New VIC Act Strengthens Minimum Sentences for Offences against Emergency Workers

Thursday 9 July 2020 @ 1.49 p.m. | Crime | Legal Research

On 30 June, the Sentencing Amendment (Emergency Worker Harm) Act 2020 (Vic) (“the Amending Act”) was assented to as Act 23 of 2020. In the Second Reading Speech for the Bill, Attorney-General Hon. Jill Hennessy stated:

"This Bill will strengthen sentencing requirements for injury offences committed against emergency workers by further clarifying the intended scope of the laws and their narrow exceptions, to better ensure Parliament’s intent is reflected in sentencing practice, and ultimately to better protect our emergency workers from harm as they go about their duties."

The amendments contained within the Amending Act primarily amend the Sentencing Act 1991 (Vic) (“Sentencing Act”), however several amendments are made to other Acts.

Sentencing Guidelines

The Amending Act ensures that where a court establishes the existence of a “special reason”, when sentencing the offender for an offence where a statutory minimum sentence applies, the court must have regard to all the considerations set out in sections 10A(3)(aa) to (b) of the Sentencing Act.

Relevance of Self-Induced Intoxication

Prior to the Amending Act, if at the time of the offence, the offender had impaired mental functioning that was caused solely by self-induced intoxication, the impaired mental functioning could not be used to establish the existence of a special reason. A special reason may provide justification for not imposing applicable statutory minimum sentences. The Amending Act lowers this threshold to the question of whether the impaired mental function was caused substantially by self-induced intoxication.

Reverse Onus for Exception to Mandatory Minimum Sentence

Section 10AA of the Sentencing Act lists provisions relating to custodial sentences for certain offences against emergency workers, custodial officers and youth justice custodial workers on duty. Section 10AA provides statutory minimum sentences for such offences. However there are exceptions, one of which is that if the offender was involved in the commission of the offence through intentional assistance, encouragement or direction, the minimum sentences do not apply. The Amending Act establishes a second condition to allowing an offender to fall within this exception by requiring the offender to additionally prove that their involvement was minor. The Explanatory Statement notes that “minor involvement” can include but is not limited to “situations where someone encourages another to resist arrest during an affray or encourages from the sidelines during a group attack”.

Definition of Emergency Worker

The Amending Act clarifies that under the Sentencing Act, emergency workers who are employed or engaged by another State or a Territory, or by the Commonwealth, but are performing duties within Victoria, fall within the definition of emergency worker.

Prosecution

The Amending Act also amends the Criminal Procedure Act 2009 (Vic) such that all offences committed against emergency workers, custodial officers, or youth justice custodial officers, to which a statutory minimum sentence applies, are to be prosecuted by the Office of Public Prosecutions in the County Court or Supreme Court. In the Second Reading Speech, the Attorney-General stated that the purpose of the amendment was to recognise the complexity of the law and high public interest in the Amending Act’s application.

Review of Operation

The Amending Act also includes an amendment to the Sentencing Act concerning a review by the Minister of the effectiveness of the amendments made under the Amending Act. The review is to take place as soon as practicable after 12 months of the Amending Act’s operation. The Amending Act also requires the Minister to report the outcome of the review to each House of Parliament.

Response to the Amending Act

In an article published by the Herald Sun, the Amending Act was described as the government’s response to a recent case that incited community outrage and criticism from paramedics and police unions when the offender received an 18-month Community Correction Order after “attacking the paramedics” while under the influence of a “cocktail of drugs”. In a June Media Release, the Attorney-General stated that it is “simply unacceptable that the people who dedicate their lives to keeping us safe could be intentionally injured – or worse – just by doing their job.” The Attorney-General stated that the Amending Act ensures “that a departure from the statutory minimum sentence is reserved for the most exceptional circumstances.”

However, advocacy groups such as Liberty Victoria have opposed the Amending Act stating that legislation in response to individual court cases that have received adverse attention is “not a considered or responsible way of enacting legislation.” The Law Institute of Victoria echoed similar sentiments when the sentencing remarks pertaining to the contentious case were first released to the public. In a Media Release, the Law Institute’s criminal law section co-chair Mel Walker stated “mandatory sentences are a blunt tool which are not as effective as addressing the causes of the offending”.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.