Wednesday 21 June 2017
Hansard of the Legislative Council


 Second Reading


Mr FINCH (Rosevears) - Mr President, what an interesting debate to have.  These sorts of things are worthy of discussion in our House.  It underlines the situation that some people - particularly young people growing into adulthood - may suffer from.  It is tragic, as the member for Windermere expressed during our briefings.  It is not that these depraved actions need to be brought to heel - they do - but because some people, the abusers, have depraved mentalities.  They surface in our society, but we must be cognisant of the damage done to victims of abuse who are trying to get on with their lives.

We have seen situations where young people are assaulted.  Something that resonates with me was a reunion on the north-west coast of women in their mid-30s - and it was quite a large group of women - who came together comparing the effects of abuse and how they were living their lives.  They were all living damaged lives.  They were not able to relate to their partners and all were having problems with their own children.  All were living lives that had been discombobulated.  The factor linking them was that one person had perpetrated assaults on each of them.  Ostensibly they had gone on with trying to live their lives, but they were not able to do so because of the damage done to them.  That circumstance resonates with me when I think about these things.

I thank the Acting Leader for the briefing.  It provided terrific information.  For some members, it will reinforce arguments they want to put forward.  Other members may be like me ‑ I have not had a change of heart or mind about my stance on mandatory sentencing.

The briefing was very much appreciated.   I might say, yes, it will be the same argument that I put forward about mandatory sentencing before; I am not part of the bloc -

Members laughing.

Mr FINCH - I have not been influenced by the Labor Party - this is Kerry Finch with an attitude that I have expressed often enough in the Legislative Council. 

This bill is a serious attack on the discretionary power of a judge when dealing with an offender because it takes away any discretion of judges when imposing sentences for what are termed serious sexual offences committed against a person below the age of 17 years.  I believe that any attempt to restrict the discretion of a judge in the imposition of a sentence strikes at the heart of the proper administration of justice and is to be deplored.

It is interesting that the Government has also announced it is considering whether the power of judges to grant parole should be abolished or restricted.  The proper administration of justice relegates against any attempt to limit the options open to judges in determining an appropriate sentence in a particular circumstance.  Judges are trained to have regard or give weight to or take into account relevant matters, and to totally reject irrelevant matters when determining the appropriate punishment of an offender for an offence perpetrated by them and, additionally, the effect or likely future effect on the wellbeing of the victim.

The requirement by this bill that the judiciary must impose a fixed term of imprisonment is a serious attack on the independence of the judiciary.  Judges must be free of any undue influence on their ability to properly determine the proper punishment for an offence, whether it be against an adult or a child.  The bill by inclusion of the amendment to section 16C(4) of the Sentencing Act 1997 purports to enable the judge to take into account a personality or other type of disorder in the perpetrator when imposing a sentence.

I am not aware of any credible report that mandatory sentences have limited the incidence of crime.  If there is such a credible report, surely the minister should have, would have and could have referred to it in the second reading speech to justify the tabling of this bill.  He did not, could not and cannot. 

Judges are trained to interpret the laws passed by parliament.  As I said during our briefings, what plays on my mind is the opinion of the members of the community and how they feel about the sentences handed down.  As I suggested during the briefing, they are much driven by the media interpretations of the proceedings.  They do not have all the facts at hand; they do not have the facts of the matter.  They just have media grabs which in some ways incite general public opinions. 

People can also be emotionally driven rather than making a cool, calm, collected assessment of relevant or irrelevant facts presented in a court of law.  The judge is there to make that assessment.  Of course the judge has to accept the verdict of a jury as well, and jury members are the representatives of the community who listen to the evidence and then make a judgment.  The judge then has to determine the appropriate sentence after hearing the submissions - all that evidence from the Crown, the defence - and then consider the relevant mental or other reports as to the condition of the accused person.  There are also reports relating to the current or future effects of the crime on the victim, or the assessment historically of evidence that suggests how a victim might be impacted as they try to get on with their lives, and how the crime might rebound on them later on in life.

Judges, unlike politicians, are not dependent on the approbation of the public for their continued tenure of office.  The attempt by this bill to limit the discretion of the judiciary is a serious attack on the freedom of the judiciary to properly administer the law.  That is my continued belief, even though we had some very strong evidence today about mandatory sentences.  We are talking here about mandatory sentencing.  We heard about speeding fines, car fines, fishing fines - these are mandatory fines, not mandatory sentences.  We are talking about jailing people, which is a far more serious and concerning action to take.  It is not just about fines.  I believe mandatory sentencing, which is about sending people to jail, has no place in the proper administration of justice.