Wednesday, 1 May 2024

Sentencing Amendment (Sentencing Practices for Child Sexual Offences) Bill 2024

Statement of compatibility

Evan MULHOLLAND (Northern Metropolitan) (10:12): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

Overview

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter),¹ I make this statement of compatibility with respect to the Sentencing Amendment (Sentencing Practices for Child Sexual Offences) Bill 2024.²

It is my opinion that the Bill, as introduced to the Legislative Council, is compatible with the human rights contained within the Charter.

This Bill seeks to amend the Sentencing Act 1991 in relation to the sentencing of an offender for a child sexual offence.³ Specifically, this Bill inserts a provision into the Sentencing Act 1991 to provide that in sentencing an offender for a child sexual offence, a court must not make an order suspending the whole or a part of a sentence of imprisonment.

Royal Commission into Institutional Responses to Child Sexual Abuse

The Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) final report was handed down on 15 December 2017. Recommendation 76 of the Criminal Justice Report from the Royal Commission states that:

‘State and territory governments should introduce legislation to provide that sentences for child sexual abuse offences should be set in accordance with the sentencing standards at the time of sentencing instead of at the time of the offending, but the sentence must be limited to the maximum sentence available for the offence at the date when the offence was committed.’⁴

In July 2018, the Victorian Government accepted this recommendation. As of April 2024, there has been no legislative changes made by the government to implement this accepted recommendation.⁵

In 2018, the New South Wales Government introduced the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018 (NSW), which introduced many changes responding to the Royal Commission.⁶ This included changes to the sentencing practices for cases of historic child sexual abuse. In 2022, the NSW Government expanded on this reform, broadening the sentencing standards application to include all categories of offences.⁷ As a result, s 21B(1) of the Crimes (Sentencing Procedure) Act 1990 (NSW) now reads:

‘A court must sentence an offender in accordance with the sentencing patterns and practices at the time of sentencing’.⁸

This Bill, presented to the Victorian Parliament, seeks to incorporate similar sentencing practices into the Sentencing Act 1991 (Vic).⁹ In doing so, this Bill seeks to ensure that victims and survivors of child sexual abuse are adequately protected by the law, and that community expectation concerning the serving of sentences of imprisonment imposed for child sexual offences – whether historical or contemporary – is reflected in the law.

Human rights issues

For the following reasons, I am satisfied that the Bill is compatible with the Charter and, if any rights are limited, those limitations are reasonable and demonstrably justified having regard to the factors in s 7(2) of the Charter.¹⁰

This Bill will have minimal effect of the Charter rights of persons. The impact that this Bill will have on the rights of individuals is weighed against rights owed to other persons and the Victorian community.

This Bill is designed to implement recommendation 76 of the Criminal Justice Report of the Royal Commission.

Where the Bill may impact Charter rights, an overview is provided below.

Right to protection from retrospective criminal laws

Section 27 of the Charter provides that a person must face the penalty for an offence that is consistent with the penalty imposed at the time of offending.¹¹ It provides that, generally, a penalty greater than any available penalty at the time of offending cannot be imposed on any person.

The proposed Bill engages with this section of the charter. The Bill limits the application of rights against retrospective sentencing for cases concerning historical child sexual abuse. The intention of this Bill is to align sentencing patterns and procedures with the current public expectations and the recommendations of the Royal Commission. Given this recommendation was made by the Royal Commission and then accepted by the Victorian Government, I commend these legislative changes as reasonable and proportionate to the Charter rights of Victorians.

This Bill does not impose or introduce greater penalties, it merely requires that where a sentence of imprisonment is imposed, it is to be served and not nullified by being suspended. The Bill seeks to introduce s 35A into the Sentencing Act 1991 which will squarely remove any possibility that a sentence of imprisonment imposed for a child sexual offence can be suspended in part or in full.¹²

The engagement with the right against retrospective sentencing is limited to offenders convicted of child sexual abuse, not the Victorian community at large. Those convicted of offences that are not related to child sexual abuse are not affected by this Bill.

Given the nature of cases of historic child sexual abuse, such matters are often not brought to light and heard before the courts until such time has passed that victims are comfortable and confident in making a complaint. Given victims of these crimes have often overcome lifelong psychological restraints and trauma to share their experiences, it is reasonable that convicted offenders cannot benefit from any delay in reporting their crime, such as to benefit from the suspension of a portion of a term of imprisonment which has not been available since this Parliament legislated to abolish suspended sentencing in 2013.

Therefore, the changes proposed by this Bill are reasonable and proportionate in all the circumstances and compatible with the right against retrospective sentencing. I consider the Bill to be consistent with the right against retrospective sentencing in section 27 of the Charter.

Other

All other human right impacts of this Bill do not expand on existing engagement with charter rights already contained within the Sentencing Act 1991.¹³ In light of the foregoing, it is my view that other elements of this Bill have previously, and should therefore remain, acceptable to this Parliament.

I consider that the amendments in the Bill only engage in Charter rights in ways that are reasonable and demonstrably justifiable and is acceptable to this Parliament.

Evan Mulholland MP

Member for Northern Metropolitan Region

¹ Charter of Human Rights and Responsibilities Act 2006 (Vic).

² Sentencing Amendment (Sentencing Practices for Child Sexual Offences) Bill 2024.

³ Sentencing Act 1991 (Vic).

⁴ Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report – Recommendations, Recommendation 76, p 112.

⁵ Victorian Government Response to the Royal Commission into institutional Responses to Child Sexual Abuse, Table of the full Victorian Government Response 2018.

⁶ Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW).

⁷ Crimes (Sentencing Procedure) Amendment Act 2022 (NSW).

⁸ Crimes (Sentencing Procedure) Act 1990 (NSW) s 21B(1).

⁹ Sentencing Act 1991 (Vic).

¹⁰ Charter of Human Rights and Responsibilities Act 2006 (Vic) s 7(2).

¹¹ Ibid s 27.

¹² Sentencing Amendment (Sentencing Practices for Child Sexual Offences) Bill 2024 s 4.

¹³ Sentencing Act 1991 (Vic).

Second reading

Evan MULHOLLAND (Northern Metropolitan) (10:12): I move:

That the bill be now read a second time.

The bill amends the Sentencing Act 1991 to ensure that no longer will persons convicted of historical child sexual offences be eligible to have suspended any term of imprisonment for such an offence.

It also clarifies that persons convicted of child sexual offences are to be sentenced in accordance with sentencing practice at the time of sentencing, not that in operation when the offence was committed or when the finding of guilt was made.

This bill seeks to close the legal loophole that has been used by paedophiles to avoid jail despite having been sentenced to terms of imprisonment.

This bill provides that jail means jail for those who commit sexual offences against children, no matter when those offences occurred.

At the initiative of the former Liberal and Nationals government, the Parliament of Victoria voted to abolish suspended sentences in 2013 via the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013. This legislation reflected the overwhelming will of the Victorian community that people sentenced to a term of imprisonment should actually serve out that term.

This reform did not prevent people convicted of a crime from being subject to a penalty other than imprisonment where appropriate. However, where imprisonment was determined by a court to be warranted, no part of such a term could be suspended.

Courts have subsequently applied this legislation in such a manner that offences committed before the abolition of suspended sentencing are still eligible to be suspended.

This is confirmed in a statement dated 14 March 2023 by the Office of Public Prosecutions, which states in part:

Suspended sentences have since been abolished in Victoria, but are still an available sentencing option for offences committed before their abolition.

This is clearly an anomaly and out of step with the community expectations that led to the abolition of suspended sentences.

Under current sentencing laws, convicted perpetrators of child sexual offences, some of the most serious crimes against some of the most vulnerable victims, are walking free with fully suspended sentences of imprisonment.

For the victim-survivors of such crimes, the use of suspended sentences for the benefit of the perpetrators adds bitter insult to grave injury.

This bill seeks to close that legal loophole and ensure that justice is served. In doing so it offers the hope of assisting the healing process for those who have shown the courage to come forward and call out historical child sexual abuse.

This bill is inspired by the courage of many victim-survivors of historical child sexual offending. I particularly pay tribute to Stewart Carter, who was abused as a 10-year-old by Gary Bloom, a schoolteacher.

Stewart summoned the courage to report Bloom’s offending after many years. Stewart endured the investigation process and endured the trial to see the offender convicted, only to then see Bloom walk free from court with a three-year sentence of imprisonment that was fully suspended.

Bloom did not see a single day in jail for his crime, not an hour of community service and not a dollar of a fine.

If that is justice under the law, then the law needs to change.

So it is for Stewart Carter, and for so many like him, that this bill must become law.

The 2017 federal Royal Commission into Institutional Responses to Child Sexual Abuse recommended that ‘State and territory governments should introduce legislation to provide that sentences for child sexual abuse offences should be set in accordance with the sentencing standards at the time of sentencing instead of at the time of the offending’.

The Victorian Labor government accepted this recommendation in July 2018 yet has failed to act, despite New South Wales implementing this reform in 2018.

Had this recommendation been acted on in Victoria, Stewart Carter would have seen justice and his perpetrator would be in jail today.

The failure of the Victorian Labor government to act to close this loophole – a loophole it agreed to close – is causing real harm.

Every day this loophole remains, more Victorian victim-survivors of historical child sexual offending are at risk of being let down.

Every day this loophole remains, more Victorian child sexual offenders are able to avoid justice.

This bill isn’t about politics, it is about justice for victims of child sexual abuse and making Victoria a safer place for every child.

I urge all members of this house to support this bill and close a loophole that is leading to gross injustice for victim-survivors of historical child sexual offending.

I commend the bill to the house.

Lee TARLAMIS (South-Eastern Metropolitan) (10:18): I move:

That debate on this bill be adjourned for two weeks.

Motion agreed to and debate adjourned for two weeks.