Dr WOODRUFF (Franklin – Leader of the Greens) – Honourable Speaker, I also thank Jarad and Harrison, who are with us in the Chamber today, for their courage and persistence at being outspoken about their experiences so that other people never have to be retraumatised and suffer the way they have suffered. I recognise that their experiences are at the heart of the legislation we have before us today. I will also reflect on the commission of inquiry into child sexual abuse in Tasmanian government institutions, which dealt substantially in its final report with the experiences they’d collected, the many observations from victim/survivors of child sexual abuse about the significant re‑traumatisation when they were forced to sit and listen to testimony about perpetrators in court in relation to sentencing. The so-called ‘good bloke’ shield has been used many times. The commission of inquiry went into the particularly disgusting case of John Wayne Millwood. When he was being sentenced for his many crimes, the court received a flood of good character references from friends,. business colleagues and, I believe, even a former Tasmanian police minister.
The nature of perpetrators of sexual abuse, especially child sexual abuse, is that they make it their life’s work to be a central, trusted part of the community. That is the insidious and disgusting nature of grooming. Not just victim/survivors are groomed, but their family, their friends, their community organisations. Everybody thinks that this person has a level of respectability beyond reproach. We can’t underestimate the historical power that this has had on judges and magistrates or juries in forming the type of sentence that a person receives. Ms Haddad, the Labor shadow has described a couple of examples. I think it’s incumbent on us to understand, and I believe there is a significant change thanks to the work of brave victim‑survivors and the long push to get a commission of inquiry in Tasmania, and the three years of work and people retraumatising themselves through having to relay experiences that they may not have shared with anybody else: Through those people’s stories, we now understand much more as a community how perpetrators work and how careful we need to be to make sure that we have an objective and questioning mind, we look at the evidence before us and we listen to and believe children and young people when they tell us what is happening to them. That we believe all people who make allegations of sexual abuse, in particular.
The other case that has been enormous and is yet another example coming from the commission of inquiry, has been the investigation into Senior Sergeant Paul Reynolds, now deceased, and the evidence of how he operated in the community as somebody of great standing and worked to insinuate himself into football clubs and all local community groups. This is the MO of sexual perpetrators. We understand the motivation for this legislation before us today.
Having said that, any changes that provide direction about the matters a judge or magistrate would take into account on sentencing have to be considered carefully because it is critical that our justice system has the capacity to take account of the complexity, nuance and highly individualised circumstances that need to be considered in determining an appropriate sentence for the crime that’s been committed. We have two broad types of matters that are considered, and this bill mentions both of these: the offender’s prospects of rehabilitation and the risk of them reoffending. Those two considerations are important for many reasons.
The range of submissions was broad. I thank all the organisations that made submissions, in particular, the Law Reform Institute, the Sexual Assault Support Service, the Family and Sexual Violence Alliance, the Australian Lawyers Alliance, the Community Legal Centres, the Tasmanian Aboriginal Legal Service, the Women’s Legal Service and a number of individuals in the law society. Their submission are some I have considered. The submissions ranged from outright support to outright opposition. Most stakeholders fell in the middle but expressed some uncomfortable misgivings about the first draft of the bill. People who were opposed to the bill expressed that it was unnecessary and would fetter judicial discretion. They noted that courts would determine themselves what weight it is appropriate to give to good character references. The criticisms from people who were not outright opposed included that the offences were too broad, that the courts should be able to consider the evidence in some circumstances, that good character itself is too broad and undefined, and that it shouldn’t apply to offenders under the age of 18.
This Sentencing Act 1997 amendment that we have before us prohibits courts from receiving particular evidence unless particular circumstances apply in relation to particular offences. It applies to sentencing decisions and decisions on whether or not to record a conviction to separate matters. The court is prohibited from taking into account evidence if it’s a personal reference in support of the offender, as well as submissions or evidence in support of the offenders standing within, or positive contributions to, the community.
Having said that, the bill provides that a court may take evidence into account anyway if the court considers it’s relevant to the offender’s prospect of rehabilitation or the risk of reoffending. More broadly, as we understand it, the court can take the evidence into account if they consider it’s appropriate to do so, having regard to the nature and circumstances of the offence, the harm caused to the victim of the offence, and the vulnerability of the victim.
It does prescribe to relate to just a set range of offences: sexual offences, a family violence offence, an indictable offence involving violence against a person, the Criminal Code ill treatment of a child, the Criminal Code stalking and bullying offences, or Commonwealth offences that are substantially similar. It does expand the definition of a sexual offence to include the sections of 125D, E, and 130B, C and D of the Criminal Code, and 130B,C and D of the Criminal Code relate to child exploitation material, while 125D is communications with intent to procure a child or a young person, and 125E is failure by a person in authority to protect a child from a sexual offence.
The original bill applied to all offending and only provided for an exemption if the offence was not a serious offence and that the court was satisfied in the circumstances it would be appropriate to take into account. The final bill before us is, therefore, far more confined. It leaves more discretion – appropriate discretion, we believe – for the courts to consider whether it’s appropriate in the circumstances to take the evidence into account.
The bill no longer applies in sentencing to people under the age of 18 in determining their sentence, but it does apply when determining whether or not to record a conviction. I thank the minister’s staff for a substantial briefing they gave to Ms O’Connor MLC, who has responsibility for this justice legislation – I’m taking it through the House on behalf of the Greens. Thank you for the very substantial conversation we had. We did raise this issue about the fact that the bill, as it has been constructed, as it stands, does not apply in terms of the clause 5 matters not to be taken into account in sentencing offenders. Under 11AA(2), it does apply only in relation to an offender who attained the age of 18 years at the time the conduct constituting the serious offence occurred. Ms O’Connor raised the question about why the same approach wasn’t taken in terms of recording a conviction for a person under the age of 18, and I think we would all understand the Attorney‑General has spoken about this previously, about young people, impulsivity, the way people’s brains develop, the fact that convictions stay there for their life, a whole range of other matters, and it is appropriate for a court to be able to also exercise their discretion and make a decision about whether, on the offences that are covered within this bill, a conviction should be recorded or not. On that basis, we flagged that we would be preparing an amendment to clause 5 on that matter and I’m delighted that the government has decided to introduce that amendment themselves and that is fantastic. Thank you, Attorney-General. We can talk about that when we go into committee. I think that’s an important and correct safeguard to make.
I will talk about clause (5)(3) in determining the appropriate offence for an offender convicted of a serious offence, of course, is not to take into account as a mitigating factor the following submissions or evidence:
- a personal reference in support of the offender; or,
- submissions or evidence in support of the offender’s standing within or positive contributions to the community.
It goes on to say under subsection 4 despite that ‑ subsection 3 – a court may take into account as a mitigating factor submissions or evidence referred to in relation to the offender’s prospect of rehabilitation or the risk of the offender re‑offending.
We clarified that this way the bill is constructed does not preclude a court hearing evidence, testimony, statements from doctors, psychiatrists, other relevant medical professionals. It is a distinction between the good character, ‘good bloke’ reference that we’ve talked about, the person standing in a community, from other people in the community who talk about the contributions they make and what a central part they are to the social fabric, et cetera, from the testimony of medical professionals relevant to matters about whether an offender is able to be rehabilitated, or the extent to which they believe or don’t believe a person can be rehabilitated and their view about the risk of an offender re-offending. There may be a whole range of reasons they would like to submit to the court on that matter. They are distinct from what is understood as a good-character reference. Just for the discussion, it would be useful to hear the Attorney-General confirm our understanding, that that is the case.
I think it’s fair to say, there was a range of concerns that were provided by stakeholders and it seems that much of the criticism has been meaningfully responded to. However, we question why this didn’t go through a sentencing assessment – that is, why the Sentencing Advisory Council (SAC) didn’t have an assessment of this where the evidence base, notwithstanding the testimony of victim/survivors, not in any way wanting to detract from that, but the views of the SAC in terms of where this fits and their response during the drafting of this legislation. It was a similar matter, I understand, that was considered by the Sentencing Advisory Council in New South Wales and we just question why the government didn’t take the opportunity of seeking our Tasmanian SAC’s views on this.
The final thing I want to say is it’s been pointed out by the Law Reform Institute, this is new and it’s important to understand the concerns that were raised about the risk of unintended consequences over time. We questioned why there isn’t a review of this bill, why there is no monitoring, no statutory review, and why there’s nothing that stipulates any monitoring of the effect, effectiveness or not, a change in practices of sentencing over a period of time.
We will, I understand, be raising this as well in the Legislative Council, and I’d like to hear the attorney’s views about your openness to putting a review clause into this amendment bill. I think it’s pretty important. It’s important to understand the effectiveness of these matters. Other states have done this differently. It would be good to understand, you know, how we line up over time with the impact of these sorts of changes to the discretion of judges and magistrates to make decisions in sentencing. Also how we stack up with other states and what the impact is for a whole range of stakeholders: victim/survivors, defence, prosecution, other people in the sector who provided their views in the submissions we have before us. Your responses on that would be good.
Thank you, Honourable Speaker, for the opportunity to talk. The Greens will be supporting this legislation. I want to again thank Jarad and Harrison for spending the time travelling around Australia and doing their bit to make sure that this situation is something that victim/survivors don’t have to suffer through in future.
