Criminal Code Amendment Bill - Second Reading

HON LYNN MacLAREN (South Metropolitan) [3.31 pm]: The Greens oppose this legislation. I want to affirm what the bill intends to do. Youth custodial officers perform crucial and challenging roles, and they are in close contact with serious offenders under demanding conditions. They are subject to violent assault and the prevalence of assaults is a matter of concern. They have a detrimental effect on officers, their families and corrective services as a whole. The reason we oppose this legislation is that it is inadequate to protect youth custodial officers. I maintain that it is an ineffective deterrent. I have listened at length to the Attorney General and others speak in support of this legislation and they have clearly listened to my very brief contribution to the second reading debate in which I stated our opposition to mandatory sentencing. It is not just me who believes that mandatory sentencing is an inadequate deterrent; it is not only the Greens who oppose this.
I will just take a couple of minutes, honestly, to provide other expert opinions on mandatory sentencing. We heard in the debate on the original bill that the Youth Affairs Council of WA believes that there is no evidence to suggest that mandatory sentencing acts as a deterrent to offending. We know that the Criminal Lawyers’ Association of Western Australia believes the same thing. It stated that it was opposed to the concept of mandatory sentencing and that it believes it is essential that sentencing judges or magistrates retain the discretion to impose a proper sentence. The Youth Legal Service also believes that mandatory sentencing will not work and opposes it. Ever so briefly I mention the restriction of judicial discretion. The Attorney General gave his opinion at length about the abilities to restrict it; however, with respect, I still disagree. My disagreement is based on advice from experts in the field. The restriction of judicial discretion displaces the judgement from the judicial officer to the police and prosecution, as outcomes are predetermined. Such a scenario is clearly undesirable and has previously received the attention of the High Court. I quote Chief Justice Barwick who commented in Palling v Corfield (1970) 123 CLR 52 at page 58 —

It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime.
In my contribution to the second reading debate I drew the chamber’s attention to the recent moves in the United States away from mandatory sentencing and I want to put on the record ever so briefly a quote from the US Attorney General Eric Holder. He said —
“A vicious cycle of poverty, criminality and incarceration traps too many Americans and weakens too many communities,” …
“However, many aspects of our criminal justice system may actually exacerbate this problem rather than alleviate it.”
He went on to say that mandatory minimum sentences —
“… breed disrespect for the system. When applied indiscriminately they do not serve public safety. They have had a disabling effect on communities. And they are ultimately counter-productive.”
We do not oppose this legislation lightly and we do not oppose mandatory sentencing lightly. I remind members that the Greens were the only party to oppose the Criminal Organisations Control Act 2012, which contained mandatory sentencing provisions. Hon Giz Watson, the then spokesperson for justice for the Greens, moved an amendment to the Dangerous Sexual Offenders Amendment Bill 2012 to remove mandatory minimum sentencing provisions, which was opposed by all other parties and therefore defeated. We were the only party to oppose the minimum mandatory sentencing provisions in the Road Traffic (Miscellaneous Amendments) Bill, the Misuse of Drugs Amendment Bill 2011, the Road Traffic Amendment (Hoons) Bill 2009 and the Road Traffic (Miscellaneous Amendments) Bill 2012. We were the only party to oppose the Criminal Code Amendment Bill (No. 2) 2009, which contained mandatory sentencing provisions. During the state election Hon Giz Watson, on behalf the Greens, promised to continue to oppose all proposed mandatory sentencing legislation. In closing, I agree with the Attorney General: we will continue to oppose these clauses and we oppose this bill.