape was horrible and the rape will always be with that person.  They will never forget it.  They will never get over it. 

Knowing that someone may or may not go to prison does not make that assault go away.  It does not remove the impact on that victim.  Yes, they may think, 'Well, finally that person has been locked up,' and we know that they will possibly go to prison for four years if there are aggravating circumstances. 

In all circumstances, there is a lifelong impact on that person regardless.  We overlook that sometimes.  The member for Western Tiers challenged us to think about the victim.  That is what I am thinking about here; I am thinking about the victim - the victim whose life is impacted forever.  This reality is not changed whether the perpetrator spends time in prison or not.  Even if they were sentenced to a mandatory prison term, for the victim that may not be enough in their mind anyway because, ultimately, they know the perpetrator will be back out. 

We need to do so much more in our society to prevent these assaults.  It is the only way we are going to prevent the harm.  In my perfect world that would be the case, but, unfortunately we do not live in my perfect world - we live in a world where people do these things.  Most of the people - and we heard this in our briefing this morning - who commit these sort of crimes are not people who think rationally through, 'Might I get a mandatory sentence if I do this or not?'. 

Their crimes are driven by many other things and occur for varied reasons.  Most of them have other issues in their lives.  White collar crime is different.  A white collar criminal, for example, can think through whether it is worth the risk of stealing this money, or whatever it is, from their business.  As we were told, generally once is enough and they do not go back to it. 

We need to do much more to try to prevent these assaults.  It is through public education.  It is through prevention of reoffending where a perpetrator can have appropriate treatment and support to prevent their reoffending, bearing in mind that some of these perpetrators are victims themselves. 

I mentioned this in the briefing this morning when the Sexual Assault Support Service representatives were there:  sometimes children grow up in an environment of sexual abuse and that is their lived experience of love from their parents.  Personally, I cannot comprehend what that would be like but for some, it is their lived experience.  For them, showing love can mean forcing yourself on another person to have a sexual relationship.  So they find themselves caught up in this mandatory sentencing provision because they do not know any different.  It does not make it right.  Then maybe they can apply to exceptional circumstance there - perhaps they can, perhaps they cannot.  I go back to the member for Western Tiers, who encourages me to go back to the victim, but that does not help the victim.  

That does not help the victim.  If the court decides the perpetrator was a victim themselves and that may have contributed to their crime, that does not help the victim they have committed the crime against when a lenient sentence is imposed because of its exceptional circumstance and the newspaper reports serious sexual offence gets whatever. 

Mr Finch - It has always befuddled me how people abused as children, not only sexually, but for assault per se - dad giving the boy a hiding or something like that - grow up to be abusers.  You would think they would be averse to the same behaviour, but in some cases they adopt the attitude.

Ms FORREST - It is all they know.  I used to discuss this in childhood education classes when you were talking about parenting and parents were sitting around the playgroup - the kids are having a bit of a spat, one of the parents will go up and go whack, 'Do not hit'.  Hang on, do you not see a double message there? 

Mr Valentine - You do.  In the supermarket. 

Ms FORREST - That is right.  A kid hits another kid, the parent goes over and goes whack, 'Do not hit that kid'.  It is lived experience.  We need more education on how to break that cycle.  The only way to prevent it is to break the cycle. 

During the briefing we were also addressed by the Law Society of Tasmania.  I will get to the Director of Public Prosecutions's comments shortly.  There was a concern people would potentially fight harder to avoid a conviction, if they know it is a mandatory sentence after the commission of the crime.  I do not think many of them would think about it beforehand.  We will see more 'not guilty' pleas.  The DPP said his belief was that many people would then seek, if they thought they might get a mandatory sentence, the exceptional circumstance provision.  In many respects surely we should leave it to the court to decide on the most appropriate sentence. 

The Law Society raised concerns, which the DPP did not entirely agree with, about the transfer of discretion from the judiciary or the judges to the prosecutor in terms of what charges should be laid.  The DPP said that generally they do a lot of that anyway. 

I want to talk about the community view of judges.  The Australian Institute of Criminology'spublication Trends & Issues in Crime and Criminal Justice, No. 407, February 2011, includes a paper entitled 'Public judgement on sentencing: Final results from the Tasmanian Jury Sentencing Study' by Kate Warner, Julia Davis, Maggie Walter, Rebecca Bradfield and Rachel Vermey.  I encourage members to read this paper because it is quite informative.  I will not read it all but it talks about assessing what juries thought about the sentencing.  I want to go to the point raised, I think, by the member for Apsley about the judges not being perhaps all that well respected.  There were some key implications from this research.  I will start with the myth of the punitive public.  I just want to read a few bits on this and then I will get to the attitudes towards judges - 

The fact that 52 per cent of jurors chose a more lenient sentence than the judge and only 44 per cent were more severe than the judge shows that informed members of the public are not as punitive as many representative surveys have suggested.  This finding mirrors previous vignette studies that have also reported that when views of members of the public on a specific case are compared with those of judges the judges' sentences tend to be as severe or more severe than those of the public.  (Diamond and Stalans 1989; Lovegrove 2007)  Moreover when informed of the sentence at Stage 2 - 

Members need to read the whole report to understand the different stages of the study they did - 

… 90 per cent of jurors thought that the sentence was very or fairly appropriate and only around a third thought the judge should have imposed a more severe sentence. 

That includes sexual crimes, violence, drugs, property, culpable driving and other - 

Ms Rattray - Crimes against children? 

Ms FORREST - You are talking about sex here - no, I am talking about the public perception of judges that you were talking about.  They are saying there is this public perception the judges are not in touch and that is what - 

Ms Rattray - No, I did not say that.  The member for Rosevears said there is a perception they live in ivory towers.  I said that I do not know about that. 

Ms FORREST - Sorry, okay.  It goes on in another section saying - 

Public opinion is multidimensional. 

Public opinion is not one dimensional, rather, it is multidimensional and contingent on particular circumstances.  The jury survey methodology, which covers all trials over a lengthy period and therefore picks up a realistic assortment of sex, violence, drug and property cases, is better able to reveal broad differences in attitudes to particular offence types than the standard vignette methodology.  The results showed a striking disparity in attitudes to different types of offences. 

For property offences, jurors were more than twice as likely to be less severe than the judge than more severe. 

On the question of whether it is children or not, it went through a whole range of cases and some of them would have been children and some of them would not have been - 

For sex, violence and drug offences, the split between less and more severe was much more even.  The difference in offence types if borne out in Stage 2.  When asked how appropriate the judge's sentence was, jurors were most satisfied with property offence sentences (57% very appropriate) and least satisfied with drug and sex offence sentences (around 35% very appropriate). 

Comparing the judge's sentence with the juror's preferred sentence at Stage 2 showed that jurors were least likely to have preferred a more severe sentence for property offences (28%) and most likely to have preferred a more severe sentence for sex and drug offences (46%). 

Ms Rattray - They were least likely to have preferred a more severe sentence for property offences? Thirty-five per cent? 

Ms FORREST - Twenty-eight per cent.  Attitudes to judges, another section there - 

Just as 90 percent of jurors thought that the sentence imposed by the judge was appropriate, a substantial majority of 83 percent also thought that judges were in touch with public opinion.  In contrast with representative surveys that have found that only 18-20% of respondents thought that judges were in touch with the public. 

That is Hough and Roberts (1998); Merlees-Black (2001) - 

… jurors in this study who all had first-hand contact with judges were much less likely to say that judges were out of touch. 

It is easy to throw stones at people you do not know. 

Ms Rattray - I was only reflecting my community; I did not answer a survey. 

Ms FORREST - No, I am not talking about that.  I am saying that it is generally easier to criticise someone you do not know.  People are quite happy to abuse people over the phone, but they will not abuse them face to face. 

Mrs Hiscutt - Especially Facebook, it is terrible. 

Ms FORREST - That is the thing.  It is easy to demonise someone you do not actually know.  This is what is happening with our judiciary at times, because they are seen as people who are well educated, well paid and all that sort of stuff. 

Mr Valentine - Faceless. 

Ms FORREST - Yes, faceless people.  Once people know and are exposed to them in this sort of way, it completely changes the way they see them.  I encourage members to read the whole document.  In conclusion it says - 

The final results of the Tasmanian Jury Sentencing Study confirm the preliminary findings reported in an earlier paper (Warner et al. 2009), which suggested that representative surveys cannot be taken at face value.  The results show that a substantial majority of jurors with firsthand experience of judges consider that sentences are appropriate and that judges are in touch with public opinion. 

By surveying members of the public who have engaged directly with the criminal justice system in a much more meaningful way than those who form their perceptions secondhand, via the mass media - 

and social media, too, I would suggest, but that is not in the document - 

… the study has shown that the jury survey methodology provides a better approach to finding a reliable source of informed public judgment of judicial sentencing. 

I commend this paper to members.  It shows generally there is a broad support for the role of our judiciary and that if we maintain the separation of powers, we do ourselves a great service. 

There was also evidence to show, and this was mentioned at our briefing from the Law Society, and very clearly from the DPP, that in recent times the terms of imprisonment and the sentencing in relation to these sorts of crimes against children, and particularly sexual crimes, have increased.  I repeat:  they have increased.  It is already working. 

The courts have got the message.  We know most people think they are in touch but they are responding to community expectations.  I expect perpetrators of these terrible crimes to be imprisoned.  In the earlier debate on the mandatory sentencing bill, I quoted an article by Mirko Bagaric from the Deakin University School of Law, in which he said that the most severe punishment should be reserved for serious sexual and violent offenders.  He means imprisonment in that regard.  I agree, and that is what the courts are doing. 

We probably could do a bit more work with our media 'friends' in getting them to report these matters in a way that enables the public to be better informed about the reasons behind sentencing.  People can look at the judge's rulings at times, but that is difficult for a lot of people.  We have a high level of functional illiteracy in this state and these judgments are not easy reading.  You almost need to be a lawyer to interpret them at times.  It would help if the reporting was a bit more thorough. 

Going back to the overall issue of mandatory sentencing, I refer to the Sentencing Advisory Council's report of September 2016, Mandatory Sentencing for Serious Sex Offences against Children.  The council was clearly given the task of suggesting a mandatory sentencing framework for these crimes.  It was not asked whether it thought they should be introduced; it was:  how do we introduce it?  The council had to start from that premise.  It did an inordinate amount of work to get to the point where we now have a bill in front of us.  Throughout the report, front and centre is the fact the council does not support mandatory sentencing to a jail term.  It does not believe that is right; it believes it should not be introduced - not just for this, but for anything.  

Most members have looked at the report.  The main objections are an incomplete guidance system and the removal of the separation of powers.  Mandatory sentencing may lead to unrealistic expectations.  People think that because we now have mandatory sentencing, people will be locked up for 20 years.  No, under the mandatory sentencing regime in this bill, the shortest term it could be is four years and that could be reduced to two years.  If people expect that under mandatory sentencing offenders will now be locked up for a very long time and they are not, what are we going to see on the front page of the Mercury and how will that affect victims? 

We also heard from the Sentencing Advisory Council and many others that mandatory sentencing reduces the incentive to enter a plea of guilty and thus forces victims to go through the whole court process, which is absolutely harrowing.  It causes them to relive experiences; they are re-traumatised - as if having to go through the process of even reporting it has not been enough and the invasive procedures that flow around that, particularly for a young child. 

Discretion is transferred from judges to prosecutors - I touched on that.  

There are significant financial costs in having more people in prison, although I do not believe that in itself is a reason people should not go to prison if that is the best alternative.  We need to look at other avenues to deal with people who perpetrate such crimes.  

The report also mentioned that the introduction of mandatory minimum sentencing may be premature.  

In conclusion, in this chapter the council says - 

After a consideration of these concerns and as a result of the process of conceptualising the principles that should guide the introduction of a mandatory minimum sentencing scheme, the Council's view remains that mandatory sentencing is inherently flawed.  During the Council's consultations with stakeholders, strong opposition to the introduction of mandatory sentencing was expressed by the Bar Association, the Director of Public Prosecutions, the Prisoners Legal Service and the Law Society. 

These are people who deal with victims as well as perpetrators.  Some people think they only act for the perpetrator; no, they do not - 

Further, the Council notes the recent decision of the Supreme Court of Canada in R v Lloyd, which held that mandatory minimum sentences for drug trafficking were unconstitutional given that such sentences cast the net too widely and caught not only serious offending but also conduct that was much less blameworthy.  The majority of the Court observed: 

          the reality is this:  mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people, are vulnerable to constitutional challenge.  This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found to be unconstitutional.

 Australian courts have noted similar concerns, stressing that there is a wide range of circumstances in which serious offending can occur, and the importance of the need to maintain judicial discretion in the imposition of sentences in order to prevent injustice. 

In the Northern Territory, the decision in Trenerry v Bradley, Mildren J expressed the view that: 

Prescribed minimum mandatory sentencing provisions are the very antithesis of just sentences.  If a court thinks that a proper just sentence is the prescribed minimum or more, the minimum prescribed penalty is unnecessary.  It therefore follows that the sole purpose of a prescribed minimum mandatory sentencing regime is to require sentencers to impose heavier sentences that would be proper according to the justice of the case. 

These views reflect the grave concern that the Council holds that mandatory minimum sentencing for sexual offenders in Tasmania will create injustice by unduly fettering judicial discretion, and by treating 'unlike cases as like'.  Accordingly, the Council reiterates its previous recommendation that mandatory sentencing not be introduced in Tasmania. 

That is in bold in the Council's report - 

This recommendation should not be taken to mean that Council considers that sexual offences committed against children are not serious, or that serious sexual offenders ought not receive appropriate sentences.  Instead, the Council's view is that the introduction of mandatory minimum sentences will create unjustified unfairness without achieving its stated aims of deterring offenders and increasing transparency.  

Further, any attempt to ameliorate the injustices of a mandatory sentencing scheme by restricting its operation to more deserving cases, as the Council outlines in Part B, creates difficulties and introduces undue complexity in the sentencing process. 

The council is sending a pretty clear and consistent message.  I said I was very much challenged by this legislation because of who it applies to - our children.  I have been consistent in my approach to mandatory sentencing, and I will continue to be so.  I hope I do not see some social media or media releases from the Government saying that any of us who oppose mandatory sentencing in this form do not care for children, or do not believe children should be protected under the law.  I absolutely and fundamentally believe that, but I think imposing a mandatory sentencing regime is fraught for all the reasons I have outlined. 

Mr Farrell - Unfortunately, that accusation has been made of some of us already. 

Ms FORREST - It was made during my election campaign, although not in relation to this bill.  I am sure it is going to be made again, though I hope it is not.  I will stand up and defend myself.  

We need to consider other options.  There are views that the system is working and that penalties are increasing.  We hear that generally the public believes that judges, when they know them, are in touch with the community.  It allows each case and each offence to be considered on its merits.  Removing the discretion of the court is what is unfair.  

I will continue after lunch, but I want to comment on some comments made by the children's commissioner.  I found it staggering that the bill has 'children' in the title and the Commissioner for Children and Young People was not consulted during the development of this bill.  Why was that the case?  He has a very important role with children.  He is not a lawyer; he made that very clear.  He was very concerned about the re-traumatising of children if more people plead not guilty when trying to avoid a mandatory sentence, rather than letting the merits - or the lack of merit perhaps - and the circumstances of each case be assessed individually.  He acknowledged the lifelong and significant outcomes of sexual assault. 

Sitting suspended from 1 p.m. to 2.30 p.m. 

Resumed from above.

 [2.36 p.m.]

Ms  FORREST (Murchison ) - Mr President, before lunch I was reflecting on the Commissioner for Children and Young People's input to our briefing this morning.  I made the point that I found it staggering that the children's commissioner had not been consulted in the drafting of this legislation.  I want to reiterate and quote a couple of points he made in his speech, which he provided in speaking notes to us.  I support his view on the points he makes here.  He makes the following points -

It is every child's right to live free from violence.  Unfortunately we know that children are not always safe from harm and, despite the difficulties involved in measuring prevalence, it is clear that child abuse, including child sexual abuse, occurs at significant levels within our community.  Sexual offending against children is a serious and grave issue.  It has long-term social and emotional cost to children, their families and our community at large.  We must do all we can to prevent and respond to it. 

He then goes on to talk about the issue of mandatory sentencing.  We all agree we need to do whatever we can to prevent these crimes against children because they are abhorrent.  They are absolutely unacceptable and a lot of them happen behind closed doors within families.  It is not just out there on the street with the stereotypical paedophile.  It is much more sinister than that and pervasive in our communities, unfortunately. 

The commissioner went on to say - 

I acknowledge and welcome the Government's commitment to further strengthening our responses to this issue.  It is, however, very important that initiatives to prevent or respond to sexual offending against children are supported by evidence, that they will have the desired effect and not lead to unintended and undesirable consequences. 

The member for Rosevears raised that point.  If there was evidence to support this as a way of reducing or preventing these crimes occurring, I am sure the Government would have brought it forward in support of its argument.  We do not have any of that.  We heard the courts are already responding with increasing penalties without the mandatory provision. 

The commissioner goes on to say - 

The Council has very clearly expressed the view that mandatory minimum sentencing is inherently flawed; that mandatory sentences will create injustice by unduly fettering judicial discretion and should not be introduced in Tasmania. 

That is on page 6 of the council's report.  He said further - 

It is important to note that a Joint Select Committee of the Parliament of NSW on Sentencing of Child Sexual Assault Offenders also reached the conclusion that mandatory minimum sentencing should not be introduced for child sexual assault offences in that State.  In reaching that view, it relied on evidence it heard from the NSW Ombudsman, the NSW Bar Association and the Director of Criminal Law Reform of the NSW Department of Police and Justice, among others. 

It is not just me, or people within Tasmania or our own Sentencing Advisory Council saying that - it is other bodies as well. 

I fear this constant push for mandatory sentencing is sending a very inappropriate message to our judiciary.  The member for Rosevears also raised this.  If we undermine the judiciary, it is a very serious problem.  You undermine public confidence in our judiciary, and that is a serious problem.  

Members would be aware three members of parliament are currently facing the Supreme Court in Victoria over recent comments they made in relation to basically the same sort of issue, where there is an undermining of our judiciary going on.  Numerous articles have been published in the media in recent days, including opinion pieces and other commentary, relating to an article published in the Australian.  Tweets sent by two of the MPs subsequently were deleted. 

I want to read from an article in today's Guardian, which says - 

Coalition ministers delete tweets critical of judges after court hearing. 

Two of the Turnbull government ministers who could face contempt of court proceedings have deleted tweets containing criticisms of the Victorian judiciary. 

The human services minister, Alan Tudge, the health minister, Greg Hunt, and the assistant treasurer, Michael Sukkar, were ordered to appear before the Victorian court of appeal on Friday to explain comments they had made to the Australian describing the appeal bench as 'hard-left activist judges' who were 'divorced from reality' and conducting an 'ideological experiment'. 

The comments concerned an appeal being heard by the chief justice, Merrilyn Warren and judges Mark Weinberg and Stephen Kaye over the sentencing of two Melbourne teenagers - Sevdet Besim and a teen known only as MHK - which the commonwealth director of public prosecutions argued had been too lenient. 

The three ministers, who did not appear in court in person at the extraordinary hearing, withdrew their comments through the solicitor general, Stephen Donoghue QC, but did not apologise. 

If they were to be prosecuted and convicted, they could be ineligible for parliament under section 44 of the Australian constitution, which applies to anyone convicted of an offence that carries a possible penalty of a year or more in jail.  A person does not actually have to be sentenced to jail to be ruled ineligible to hold a seat in parliament. 

Mr Dean - I do not think we are in that position, are we? 

Ms FORREST - You would be if you made comments similar to what these ministers did. 

Mr Dean - There may be if I did make a comment, yes. 

Ms FORREST - This is before the court - this is serious. 

Mr Dean - Yes, I know that. 

Ms FORREST - This is undermining of the judiciary by senior members of parliament - 

Mr Dean - They were commenting on the judiciary's position.  It is not undermining; it is commenting on the judiciary's position they were upholding - 

Ms FORREST - Yes, undermining the judicial process and the decisions of the judiciary, Mr President, so it is a serious case.  That is why it is getting all the attention it is.  If we undermine - 'we' being an individual member of parliament or the community at large - say the judiciary are doing a bad job, are not in touch with public opinion or reality and are living in ivory towers, that undermines public confidence in the judiciary, and it is not okay. 

We need to be cautious.  By continuing to say they are not doing a good enough job, we, as members of parliament, feel the need to tell the judiciary how to do their job.  Mandatory sentencing is wrong and that is why I cannot support this bill, even though I strongly believe we need to do whatever we can to protect our children. 

We need to allow the courts to make the decisions we appoint judges to make, particularly in these cases of serious crimes. 

I again quote from an article I have quoted on previous occasions, because it is in context of the debate on this particular bill.  It is an article titled 'Mandatory Sentencing' by Declan Roche, published in the Australian Institute of Criminology's Trends & Issues in Crime and Criminal Justice in December 1999. 

It is a good article and people should read it if they have any doubts about whether it is the right thing to do or not.  The author says, under Democratic Arguments - 

Mandatory sentencing schemes are also defended on the basis that they are the product of democratic parliaments, and as such respond to, and represent, public concern about crime. 

That is the argument for it, Mr President. 

He goes on - 

Elected legislatures are sensitive to community concerns about crime in a way that appointed judges are not. 

Other members mentioned we face the people and have to justify what we stand for.  You can have all your political opponents saying the opposite about you or whatever they like about you and they can undermine your credibility or seek to.  Judges do not have to worry about re-election, which is a good thing.  It goes on - 

Mandatory sentencing schemes respond to distress and fear within the community about criminal activity.  For instance the Northern Territory Government announced that its mandatory sentencing laws 'deal with present community concerns that penalties imposed are too light' ... 

Quite apart from the effect on crime rates, mandatory sentences arguably reassure the public that politicians have listened to, and responded to, voters' fears. 

It is okay to respond to voter fears but you need to inform them, engage with them and explain what the difference is here and what other measures we should take to prevent these crimes occurring - 

The counter argument is that, while no-one disputes that there is considerable fear of crime, particularly violent crime within the community … it is questionable whether people want harsh sentences generally and mandatory sentences specifically. 

The member for Derwent talked about New Norfolk, where they want a harsh penalty.  They do not necessarily want a mandatory sentence; they want people to be penalised for the crimes they have committed.  It should not be about revenge; it should be about making sure the perpetrators understand the seriousness of their crimes and that they have sentences that match their crimes.  That is for the courts to decide, after taking into account all relevant factors. 

The making of exceptions is prohibited by mandatory sentences.  The judges are left with no choice.  They may be able to impose four years with two years' probation, or they may say, 'no probation - four years', or whatever it is.  There is flexibility, but they will have to impose at least two years in certain circumstances under this bill.  It goes on - 

Judges given discretion about the imposition of sentences, however, can and do take into account the sorts of factors the public considered in making exceptions, namely the seriousness of the offence, the mental state of the offender and the use of violence.  There is also a more cynical strain to the political critique of mandatory sentencing.  Critics of mandatory sentencing argue that it is a policy adopted by politicians attempting to gain or retain power by playing on a community's fears, and its superficial understanding of criminal law. 

After concluding that mandatory sentencing does not work when assessed by its stated objectives, Morgan poses the rhetorical question 'Or am I missing the point?  Perhaps the real question is nothing to do with law, criminal justice or crime prevention.  Perhaps it is whether the symbolic power of mandatories is such that they will help politicians win elections' ... 

Mandatory sentencing is claimed to prevent crime, introduce certainty and consistency into a criminal justice system lacking in those qualities, and reflect community condemnation of crime.  Available evidence suggests that mandatory sentencing can deliver modest, but expensive crime prevention.  The large government investment required by mandatory sentencing laws would arguably return a much greater yield in terms of crime prevention if it were invested in prevention policy in areas such as education. 

This is my point.  We need to do much more as a society to prevent these assaults happening in the first place.  That is through public education and rehabilitating perpetrators so they do not reoffend, but particularly through public education and awareness. 

Some years ago, I saw a sign in a university instructing women on how they could avoid rape.  Excellent idea.  How can women avoid rape?  By not wearing short skirts, perhaps, or whatever it is.  Why do they not have signs saying, 'Do not rape women'? 

Mrs Hiscutt - It should not matter what they you wear. 

Ms FORREST - That is my point exactly, Acting Leader.  It is about education and about trying to prevent these things happening, so the damage is not done.  Regardless of whether a person has a long, short, medium custodial sentence or no sentence, the damage done to that victim is still done.  It cannot be undone.  Yes, a jail term will give them some comfort that the perpetrator has been put away for a while.  What we are hearing is these custodial sentences are being imposed. 

I have had a sense of deja vu a few times this week, but in the context of such an important matter, it needs to be on the record why I am not supporting the mandatory sentencing aspect of this legislation.   It is not because I do not care about children and their welfare.  Anyone who suggests that is so far from the truth, it is staggering.  I care as much as anybody, perhaps more than some, about our children, and I always have.  As a midwife, you cannot not love and care for children, or as a mother, or as a daughter.  I hope we do not see any other rubbish come out of the Government in relation to this bill if it does not succeed, or even if it does - further comment that might be made about this 'voting bloc' that is blocking mandatory sentencing.  It is not because of the issue; it is because it is fundamentally not the right thing to do. 

I hope I have made my points very clear.  I reiterate my absolute abhorrence for these crimes.  I have seen the damage they do to people.  I have acted at times as a mandatory reporter to try to prevent further harm.  In my role as a sex educator, I have done everything I could to prevent the harm.  Right from kindergarten, I used to talk about good and bad touches.  I tell you what - a lot of kids would roll around and giggle when I said 'penis' and 'vagina' at that age, and even up to grade 6 often.  It took a little while for them to settle down after I had used the correct terminology for certain body parts.  But when I talked about good and bad touches and how it made you feel, and how to identify what is a good and bad touch, those children all sat up and listened.  They all listened.  I had disclosures as a result of that, which I dealt with in the appropriate way.  It is about education; it is about empowering young children to know what is okay and what is not, and not to be afraid to say, 'This is not okay.  Don't do it.' 

As we know, by far and away the majority of sexual abuse occurs in the home, with known perpetrators.  We have to empower our children through whatever means we can to try to avoid this happening to them.  Unfortunately, we will not be able to protect all the children, and we need to help and support those who unfortunately are victims.  Let us educate people.  Let us help them to avoid this.  

These are terribly serious crimes and the aggravating circumstances already in section 11A of the Sentencing Act are appropriate.  The additional aggravating factors there are just disgraceful to think about and revolting.  It is right that they are there.  The courts will take those into account when they are imposing sentences.  

These crimes have lifelong impacts.  People never forget them; they never really recover from them.  We need to make sure we have services available to help people who are victims   young, old, male, female, transgender, whatever they are.  We need to help these people because it is a most dreadful thing to have to go through.  

I will continue to support the judiciary in doing its job.  We can send strong messages about our views on what sort of sentences would be appropriate, but we do not have all the information before us that the court does.  Let the court decide.

 

 

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