18 March 2014
(Contribution to Debate, 5 March 2014, Legislative Assembly, NSW Parliament)
I strongly object to mandatory sentencing and I oppose this bill. The Crimes Amendment (Intoxication) Bill 2014 introduces mandatory minimum sentences for a range of violent offences if committed under the influence of drugs or alcohol in a public place.
Under the bill, if the offender was intoxicated and the crime occurred in public, regardless of the circumstances, the following minimum prison sentences will apply: five years for reckless grievous bodily harm in company and wounding or causing grievous bodily harm to police officers; four years for reckless grievous bodily harm and reckless wounding in company; and three years for reckless wounding. This bill is a part of the Government's submission to a get-tough-on-crime media campaign, and will do nothing to prevent the types of assaults that instigated such widespread community concern and occurred within my electorate.
While the bill does not include those offences in the Government's initial announcement, which could have seen jail terms for assaults resulting in bruises and scratches, I remain alarmed that these provisions will cause injustice and inappropriate and excessive sentences while increasing prison populations. The Government says mandatory sentences are needed to send a message that if someone gets drunk and/or takes drugs and seriously assaults someone in public, that person will go to jail. But sending a message is futile. All evidence shows that offenders do not consider the consequences of their actions when they are intoxicated. When people are so drunk that their violent inhibitions are gone, they act impulsively and are not thinking about a sentence a court will deliver if they are convicted.
I would like to challenge something said by the member for Hawkesbury in his earlier contribution to the legislation on mandatory sentencing. He claimed that the reduction in violence and assaults during last weekend's Mardi Gras was as a result of people understanding the sentences. To say such is to belittle the work of the local area police and to belittle the work of the Premier and the Minister for Police, the local community, the community organisations and everybody who worked tirelessly over the past 12 months on a better approach towards policing during the Mardi Gras festival. Last year, the instances of violence that occurred were as a result of the police, as the magistrate said in a high-profile case. This year, we had had a year-long focus on policing by consent, rather than policing by force, and that was successful. This year, police were given adequate resources to deal with the large crowds.
Every weekend my electorate has an event-size crowd. This weekend we got the police that we needed for that event. On previous weekends that has not occurred. What we learn from Mardi Gras events is that when the community works together with the police, when there is policing by consent rather than a policing by force approach, we get the positive results that we saw last weekend. I joined the police and local community groups walking late at night on Fridays in the lead-up to these changes, to make sure the community was informed, to make sure they knew their responsibilities and to ensure that people were educated. And what we saw was a good result on the weekend. Justice requires that the punishment fit the crime. This can be done only if courts have broad sentencing discretion that allows them to base a sentence on all relevant circumstances surrounding an offence, the offender and the victim. When parliaments set minimum sentences, prison terms become inflated. Depriving people of their freedom is a serious thing that this Parliament should not treat lightly. It should be done only through a fair and independent trial based on the merits of the case.
An unjust and excessive sentence can ruin a person's life. We are members of Parliament, not judges. We cannot predict every scenario that is relevant to a case, so it is wrong for us to play judge. There are certainly circumstances where I believe the community would accept a sentence lower than the proposed minimum sentences. The NSW Bar Association's latest briefing note provides some examples of potential situations in which the community would consider the minimum sentences set by this bill as excessive and unnecessary, particularly where an offender has no criminal history. The bar explains how "wounding" can include a split lip and how although grievous bodily harm involves serious injuries, these injuries do not have to be permanent or life-threatening, and offenders need only have been aware of the possibility of actual bodily harm, meaning being aware that their action could have caused bruises and scratches.
If the bill passes, offenders are unlikely to plead guilty because if they are convicted they will go to jail regardless of the circumstances or their cooperation in trial proceedings. This will place a heavy burden on the court system. Trials will be longer, which will take up court time and create delays for other cases. Longer trials that need to determine guilt will cause additional stress to victims and their families. That would not occur with a guilty plea. The burden on Legal Aid, which will likely represent many cases, will be further increased. I am particularly concerned about the impact of this legislation on Aboriginal communities. Aboriginal people are already overrepresented in prisons, accounting for 2 per cent of the general population and 23 per cent of inmates. Australian Lawyers for Human Rights points out that incarceration of Aboriginal people goes beyond the offending behaviour and is associated with broader problems of discrimination, poverty and disadvantage.
Alarming is the potential for misuse of these laws identified by the NSW Council for Civil Liberties. The subjective test for intoxication includes affected speech, balance, coordination or behaviour which will make it easy for police to include intoxication in a charge. This could be done wrongly or even deliberately, and essentially allows police to determine the sentence for a crime. I understand that for all offences included in the bill there are alternative offences that a person could be charged with, giving police and prosecutors discretion to set a sentence before a matter has been presented to a court. This is wrong. Locking up people is not the answer. Prisons provide little opportunity for rehabilitation and introduce troubled young people to criminals. Instead, we need to address the underlying cause of alcohol-fuelled violence based on research. We need to invest in prevention strategies that target alcohol abuse, violence and disadvantage.
I understand that in my electorate the State Government is set to cut $6 million from inner-city homeless and youth services. These services help get young people out of unsafe and abusive environments and break the cycle of intergenerational disadvantage. While prevention programs do not get news headlines, they can make a real difference in the long term. Many of the homeless and youth service workers I spoke with say money spent on locking up vulnerable people for longer would be better spent on programs that have an early intervention model to substance abuse and antisocial behaviour.
Judicial independence is necessary to the rule of law and the separation of powers, and is a fundamental requirement for a fair trial. As a member State to relevant United Nations instruments, New South Wales must apply basic principles on the independence of the judiciary, including respect for and observance of that independence and allowing the judiciary to decide matters impartially and without inappropriate restrictions or influence. This bill represents a major change to our criminal law system and inappropriately fetters judicial discretion and will lead to injustice at a time when mandatory sentencing is being repealed elsewhere. Supporting this bill may make some members feel better, but I can assure members that when one talks to non-government organisations and service providers, they will tell one that this legislation will have very little impact on addressing issues of alcohol-fuelled violence and antisocial behaviour. This bill is wrong, it is unnecessary, and I will be voting against it.
Read the other contributions to the debate HERE.