Mr  Pallas (Tarneit) — I rise to indicate that Labor will not be opposing this bill. In  doing so,  I acknowledge  that the  government put  to  the  people  a proposition about how it would deal with offences of the nature addressed by the bill  — that is,  effectively  through a mandatory  sentencing system. The bill introduces two new gross violence offences. Those offences include intentionally causing serious injury in circumstances of gross violence and recklessly causing serious injury in circumstances of gross violence, both of which carry with them a four-year minimum sentence, as is described in the bill. The bill also replaces  the definition of serious injury in the Crimes Act, which affects both the new and numerous other offences.

In saying that  opposition  members do not oppose  the bill, I also say  that we acknowledge that  during  the 2010 election  campaign coalition members  made  a number  of  announcements about  how  sentencing  issues  would  be  dealt with. Firstly, there was an indication of baseline sentencing arrangements for various offences.  Parliament  is  yet  to  see that  legislation.  We  appreciate  that therefore the government  is finding the  implementation of that commitment very difficult.  Secondly, only a  few  days before the  election, the now government made a  promise to introduce  minimum sentences for  intentionally or recklessly causing  serious injury  with  gross  violence. It  is  the  contention  of  the government   that  this  legislation  effectively  implements  that  commitment. However, the election policy was that  the  minimum sentence would be four years for adults and two years for 16-to-18-year-olds.

As it was described  in the policy, judges would  be able to depart  from  those mandatory sentencing arrangements  only in what was  described in the policy  as exceptional circumstances — circumstances defined as a case so unusual that the Parliament would never have  intended it to be  covered. Effectively a provision of  the  policy  that  was  taken  to  the  election  was  to  avoid  unintended consequences in the law.

As members can see from the legislation that we are debating today, this bill is a very substantial departure from the commitment espoused by the government. The bill  changes the  definition  of serious  injury  to  contemplate  injury  that endangers  life  or is substantial and protracted or destroys a foetus. The bill creates two new offences: causing serious  injury intentionally in circumstances of  gross violence,  and  causing injury  recklessly  in circumstances of  gross violence.

Gross violence is defined as a concept which incorporates the characteristics of prior planning where an offender causes serious  injury in concert with at least two others — that the person planned  in advance to use a  firearm or imitation firearm  to cause serious injury and that the offender caused  or  continued  to cause a serious injury after the victim had already been incapacitated.

For both  offences the bill brings into effect the minimum four-year term unless the court finds that a  special reason exists. The bill also makes it clear that the minimum non-parole period does not apply to offenders under 18 years of age, so those commitments made in a pre-electoral sense have not been honoured by the government.

The special reasons allow the court to apply the four-year minimum sentence.

It is quite important that we appreciate that this is not a mandatory sentencing scheme, it is not what the government said it was going to put before the people of  Victoria  and certainly the legislation is a  far  cry  from  the  so-called commitments. In many cases it is  a case of the large print giveth — that being the policy; and the small print taketh away — that being the fine print of this legislation.  The special  reasons  that are  being  put  forward to  apply  the four-year minimum include the offender being between 18 and 21 years of age. Let us recall that the proposal the government put  when in  opposition was  that it would be mandatory sentencing, albeit for a lesser term, for 16 to 18-year-olds. Now we have a situation where a psychosocially immature 18 to 21-year-old is, to some extent, excluded from the full operation of the legislation.

The  other reason is that at  the time of the offence  the offender had impaired mental functioning linked to the commission of the offence.

This  impairment of judgement,  in effect, constitutes  a  consideration that  a court  may  therefore  vary  from  the  mandatory  minimum; and of course if the offender  assists the law  enforcement authorities. The important  thing is that this provision enables not so much the sentencing related to the offence to vary from the minimum requirement but the behaviour of the offender post the offence, and that really puts paid to the lie that this is a minimum mandatory sentencing system. Finally, the court could propose to make a court treatment order for the offender as an alternative and therefore avoid the minimum obligations.

In  addition there  is a  coverall provision in  terms of  the operation  of the court’s capacity to vary  from the minimum  mandatory arrangements, described as ‘substantial and compelling circumstances’.

In effect we  have so many heads of exemption, together with a coverall capacity for the court to  exempt that what we are really seeing here is  a demonstration that  the whole concept  of  minimum mandatory sentencing  cannot  work, and  it cannot work for exactly the reasons that the legislation itself  lays out. There are far too  many circumstances that  need  to be appreciated,  apprehended  and recognised and the courts  themselves would have found it extremely difficult to have  complied  with what effectively  was,  and was  originally  stated as, the Parliament’s intention, and  in the absence of complying with that  intention, a gross injustice would have occurred.

The government has recognised the folly of  the position it took to the election and, quite frankly, it is not for me to be critical of that. It is a substantial improvement on what was a  reckless and,  indeed, dangerous policy that could have led to gross injustice in circumstances where the exemptions contained  within the provisions which give  effect to  some of  the injustices  that could  occur, and  then the coverall exemption, all demonstrate that much more could have been done, and has been done, in terms of providing a recognition of judicial independence.

But  at  its heart we are  not  opposing the bill  because,  as confirmed by the government, a  judge can avoid  delivering a manifestly unjust  sentence. We can hardly  argue  with  that.  Inflexible  mandatory  sentencing  leads  to  unjust sentences unrelated  to the circumstances of the offence, and  the behaviour and the mental state, for that matter, of the offender.

The  original  proposal  to have  a  four-year  minimum  sentence  and  then  to effectively state that judges must be mind-readers in the basic formula that the law applies — except where we  do  not  want it to — would have  been  grossly unjust and quite  irresponsible in  the context  of trying  to get the courts to interpret the legislative intention of the Parliament.

We  acknowledge that  the  government put  this  policy, albeit a  substantially altered one,  to the electorate on the Wednesday before election day, and we are at least comforted in the knowledge that it has  taken a  very substantial  step backwards from where it was going.  The government seems to have recognised that there are real problems with most mandatory sentencing schemes and, while it may be appropriate in some cases such as traffic offences, most mandatory sentencing schemes face two problems such as ineffectiveness and unjust sentencing.

We  believe a  better approach  would be to recognise that juries should  have a role,  should  be  consulted and  should  advise  judges as  to  the appropriate sentencing.  That  avoids  the  inflexibility  and  the  injustice  inherent  in mandatory sentencing schemes.

See Tim’s speech in Hansard here.