Sentencing Legislation Amendment Bill 2016: Changes to WA Sentencing Options
Monday 26 September 2016 @ 9.19 a.m. | Crime | Judiciary, Legal Profession & Procedure
On 14 September 2016, the WA Legislative Council introduced the Sentencing Legislation Amendment Bill 2016 (Bill No. 205 of 2016) (the Bill). According to the Attorney-General, the Hon Michael Mischin, in his Second Reading Speech, the Bill is designed to:
"reflect the Government’s approach to dealing with offenders – a tougher approach towards the small number of offenders who commit serious violent offences, particularly in domestic or relationship circumstances, while at the same time offering the courts alternative sentencing dispositions for persons convicted of lower level offences."
Background to Sentencing Amendments
In particular, this Bill arises from the statutory review of the Sentencing Act 1995 (WA), whose comments have been directed to the State Government’s commitment to reduce the level of over-representation of Aboriginal people in the criminal justice system. This overrepresentation is most marked in the mid- to lower-range of offending, where some 88% of offenders in the Western Australian Magistrate's Courts receive a fine. The current concern for the State Government is that in many cases this leads to a cycle of offending and convictions; fines; inability or unwillingness to pay the fines; entry into the fines enforcement system; and, potentially, imprisonment.
Amendments Contained in the Bill
Some of the amendments, according to the Explanatory Memorandum, contained in the Bill are as follows:
- Part 3 - amendments to sentencing regarding parole and post-sentencing supervision, particularly introduction of new post-sentencing supervision orders. In particular, this part responds to community concerns about serious violent offenders, domestic violence offenders and serial arsonists;
- Part 4, Divisions 3-6 - amendments to sentencing processes and the range of options available to courts. In particular, these amendments respond to community concerns about low-level offenders and the relevance of victim impact statements in sentencing; and
- Part 2 - amendments about long term prisoners resulting from two Court of Appeal decisions. In particular, the amendments served to clarify the status with regard to re-socialisation programmes and release considerations; as well as particular appeals on questions of fact in regards to offences committed in circumstances of aggravation.
Community Reaction to Bill
The Law Society of Western Australia and the Australian Bar Association (ABA) have welcomed the Bill, with Law Society of WA president Elizabeth Needham adding that giving more options to the bench and moving away from restrictive mandatory sentencing regimes is a promising way forward:
“The judiciary must be allowed the discretion to apply sentences that are proportionate to the offences committed, taking into account the circumstances of the offender. Mandatory sentencing denies the judiciary this discretion and often results in draconian sentences. Legislation that provides the judiciary with more sentencing options should therefore be embraced.”
ABA president Patrick O’Sullivan QC has also welcomed the WA government's announcement. He said the issue of fine default imprisonment and its impact on the state’s Indigenous incarceration rates continues to be of great concern:
“In Australia, Indigenous children and teenagers are 24 times more likely to be incarcerated than their non-Indigenous peers. However, in Western Australia, young Indigenous people are 52 times more likely to end up behind bars. The over-representation of Indigenous people in incarceration is a national disgrace. It is time to take action that addresses the problem and delivers better justice outcomes for Indigenous Australians and the country as a whole."
The Bill is awaiting Second Reading Debate in the Legislative Council.
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Sources:
Sentencing Legislation Amendment Bill 2016 (205 of 2016) [WA] and secondary materials as reproduced on TimeBase LawOne
