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Sentencing Amendment (Emergency
Workers) Bill 2014
Amended Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill, which are to--
· amend the Sentencing Act 1991 and the Crimes Act
1958 to provide a custodial sentence for certain violent
offences committed against emergency workers;
· amend the Crimes Act 1958 to fix a baseline sentence
for murder of an emergency worker;
· amend the Crimes Act 1958 and the Summary
Offences Act 1966 to expand certain existing assault
offences to include emergency workers;
· amend the Sentencing Act 1991 in relation to
community correction orders and to expand the list of
arson offences in Schedule 1;
· amend the Children, Youth and Families Act 2005 in
relation to the release on parole of persons in respect of
whom a youth justice centre order has been made under
section 10AA(2) of the Sentencing Act 1991.
Clause 2 sets out the commencement arrangements for the Bill.
Subclause (1) operates subject to subclause (2), and provides that
the Act will commence on a day or days to be proclaimed.
Subclause (2) provides that any provisions referred to in
subclause (1) that do not come into operation before 1 July 2015
will commence on that day.
571521 1 BILL LA AMENDED 25/8/2014
PART 2--MINIMUM SENTENCES FOR VIOLENT
OFFENCES AGAINST EMERGENCY WORKERS
Part 2 of the Bill creates a new regime for the sentencing of offenders
convicted of certain violent offences committed against emergency workers
on duty.
Clause 3 amends section 10(2) of the Sentencing Act 1991 to provide that
custodial sentences required to be imposed by section 10(1) for
offences against sections 15A and 15B of the Crimes Act 1958
do not apply to an offender who commits certain offences against
an emergency worker who is on duty. A person who commits an
offence described in sections 15A and 15B of the Crimes Act
1958 against an emergency worker on duty is subject to new
section 10AA.
Clause 4 inserts new section 10AA into the Sentencing Act 1991.
This section provides that offenders sentenced for certain
offences against emergency workers on duty are liable to a
custodial sentence.
Requirement to impose a sentence of imprisonment and fix a
specified non-parole period for certain offences
New section 10AA(1) provides that, subject to subsection (2), in
sentencing such an offender for an offence specified in column 1
of Table 1 in that section, the court must impose a term of
imprisonment and fix a non-parole period of not less than the
period specified in column 2 of Table 1.
For example, if a court sentences an offender for an offence
contrary to section 15A of the Crimes Act 1958 (causing serious
injury intentionally in circumstances of gross violence), and that
offence is committed against an emergency worker on duty, the
court must fix a non-parole period of at least five years.
Requirement to impose a youth justice centre order for young
offenders in certain circumstances
Subsection (2) provides that in the circumstances described in
subsection (3) in sentencing a young offender for an offence
specified in column 1 of Table 2 in that section, and if the court
decides not to impose a sentence of imprisonment and fix a non-
parole period in accordance with subsection (1), the court must
make a youth justice centre order for not less than the term
specified in column 2 of Table 2.
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The term young offender is defined in section 3 of the
Sentencing Act 1991.
The circumstances set out in subsection (3) are that the court--
· has not made a finding under section 10A that a special
reason exists; and
· has received a pre-sentence report and believes;
· that there are reasonable prospects for the
rehabilitation of the offender; or
· that the young offender is particularly
impressionable, immature or likely to be
subjected to undesirable influences in an adult
prison.
Special reasons
The court need not impose a sentence in accordance with the
table in new section 10AA(1) if it finds that a "special reason"
not to do so exists within the meaning of that term in section 10A
of the Act. This includes, for example, where an offender suffers
from impaired mental functioning that is causally linked to the
offending and substantially reduces his or her culpability.
New section 10A(2A) inserted by Clause 5 introduces special
reasons that only apply to young offenders aged 18 and up to 21
who are liable to a six month term of imprisonment if found
guilty of intentionally or recklessly causing injury to an
emergency worker on duty. This is discussed below.
If the court finds that a special reason exists, it does not have to
impose the statutory sentence and has full sentencing discretion
to impose any available sentence.
Requirement to impose a sentence of imprisonment for causing
injury offences
New section 10AA(4) provides a minimum six month term of
imprisonment for offences against section 18 of the Crimes Act
1958 committed against emergency workers on duty (causing
injury intentionally or recklessly), subject to the "special reasons"
exemption in section 10A. This prescribed minimum sentence is
not included in Table 1 in section 10AA(1) as it specifies a
minimum term of imprisonment, rather than a minimum non-
parole period. Pursuant to section 11 of the Sentencing Act
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1991 courts do not fix a non-parole period in respect of sentences
of imprisonment less than 12 months.
When does the statutory sentence apply?
New section 10AA(5) states that subsections (1), (2) and (4) of
section 10AA apply only if the court is satisfied, beyond
reasonable doubt, both that--
· the victim of an offence was an emergency worker on
duty; and
· at the time of carrying out the conduct, the offender
either knew, or was reckless as to whether, the victim
was an emergency worker.
Whether these circumstances are made out is a question for the
court upon sentencing. This provision is not intended to create
any new offences.
Exceptions from the requirement to impose a sentence of
imprisonment or youth justice centre order
New section 10AA(6) states that the minimum sentences
otherwise provided for in section 10AA do not apply to an
offender who aids, abets, counsels or procures the commission of
the offence, or who is under 18 years of age at the time of the
commission of the offence.
New section 10AA(8) clarifies that Subdivision (4) of Part 3
(except section 32(1), (2), (2A) and (2B)) applies to a youth
justice centre order made under subsection (2).
Definitions
New section 10AA(8) is a definitional section which defines the
following terms used within section 10AA.
The term emergency treatment means unplanned or unexpected
treatment that may be necessary, as a matter of urgency, to save
the patient's life, to prevent damage to the patient's health, or to
prevent the patient from suffering or continuing to suffer pain or
distress. The definition covers unplanned or unexpected
treatment of the type regularly administered in hospitals, and is
not necessarily restricted to treatment administered in an
emergency ward.
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The term emergency worker is defined to include a broad range
of persons who carry out emergency work. It includes persons
employed or engaged to provide, or support the provision of,
emergency treatment to patients in a hospital, together with a
number of other persons holding positions within a particular
body, or under an Act. These include, among others, police
officers and protective services officers within the meaning of
the Victoria Police Act 2013 and operational staff members
within the meaning of the Ambulance Services Act 1986.
The definition also provides flexibility at subclauses (k) and (l).
Subclause (k) refers to a volunteer emergency worker within the
meaning of the Emergency Management Act 1986. One
example of a volunteer emergency worker within the meaning of
that Act is a lifesaver who is acting at the request of Life Saving
Victoria, for example by engaging in professional or volunteer
beach based patrolling. Subclause (l) covers a range of persons
who, although not a member of a particular organisation, may be
required to respond to an emergency.
The term hospital is defined to mean--
· a public hospital or denominational hospital within the
meaning of the Health Services Act 1988; or
· a private health care facility within the meaning of the
Private Health Care Facilities Act 2014.
New section 10AA(6) specifies when an emergency worker is on
duty. As noted in new section 10AA(3) the statutory sentences
set out in sections 10AA(1) and (2) only apply if at the time the
offender committed the offence, the victim was an emergency
worker on duty. This definition ensures that the statutory
sentences apply to offenders who injure or seriously injure
emergency workers who are performing their duties at the time of
the conduct causing injury or serious injury. Subclause (a) of the
definition, which applies to police officers and protective services
officers, provides that those officers are taken to be on duty if
they are performing any duty or exercising any power as such an
officer.
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Clause 5 makes consequential and other amendments to section 10A of the
Sentencing Act 1991 to--
· amend the heading to section 10A so that it includes a
reference to "violent offences against emergency
workers";
· ensure that section 10A(2), which lists "special reasons"
for not imposing a custodial sentence or a prescribed
minimum non-parole period, applies in relation to
section 10AA;
· provide that in considering whether there are
"substantial and compelling reasons" that justify a
finding of "special reasons", a court must have regard to
Parliament's intention that a sentence of imprisonment
and a non-parole period fixed in accordance with
section 10AA(1) or 10AA(2) should be imposed for the
specified offences.
These provisions ensure that these reforms operate consistently
with the reforms introduced by the Crimes Amendment (Gross
Violence Offences) Act 2013.
In addition, clause 5 inserts new section 10A(2A) which sets out
new special reasons that only apply to offences against section 18
committed by a young offender against an emergency worker on
duty. These special reasons are that the court believes the
offender has reasonable prospects of rehabilitation or is
particularly impressionable, immature or likely to be subjected
to undesirable influences in an adult prison.
Clause 6 inserts new section 154 into the Sentencing Act 1991 which is a
transitional provision. The provision states that the amendments
made to the Sentencing Act 1991 by the Bill to set minimum
sentences for violent offences against emergency workers on
duty apply prospectively to the sentencing of an offender for an
offence committed on or after commencement.
Subclause (2) states that, for the purposes of new section 153(1),
if an offence is alleged to have been committed between two
dates, one before and one after the date of commencement, it is
taken to be alleged to have been committed prior to
commencement.
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Subclause (3) provides that the amendments made to the Act by
Part 5 apply to the sentencing of an offender on or after the
commencement of Part 5, irrespective of when the offence was
committed or the finding of guilt was made.
Clause 7 clarifies that a reference in section 5(2AAB)(b) of the
Sentencing Act 1991 to section 10 means the section 10 that
expired on 22 April 1997.
Clause 8 inserts legislative notes into sections 15A, 15B, 16 to 18 of the
Crimes Act 1958. Those provisions create a number of offences
involving violence and the infliction of injury and serious injury.
The legislative notes draw attention to the fact that new
section 10AA prescribes that a custodial term, and a minimum
non-parole period in accordance with the section, must be
imposed if the victim is an emergency worker on duty, unless
a special reason exists. They also note that in relation to
sections 16 and 17, a youth justice centre order may be imposed
if certain criteria are met.
Clause 9 amends section 458 of the Children, Youth and Families Act
2005 to clarify that the Youth Parole Board must not release on
parole a person who is subject to a statutory sentence under
section 10AA(1A) of the Sentencing Act 1991 before the expiry
of the minimum term applicable under that section.
Clause 10 amends section 469(4) of the Children, Youth and Families
Act 2005 to note that that section operates subject to new
section 469(4A).
Clause 10 also inserts new section 469(4A) into the Children,
Youth and Families Act 2005 which clarifies that a person in
respect of whom a youth justice centre order has been made in
accordance with section 10AA(2) of the Sentencing Act 1991
who is transferred to a prison under section 467 or 468 becomes,
on transfer, subject to the jurisdiction of the Adult Parole Board
as if the minimum term of that order applicable under section
10AA(2) of that Act had been a non-parole period.
These amendments seek to ensure that the relevant statutory
minimum sentence is served regardless of whether the offender
is serving the sentence in adult prison or youth detention, and is
transferred between those locations.
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PART 3--BASELINE SENTENCE FOR MURDER OF
EMERGENCY WORKER ON DUTY
Part 3 of the Bill prescribes a baseline sentence of 30 years' imprisonment for
the murder of an emergency worker on duty.
Clause 11 substitutes a new section 3(2) into the Crimes Act. The new
section sets a baseline sentence of 30 years' imprisonment for
the murder of an emergency worker on duty.
The baseline sentence applies if the court, in determining
sentence, is satisfied beyond reasonable doubt that--
· the person murdered was an emergency worker on duty;
and
· at the time of carrying out the acts that caused the
victim's death the offender knew or was reckless as to
whether that person was an emergency worker.
Subclause (3) provides that the phrases "emergency worker on
duty" and "emergency worker" have the same meaning as in
section 10AA of the Sentencing Act 1991.
It is intended that the baseline sentence will, over time, become
the median sentence for murder of an emergency worker on duty
for offences committed after the commencement date.
Sentencing courts must have regard to the baseline sentence in
accordance with section 5A of the Sentencing Act 1991, and fix
a non-parole period in accordance with section 11A of that Act,
where applicable.
This section does not create a new offence, but specifies certain
aggravating features of murder which will attract a longer
baseline sentence. The question whether those aggravating
factors are present will be decided by the sentencing judge.
The existing baseline of 25 years' imprisonment for murder is
retained for all other cases.
Clause 12 inserts new section 623 into the Crimes Act 1958 which sets out
transitional arrangements for the amendments introduced by
clause 9. Those amendments apply only to offences committed
after their commencement. Subclause (2) provides that if an
offence is alleged to have been committed between two dates,
one before and one after the date of commencement, it is taken to
have been committed prior to commencement.
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PART 4--ASSAULT OFFENCES AGAINST EMERGENCY
WORKERS ON DUTY
Part 4 of the Bill enacts new summary assault offences against emergency
workers on duty. It also amends section 31 of the Crimes Act 1958 to
extend the existing indictable offence of assaulting a police officer or
protective services officer to all categories of person captured by the
definition of emergency worker.
Clause 13 substitutes a new section 31(1)(b) into the Crimes Act 1958.
The new section provides that a person who assaults or threatens
to assault, resists or intentionally obstructs an emergency worker
on duty is guilty of an indictable offence. The offender must
know or be reckless as to whether the victim is an "emergency
worker". It does not need to be proven that the offender knew or
was reckless as to whether the victim was an "emergency worker
on duty".
Section 31(1)(ba) of the Crimes Act 1958 makes it an offence
to assault or threaten to assault, resist or intentionally obstruct
a person lawfully assisting an emergency worker on duty.
The offender must know or be reckless as to whether the person
is an emergency worker.
Subclause (2) provides that the phrases "emergency worker on
duty" and "emergency worker" have the same meaning as in
section 10AA of the Sentencing Act 1991.
The intention of these amendments is to broaden the existing
provisions so that they apply to assaults on emergency workers
on duty.
Clause 14 substitutes a new section 51 of the Summary Offences Act
1966.
New section 51(2) will create the summary offence of assaulting,
resisting, obstructing, hindering or delaying an emergency
worker on duty. This offence is punishable by 60 penalty units or
imprisonment for six months. The phrases "emergency worker
on duty" and "emergency worker" have the same meaning as in
section 10AA of the Sentencing Act 1991.
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New section 51(3) creates the summary offence of resisting,
obstructing, hindering or delaying a member of staff of a local
authority in the execution of the member's duty under the
Summary Offences Act 1966. The offence is to be punishable
by 60 penalty units or imprisonment for 6 months.
New section 51(4) creates the summary offence of assaulting,
resisting, obstructing, hindering or delaying a person lawfully
assisting an emergency worker performing on duty. This offence
is punishable by 60 penalty units or imprisonment for six months.
New section 51(5) provides that in addition to imposing a penalty
for any of the offences outlined above, the court may award a
sum sufficient to cover any damage which a victim of any of the
above offences has sustained by the assault, resistance,
obstruction, hindrance or delay. By subsection (6), any sum so
awarded may be recovered in the same manner as the penalty.
As above, the intention of these amendments is to broaden the
existing provisions so that they apply to assaults on emergency
workers on duty.
Clause 15 amends section 52 of the Summary Offences Act 1966 to
remove provisions which are now to be dealt with under new
sections 51(2) to (4), and to make a consequential amendment to
the heading of that section. The offence of besetting premises
will remain.
PART 5--COMMUNITY CORRECTION ORDERS
Part 5 of the Act amends the Sentencing Act 1991 to provide direction as to
when a community correction order may be imposed, in the exercise of the
sentencing judge's discretion, and to amend or remove existing restrictions on
the power to combine a sentence of imprisonment with a community
correction order.
Clause 16 inserts new section 5(4C) into the Sentencing Act 1991.
This section provides that a court must not impose a sentence that
involves the confinement of the offender unless it considers that
the purpose or purposes for which the sentence is imposed cannot
be achieved by a community correction order to which one or
more of the conditions referred to in sections 48(F) to (J) are
attached. These are the conditions of--
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· non-association;
· residence restriction or exclusion;
· place or area restriction or exclusion;
· curfew;
· alcohol exclusion.
The purpose of this provision is to highlight that a community
correction order can have a punitive effect and may be an
appropriate sentence to address serious offending. It is not
intended to suggest that a community correction order without
the above listed conditions may not be punitive, or that the sole
purpose of attaching the above conditions is to punish the
offender.
Clause 17 inserts new section 36(2) into the Sentencing Act 1991.
This section provides that a community correction order may
be an appropriate sentence where, prior to the abolition of
suspended sentences, the court may have imposed a sentence of
imprisonment and then suspended that sentence in whole or in
part. This section does not limit the sentencing judge's discretion
in determining whether to impose a community correction order.
Neither does it require a court to consider whether or not it would
have imposed a suspended sentence prior to imposing a
community correction order.
Clause 18 amends section 44 of the Sentencing Act 1991 which concerns
sentencing orders combining a sentence of imprisonment with a
community correction order.
New section 44(1) provides that when sentencing an offender in
respect of one, or more than one, offence (other than an "arson
offence"), a court may make a community correction order in
addition to imposing a sentence of imprisonment only if the sum
of all terms of imprisonment to be served (after deduction of
pre-sentence detention under section 18) is two years or less.
Given the operation of section 11 of the Sentencing Act 1991,
this means that an offender may receive a sentence of
imprisonment in respect of which a non-parole period has been
fixed, and then be required to complete a community correction
order. Under section 11(1), if a court sentences a person to be
imprisoned for a term of two years or more, it court must fix a
non-parole period unless it considers that the nature of the
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offence or the past history of the offender make the fixing of such
a period inappropriate. If the term of imprisonment is less than
two years but not less than 12 months, the court may fix a non-
parole period. These amendments do not affect the courts'
discretion as to whether a non-parole period should be fixed in
these circumstances.
New subsection (1A) deals with combined orders for
imprisonment and a community correction order when sentencing
an offender for one, or more than one, arson offence, as that term
is defined in clause 5 of Schedule 1 of the Sentencing Act 1991.
In that case, a court may make a community correction order in
addition to imposing any sentence of imprisonment (subject to
the maximum penalty for the offence).
As noted above, it is possible for an offender to be sentenced to a
term of imprisonment that has a non-parole period. Subclause (2)
clarifies when the community correction order that is imposed in
addition to a sentence of imprisonment by virtue of section 44
commences.
If the offender is serving a sentence of imprisonment that does
not have a non-parole period fixed, then the community
correction order commences upon the offender's release from
imprisonment. If the offender is serving a sentence of
imprisonment with a non-parole period, the community
correction order will commence upon completion of the parole
period as defined in section 55(1) of the Corrections Act 1986.
Subclause (4) clarifies that a reference in section 44 to a sentence
of imprisonment does not include a suspended sentence.
Clause 19 inserts two new offences into clause 5 of Schedule 1 to the
Sentencing Act 1991, with the result that those offences are
treated as "arson offences" for the purposes of Part 2A of the
Sentencing Act 1991. The offences inserted are--
· placing inflammable material for the purpose of causing
fire, contrary to section 66 of the Forests Act 1958; and
· causing fire in a country area with intent to cause
damage, contrary to section 39C of the County Fire
Authority Act 1958.
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PART 6--REPEAL OF THE AMENDING ACT
Clause 20 provides for the repeal of the Act on 1 July 2016. The repeal of
the Act will not affect the continuing operation of the
amendments made by it (see section 15(1) of the Interpretation
of Legislation Act 1984).
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