This speech was delivered on  20 March 2013 in the NSW Upper House. You can read the full debate online here.

CRIMES (SENTENCING PROCEDURE) AMENDMENT (PROVISIONAL SENTENCING FOR CHILDREN) BILL 2013

Mr DAVID SHOEBRIDGE [8.28 p.m.]: I lead on behalf of The Greens in debate on the Crimes (Sentencing Procedure) Amendment (Provisional Sentencing for Children) Bill 2013, which we support. The bill is proposing a new scheme to deal with the sentencing of child offenders who have committed the offence of murder. The proposal is to impose an initial sentence as a provisional sentence in certain circumstances. Those circumstances are:

        (a) the offender was less than 16 years of age when the offence was committed, and

        (b) the offender is less than 18 years of age when the provisional sentence is imposed, and

        (c) the sentence proposed to be imposed for the offence is or includes a term of imprisonment, and

        (d) the court is of the opinion that it is not appropriate to impose an ordinary sentence on the offender because the information presently available does not permit a satisfactory assessment of whether the offender has or is likely to develop a serious personality or psychiatric disorder, or a serious cognitive impairment, such that the court cannot satisfactorily assess either or both of the following matters:

          (i) whether the offender is likely to re-offend,

          (ii) the offender’s prospects of rehabilitation.

In coming to that determination it is proposed that the court will have regard to the proposed case plan for the offender and the provisional sentence is, under this bill, proposed to be subject to periodic review and redetermination. Effectively, it is an interim sentence that the court can impose on a juvenile offender who has been convicted of the offence of murder. Any court that imposes that provisional sentence is then to conduct progress reviews of the offender’s case. This bill proposes that those reviews be at least once every two years. There are compelling reasons to have more regular reviews than two years. I foreshadow that I will be moving some amendments to limit the period to six months. The purpose of those reviews is to decide whether it is appropriate to impose a final sentence on the offender at that time.

The court may, after conducting a progress review, impose a final sentence on the offender. That would be in circumstances where the court was of the opinion that it had sufficient information to determine the final rehabilitation prospects and fully understand the nature of the offender’s personality. If the court is not of that view the court can decline to impose a final sentence on the offender. In any event, it is proposed that the final sentence must be imposed no later than five years after the date the provisional sentence is imposed and at least one year before the end of the non-parole period for the provisional sentence. In supporting this bill The Greens note that any term of imprisonment imposed under the final sentence is not to exceed the term of imprisonment that was imposed under the provisional sentence. The sentence can be reduced in light of further information but it cannot be increased.

This bill comes about, as the Hon. David Clarke noted, following the disturbing case of R v SLD in which His Honour Justice Wood, the Chief Justice of Common Law at the time, made a number of comments that were later the subject of research by the NSW Sentencing Council. It was a truly disturbing case in which a 13-year-old boy murdered a toddler. Justice Wood stated during his remarks on sentence, “How can you determine a final sentence on a 14 year old? You do not know what his personality will be like when he is an adult so you effectively have to guess.” This child may respond to rehabilitation, may develop on a particular pattern, or it may become apparent that the child’s personality is on a deeply disturbing trend, which would confirm the need for a lengthy sentence. The young offender might respond to rehabilitation and mature and have changes in his or her personality which would suggest that a lesser sentence should be imposed because that person would be less of a danger to the community.

Faced with that problem and with the limited toolkit that he had at the time His Honour had to impose a final sentence and he felt very uncomfortable having to impose that final sentence. The Sentencing Council has grappled with that dilemma, which is why this amendment is now before the Parliament. If this law had been in place His Honour could have imposed a provisional sentence and if it was reviewed later—no less than five years after—when the offender was 18 years of age the court could have considered whether the provisional sentence was appropriate. The court may well have accepted that the provisional sentence was appropriate and the offender should spend a further five years in jail or it may have had that suite of further information that may have led to a lesser sentence.

It is a humane way of dealing with the offence of murder for such young juveniles. It is important law reform. There are a couple of small matters which The Greens say could be improved. The first is to make more regular reviews and the second is to allow the court to make certain recommendations on rehabilitation. Finally, because of the emotive and difficult nature of these new provisions, it would be appropriate to have a review by the Ombudsman. I will address those matters briefly during the Committee stage. I commend the bill to the House. I congratulate the Government on introducing it.

Mr DAVID SHOEBRIDGE [8.42 p.m.]: I move The Greens amendment No. 1 on sheet C2013-020A:

        No. 1 Page 4, schedule 1 [1]. Insert after line 26:

        (3) A court that imposes a provisional sentence on an offender may recommend that specific rehabilitative or other programs and services be included in the offender’s case plan.

This amendment seeks to insert a new subsection (3) into proposed section 60C, which relates to case plans. Proposed section 60C allows a court that is considering imposing a provisional sentence on an offender to request a person responsible for the detention of the offender to provide information on the case plan or proposed case plan for the offender. The court must have regard to any such case plan in addition to such other relevant evidence in deciding whether to impose a provisional sentence.This amendment would give an additional power to the court. A court that imposes a provisional sentence on an offender may recommend that specific rehabilitation or other programs and services are included in the offender’s case plan. The purpose of that is to allow the court, after hearing evidence about the offender, to make recommendations about rehabilitative or other programs that would be of benefit to the juvenile offender. It is not intended that it be a compulsion power, but one would expect that the court’s recommendations would be influential with any detention authority, whether it is the Department of Juvenile Justice or Corrective Services. For that reason, and with the support of the Law Society’s Juvenile Justice Committee and its Criminal Law Committee, The Greens commend the amendment to the Committee.

Question—That The Greens amendment No. 1 [C2013-020A] be agreed to—put and resolved in the negative.

The Greens amendment No. 1 [C2013-020A] negatived.

Mr DAVID SHOEBRIDGE [8.45 p.m.]: I move The Greens amendment No. 2 on sheet C2013-020A:

      No. 2 Page 5, schedule 1 [1], line 11. Omit “2 years”. Insert instead “6 months”.

This amendment comes from the recommendations of the Law Society’s Juvenile Justice Committee and Criminal Law Committee. The amendment seeks to reduce the maximum period in which a progress review is to be conducted from two years after the provisional sentence is imposed to at least every six months after the provisional sentence is imposed. At first blush it might be thought that six months is an insufficient time in which to carry out a review, but the rationale for the sixmonthly period is twofold. First, juveniles, particularly in their mid-teens, develop quickly; they can go through quite significant changes within six months. Therefore, as a matter of sensible practice, a sixmonth period would be appropriate for the review. Secondly, it is important that as far as possible there be consistency in the laws. Currently, for forensic patients, there is already in place a requirement for reviews by the Mental Health Review Tribunal at least every six months. It makes sense for there to be consistency in reviews of these juvenile offenders who are the subject of a provisional sentence. For those reasons The Greens commend the amendment to the Committee.

Mr DAVID SHOEBRIDGE [8.52 p.m.]: If there is to be a review and public servants paid for by taxpayers are to undertake the review The Greens believe—and I think most objective observers would agree—that it is best to have someone independent of government undertake that review. The current proposal is for the Minister through his or her department to review this under schedule 2 to the bill. But if we are to spend the time and pay people from the public purse to undertake the review let us have it done by someone genuinely independent. Let us have it done by the Ombudsman rather than a member of the executive who may well be the subject of criticism in a review. Perhaps the Ombudsman will review it and say it is all lovely and all perfect, but surely that kind of objectivity is important. It is for the purpose of getting that objectivity that The Greens move the amendment.