Northern Territory Second Reading Speeches Northern Territory Second Reading Speeches[Index] [Search] [Bill] [Help]
| Madam Speaker, I move that the bill be now read a second time. For honourable members’ attention it is a fairly long second reading speech, so if anybody needs a cup of tea, now is the time to do it. All amendments in this bill have arisen as a result of issues with the interpretation or application of the Sentencing Act as identified by members of the judiciary or legal profession. In response to those concerns, the operation of sections 64, 104A, and 107 of the Sentencing Act was thoroughly reviewed and investigated. The result of that process is the bill before the House today. The purpose of this bill is to: 1. amend section 64 of the Sentencing Act to ensure that every parolee is required to serve any unexpired term of imprisonment upon sentencing for a new offence, whether their parole has been revoked by a court or the Parole Board 3. amend section 104A of the Sentencing Act to alleviate inconsistency with the Racial Discrimination Act 1975 of the Commonwealth. 4. amend section 107 of the Sentencing Act to allow the Supreme Court to take into account summary offences when sentencing an offender for indictable offences, and 5. introduce new sections 388, 389, 390 and 391 into the Criminal Code to allow the Supreme Court to finalise and dispose of summary charges when sentencing an offender for indictable offences. Let me first address the amendment to section 64 of the Sentencing Act by explaining the history of the matter. When an offender is sentenced to a term of imprisonment a court may set a parole date which will be the earliest date the offender may be released on parole. Once released, if the offender’s parole is breached, their parole may be revoked and they will be required to serve the time remaining on their sentence in prison rather than in the community on parole. Section 64 of the Sentencing Act operates when an offender commits further offences on parole and requires the court, upon sentencing the offender to imprisonment for the new offences, to order the unserved or unexpired period of imprisonment commence at the term of imprisonment for the new offences. The Court of Criminal Appeal in Hankin v The Queen 25 NTLR 110 held that the wording of section 64 led to the conclusion that the provision only applied when the offender’s parole was revoked by a court upon sentence to imprisonment for new offences and did not apply if the Parole Board formally revoked the parole prior to the sentence. As a result of this technical anomaly, any offender whose parole had been revoked by the Parole Board would not be required to serve the unexpired period of imprisonment and will therefore receive unfair benefit. It is clear that the provisions of section 64 of the Sentencing Act were never intended to give an unfair advantage to offenders whose parole was cancelled by the Parole Board as opposed to a court sentencing the offender for new offences. The bill addresses this by providing that section 64 applies equally to every parolee. The bill repeals and replaces section 64 with an amended provision providing that every parolee who commits a new offence whilst on parole is required to serve any unexpired term of imprisonment upon sentencing to imprisonment for the new offence whether their parole has been cancelled or revoked by a court or the Parole Board. In accordance with the current section 64, the unexpired term of imprisonment is to be served at the expiration of the term of imprisonment for the new offence. It should be noted that the amended section 64 does not alter the current legislative position under section 14(1)(a) of the Parole of Prisoners Act and offenders are not to be credited for street time, with section 64(2) of the Sentencing Act supporting this position by providing the term of imprisonment remaining on the offenders sentence is to be calculated from their date of release on parole. During drafting of the bill it was identified that section 131 of the Youth Justice Act suffered from the same defects as section 64 of the Sentencing Act except it related to youth offenders. In order to ensure consistency regarding the terms of an offenders parole and consequences for re-offending while on parole, the bill also amends section 131 of the Youth Justice Act to mirror the amendments to section 64. I now turn to the amendment of Section 104A of the Sentencing Act which prescribes the manner in which a court can receive information regarding customary law or cultural practice. In accordance with section 5 of the Sentencing Act, a court must consider various principles when sentencing an offender including punishment, deterrence, the protection of the community, denunciation and rehabilitation, in addition to balancing matters specific to the offenders and the seriousness of the offending conduct. Without receiving information about an offender’s cultural background, including any customary law, a court cannot make an adequate assessment of the offender’s particular circumstances and any individual sentence delivered may not address the individual circumstances of the offending. Section 104 of the Sentencing Act outlines the general procedure for a court to receive information during the sentencing process for any offender without reference to a particular race. It does not provide any procedural requirements, nor any restriction on the information being provided, it simply allows the court to consider material ‘as it thinks fit’. Under this section the court may be provided with information in the form of character references, victim impact statements or informational input from other members of the community. There is no requirement this information be given on oath, in affidavit, or by form of statutory declaration. In contrast, section 104A of the Sentencing Act applies only to Aboriginal people and prevents the sentencing court from taking into account any aspect of Aboriginal customary law or the views of members of an Aboriginal community when sentencing an offender, unless certain procedural requirements are met. The procedural requirements are outlined in section 104A(2) and (3) of the Sentencing Act, and include the requirement any information regarding Aboriginal customary law or the views of members of an Aboriginal community is provided on oath, in affidavit, or by dint of statutory declaration. The North Australia Aboriginal Justice Agency raised concerns section 104A is racially discriminatory and, therefore, inconsistent with section 10 of the Racial Discrimination Act 1975 of the Commonwealth, as it singles out and disproportionately impacts upon Aboriginal people, as they are being precluded from fully participating in the sentencing process, unless the strict requirements of that section are met. Section 10 of the Racial Discrimination Act 1975 of the Commonwealth provides a state or territory law as invalid if the law does not allow the people of a particular race to enjoy a right to the same extent as people of a different race. The Solicitor-General provided the advice because of section 104A of the Sentencing Act restricts the rights of Aboriginal people compared to any other race when providing information to a court during the sentencing process, it is more likely that not inconsistent with the provisions of the Racial Discrimination Act 1975 of the Commonwealth. In light of this advice and following consultation with the North Australia Aboriginal Justice Agency, the bill proposes amendment to section 104A of the Sentencing Act to: (a) broaden the scope of the section so the procedural requirements apply to any form of customary law or cultural practice, rather than solely applying to Aboriginal customary law; and (b) provide the court with discretion regarding compliance with the procedural requirements, thereby giving the court the option of ordering parties to provide information in an evidentiary manner. This amendment is designed to alleviate any inconsistency with the Racial Discrimination Act of the Commonwealth by ensuring the court may receive information regarding customary law or cultural practice during the sentencing process without restriction. It is envisaged the court would exercise discretion to receive information on oath, in affidavit form, or by statutory declaration in appropriate cases, having regard to the difficulties in some remote communities with literacy, the time and resource constraints on agencies providing legal assistance, and the suitability of informal processes in the majority of cases. Previously, section 104A restricted the court from receiving information from Aboriginal community members, unless information was presented by a party to the proceeding and complied with the relevant procedural requirements. As a result, community members, for example, elders participating in a community court, could not present information to the court to be considered when sentencing an offender. The only way this information could be taken into account if one of the parties to the proceeding, either prosecution or defence, sought to present the information to the court. Amended section 104A still applies if a party seeks to present information from the community member; however, the provision no longer excludes community members who are not parties to the proceeding from presenting information to the court. The court may, therefore, receive information from persons who are not parties to the proceeding as it thinks fit under section 104, in the same way it would consider a character reference in any other sentence proceeding. The amendment to section 104A has been drafted to balance the importance of customary law and culture when a court is sentencing an offender with allowing the court to order information be provided in an evidentiary fashion, if deemed necessary. However, the amendments to section 104A should not be read so as to allow the court to take into account any form of customary law or cultural practice as a reason for exercising, justifying, authorising, requiring, lessening or aggravating the seriousness of the defendant’s actions contrary to section 16AA of the Crimes Act which was introduced by the Commonwealth’s Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act 2012. It is intended that information is to be received under section 104A in order to provide a context and explanation for an offender’s actions and to provide information about their role in the community, predisposition to offend, rehabilitation prospects and the impact of their offending on the community so that the court can make an assessment of the offender’s particular circumstances. I will now address the amendment to section 107 of the Sentencing Act, which concerns the jurisdiction of the Supreme Court to take into account summary charges when sentencing an offender on indictment. The need for amendment to section 107 was brought to the attention of the … attention of the Department of the Attorney-General by the Chief Justice and Justice Jenny Blokland (in her former capacity as Chief Magistrate). As former Chief Magistrate, she raised her concerns in the case of Police v Sullivan [2009] NTMC 035. In that case, the defendant had been sentenced in the Supreme Court for a serious sex offence which occurred in the context of a breach of domestic violence order. Although it was desirable for both charges to be disposed of by the Supreme Court in one comprehensive sentence, the court noted that the operation of section 107(6) of the Sentencing Act precluded the Supreme Court from taking into account the related summary charge of a breach of domestic violence order. The construction of section 107(1) and (3) clearly provides for the Supreme Court to take into account related summary offences when sentencing an offender on indictment. However section 107(6) specifically states that the court:
As the Supreme Court does not have jurisdiction to hear and determine summary charges, this clause prevents the Supreme Court taking into account summary charges when sentencing an offender on indictment. In the case of the Police v Sullivan, this meant that the breach of the domestic violence order charge remained before the Court of Summary Jurisdiction for finalisation. In order to address this issue, the former Chief Magistrate suggested that section 107(6) required ‘legislative adjustment’ to ensure that the Supreme Court could take related summary charges into account. In the Northern Territory Criminal Code, offences are divided into three categories: crimes; simple offences; and regulatory offences. A ‘crime’ is an offence which is punishable by a period of more than two years imprisonment and ordinarily proceeds on an indictment in the Supreme Court. Simple and regulatory offences are dealt with in the Court of Summary Jurisdiction. The Justices Act also provides a list of circumstances where less serious crimes, which would ordinarily be dealt with on indictment, may be finalised in the Court of Summary Jurisdiction. These offences are classified as ‘minor indictable offences’. When an offender is being sentenced on indictment, it is common practice for a sentencing schedule to be prepared, which, in addition to the indictable offence, refers to related summary offences, colloquially known as ‘back-up’ charges. The purpose of this schedule is to allow the sentencing judge to take into account summary charges at the time of sentencing for the indictable offence. This is a practice that takes place in other jurisdictions, however, it was ceased in the Northern Territory due to the problems with the interpretation of section 107. The bill before the House was prepared in consultation with the judiciary and amends section 107 of the Sentencing Act to address the issues with interpretation and the application of the provision. The application of the amended section 107 is very similar to the current section, expect current section 107(6) has been removed to cure the negative effect that it has on the operation of section 107(1) and (3). This amendment ensures that there is no jurisdictional impediment to the Supreme Court taking into account summary charges when sentencing an offender on indictment. Other minor amendments are also made by the bill to modernise the wording and construction of the provision. However, the intention of the original provision is retained. Amended section 107 applies to offences that it is alleged the offender has committed, whether or not they have been charged. Although current section 107 only applies to charged acts, the expansion of the provision to include uncharged acts was raised during consultation with the Chief Magistrate and is similar to interstate practices. Allowing the court to take into account uncharged acts will further the efficient administration of justice. There are many reasons why it may be beneficial for the court to take into account uncharged acts. For example, the defendant may have committed a large number of unlawful entry offences which would be extremely costly to investigate, particularise, charge, and present indictments for. The operation of section 107 in this situation would allow the prosecution to present an indictment for the most serious offences, and tender a schedule of listed offences which the court would take into account when sentencing the offender. Current section 107 is not confined, in application, to the Supreme Court, and can apply to any court including the Court of Summary Jurisdiction. In amending section 107, this position has not been altered and the provision may also be applied to the Court of Summary Jurisdiction. Consequently, if an offender wishes other offences, whether charged or uncharged, to be taken into account when sentencing for an offence in the Court of Summary Jurisdiction, they may rely on section 107. The new section 107(3A) will, however, clarify that the intention of the provision is for the Supreme Court to take into account summary charges, and is not for the Court of Summary Jurisdiction to take into account indictable offences that it would not otherwise be able to hear. It should, however, be noted that this provision will not impact on the operation of sections 120 and 121A of the Justices Act which allow the Court of Summary Jurisdiction to hear and determine minor indictable offences. During consultation with the judiciary, it became clear there was a need to confer jurisdiction on the Supreme Court to not only take summary charges into account, but also allow for summary charges to be finally disposed of when sentencing an offender on an indictment. The practical effect of the current situation is that an offender must be dealt with by the Supreme Court on an indictable charge, then returned to the Court of Summary Jurisdiction for sentencing on a later date in relation to the summary charges. Further, the Supreme Court is unable to consider all relevant conduct on sentencing and would, ultimately, be handing out a sentence which does not reflect the full gravity of the offender’s actions. The double handling of the offender sentencing in both the Supreme Court and Court of Summary Jurisdiction increases the cost to the community and delays in the administration of justice in the Northern Territory. Accordingly, in addition to amending section 107 to allow the Supreme Court to take summary charges into account when sentencing an offender on indictment, the bill creates brand new provisions in the Criminal Code to allow the Supreme Court to completely finalise and dispose of summary charges when sentencing an offender upon an indictment. Without these additional provisions, section 107 of the Sentencing Act will only allow the Supreme Court to take summary matters into account when sentencing an offender on indictment. No formal plea is entered and the offender is not convicted of the summary offences. However, under the new Criminal Code provisions, the offender is convicted and sentenced in the same way as if they had been dealt with by a magistrate. As a result, the defendant will only have to appear once, for one sentencing procedure instead of twice. The term ‘summary offence’ as it is used in relation to the provisions is intended to include offences generally known as summary offences, being simple and regulatory offences, which are punishable by less than two years imprisonment, in addition to any indictable offence that may be dealt with summarily - for example, minor indictable offences and certain offences under the Misuse of Drugs Act. When sentencing an offender for summary charges under the new provisions, the Supreme Court may make any orders in relation to the summary offence that the Court of Summary Jurisdiction would have made. This means that the Supreme Court may sentence an offender for summary charges but may not impose a penalty higher than that which the magistrate could impose if the matter were being dealt with in the Court of Summary Jurisdiction. It is intended the new provisions will not apply to all summary offences laid against the defendant, with the Supreme Court retaining discretion not to hear and determine a summary charge if it is not appropriate for it to do so. To give an idea, the following are examples of the scope of matters that may be subject to the new provisions: (a) an indictable assault which also constitutes a breach of a domestic violence order (b) dangerous driving causing death or serious harm committed whilst driving unlicensed, or (c) where an offender resists police during apprehension for an indictable offence. The application of the new provisions will allow the Supreme Court to consider and dispose of relevant summary charges when sentencing an offender on indictment in order to gain a clear understanding of the gravity of the offender’s actions and deliver a comprehensive sentence addressing all offending. Notwithstanding the proposed to amendment to section 107 of the Sentencing Act and the introduction of new provisions in the Criminal Code, the Supreme Court will retain its discretion to refuse to deal with summary charges if it does not deem it appropriate, thereby ensuring that the floodgates are not opened to allow any or all summary charges to be dealt with in the Supreme Court. The bill also includes transitional provisions for each of the new and amended sections. It is the intention of the bill that all amendments apply to any proceedings in which sentencing submissions have not yet been heard once the act commences. The application of the amended provisions is therefore retrospective with regard to the offence date as the provisions apply even if the offences are committed prior to the commencement of the act. In essence, this means the amended provisions are to apply even if the defendant formally entered a plea of guilty prior to the commencement of the Justice and Legislation and Amendment Act 2014 as long as sentencing submissions have not commenced. The Justice and Other Legislation Amendment Bill 2014 will alleviate a variety of issues with the interpretation and applications of section 64, 104A and 107 of the Sentencing Act, section 131 of the Youth Justice Act, and will provide for the full disposal of summary charges by the Supreme Court when sentencing an offender upon indictment, all of which will contribute to swift justice and, ultimately, reduce the costs to the community. I commend the bill to honourable members, and table a copy of the Explanatory Statement. Debate adjourned. |