Introductory Info

Date introduced: 11 September 2019
House: House of Representatives
Portfolio: Attorney-General
Commencement: The formal provisions of the Bill commence on Royal Assent.

Bills Digest at a glance

The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (the Bill) passed the House of Representatives on 15 October 2019. The key measures in the Bill amend the Crimes Act 1914 and the Criminal Code Act 1995 (Criminal Code) to:

• increase protections for vulnerable witnesses in relation to giving evidence, especially through the use of video evidence
• amend the sentencing factors for all federal offenders to provide that the seriousness of an offence will be aggravated where a person uses their community standing to facilitate the crime
• emphasise the importance of access to rehabilitation and treatment when sentencing child sex offenders
• create a new offence of providing electronic services to facilitate dealings with child abuse material
• create new offences of ‘grooming’ a third party—using the post, a carriage service or outside Australia—to facilitate sexual activity with a child
• increase maximum penalties across the spectrum of child sex offences
• introduce presumptive minimum sentences for the most serious child sex offences and for perpetrators convicted of second and subsequent offences with lower penalties
• introduce a presumption against bail for persons accused of offences which could result in a minimum sentence of imprisonment and
• introduce presumptions in favour of cumulative sentences and actual imprisonment for child sex offenders.

Committee reports

The Senate Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights expressed concern about provisions in Schedules 6, 7 and 11 of the Bill.

The Senate Legal and Constitutional Affairs Legislation Committee published a report recommending that the Senate pass the Bill; however, Australian Labor Party (Labor) Senators issued a Dissenting Report that recommended the Bill be amended, including to remove mandatory minimum sentencing, and that the Government provide appropriate undertakings to conduct further inquiry. The Australian Greens Senator on the Committee also issued a Dissenting Report recommending that the Bill be withdrawn and redrafted without mandatory minimum sentencing, and with consideration of the technical concerns raised in various legal submissions.

Key Issues

Most interest groups support protections for vulnerable witnesses and agree that current sentences for child sex abuse offences do not reflect community expectations.

Interest groups generally support an increased emphasis on treatment and rehabilitation; however, several questioned the resourcing and availability of relevant programs.

While several interest groups representing child sexual abuse survivors expressed support for mandatory minimum sentencing and presumptions against bail, some preferred alternative measures, and many interest groups expressed strong opposition to those measures.

History of the Bill

A substantially similar Bill, the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 (the 2017 Bill), was introduced on 13 September 2017.[1] The 2017 Bill passed the House of Representatives but lapsed at the end of the last Senate term on 1 July 2019, after its introduction to the Senate. A Bills Digest was published for the 2017 Bill.[2] This Bills Digest uses the research sources of the earlier Digest and repeats some of the commentary; however, it is a fresh consideration of the Bill.

Purpose of the Bill

The purpose of the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (the Bill),[3] is to amend the Crimes Act 1914 and the Criminal Code Act 1995 (Criminal Code). The purpose of the amendments is described in the Explanatory Memorandum:

This Bill better protects the community from the dangers of child sexual abuse by addressing inadequacies in the criminal justice system that result in outcomes that insufficiently punish, deter or rehabilitate offenders. The Bill targets all stages of the criminal justice process, from bail and sentencing through to post‑imprisonment options.

This Bill combats the evolving use of the internet in child sexual abuse and addresses community concern that the sentencing for child sex offences is not commensurate to the seriousness of these crimes.[4]

Key measures proposed by the Bill will: [5]

• increase protections for vulnerable witnesses in relation to giving evidence, especially through the use of video evidence
• amend the sentencing factors for all federal offenders to provide that the seriousness of an offence will be aggravated where a person uses their community standing to facilitate the crime
• emphasise the importance of access to rehabilitation and treatment when sentencing child sex offenders
• create a new offence of providing electronic services to facilitate dealings with child abuse material
• create new offences of ‘grooming’ a third party—using the post, a carriage service or outside Australia—to facilitate sexual activity with a child
• increase maximum penalties across the spectrum of child sex offences
• introduce presumptive minimum sentences for the most serious child sex offences and for perpetrators convicted of second and subsequent offences with lower penalties
• introduce a presumption against bail for persons accused of offences which could result in a minimum sentence of imprisonment and
• introduce presumptions in favour of cumulative sentences and actual imprisonment for child sex offenders.

Structure of the Bill

The Bill proposes amendments in 14 schedules which can be grouped together by purpose as follows:

Amendments of general application to Commonwealth sentencing and criminal procedure

• Revocation of parole order or licence—Schedules 1 and 13
• Criminal procedure for dealing with vulnerable persons—Schedules 2 and 3
• Courts must provide reasons for bail in certain circumstances—Schedule 7, Part 1
• Additional factors to be taken into account on sentencing—Schedule 8, items 1 and 2
• Residential treatment orders as a sentencing option—Schedule 12.

Amendments relating specifically to child sexual abuse offences

• Definitions in the Crimes Act—Schedule 14
• New child sex abuse offences in the Criminal Code—Schedule 4
• Sentencing law for child sexual abuse offences
  • Increased penalties—Schedule 5
  • Minimum sentences—Schedule 6
  • Presumption against bail—Schedule 7, Part 2
  • Matters court has regard to when passing sentence—Schedule 8, item 3
  • Additional sentencing factors for certain offences—Schedule 9
  • Cumulative sentences—Schedule 10
  • Conditional release of offenders after conviction—Schedule 11.
    

Background

Royal Commission into Institutional Responses to Child Sexual Abuse

The Gillard Labor Government appointed a six-member Royal Commission to investigate ‘Institutional Responses to Child Sexual Abuse’ in 2012 (the Royal Commission).[6]

The Royal Commission’s research report, Criminal Justice, was released on 14 August 2017.[7] In a summary document, Final Report: Recommendations, the Commission made 85 recommendations aimed at reforming the Australian criminal justice system in order to provide a fairer response to victims of institutional child sexual abuse.[8]

The Australian Institute of Criminology prepared a special report for the Royal Commission, Historical Review of Sexual Offence and Child Sexual Abuse Legislation in Australia: 1788–2013.[9] The report provides information on all sexual offence and child sexual abuse legislation in Australian jurisdictions and changes in attitudes to sexual offences and policy over time.

The Bill is consistent with some of the recommendations made by the Royal Commission; however, the Explanatory Memorandum is not explicit about which recommendations the Bill is implementing.[10]

Scrutiny of 2017 Bill

The 2017 Bill passed the House but lapsed on 1 July 2019 after its introduction to the Senate.[11] The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee which issued a report on 16 October 2017.[12]

The Senate Standing Committee for the Scrutiny of Bills (the Scrutiny Committee) reported on the Bill in Scrutiny Digest 12 of 2017 and asked the Minister to provide more information. The Minister’s response and the Scrutiny Committee’s further comments are published in Scrutiny Digest 13 of 2017.[13]

The Parliamentary Joint Committee on Human Rights (PJCHR) considered the 2017 Bill in Human Rights Scrutiny Report 11 of 2017 and also asked the Minister for more information. The Minister’s response and the PJCHR’s further comments are in Human Rights Scrutiny Report 13 of 2017.[14]

Committee consideration

Senate Standing Committee for the Scrutiny of Bills

The Scrutiny Committee considered the Bill on 18 September 2019 in Scrutiny Digest 6 of 2019.[15]

The Scrutiny Committee referred to its comments on the 2017 Bill in Scrutiny Digest 13 of 2017,[16] and noted it did not have any additional comments regarding:

• procedural fairness and broad discretionary power (Schedule 1, proposed paragraph 19AU(3)(ba)) and
• reversal of legal burden of proof (Schedule 4, items 20, 22, 40 and 42).
• The Scrutiny Committee made additional comment on the following matters:
• mandatory minimum sentences (Schedule 6, items 1 and 2)
• right to liberty—presumption against bail (Schedule 7, items 1, 3 and 4) and
• right to liberty—conditional release (Schedule 11, items 1, 2 and 3).

The Scrutiny Committee’s comments are further discussed below under the relevant schedule. The Scrutiny Committee did not request further advice from the Minister.

Senate Legal and Constitutional Affairs Legislation Committee

On 12 September 2019, the Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee (the LCA Committee) for inquiry following the recommendation of the Selection of Bills Committee.[17] Submissions to the inquiry closed on 30 September 2019.[18] The Bill was debated in the House of Representatives on 15 October 2019, before the LCA Committee had issued its report.[19] The LCA Committee published its report (LCA Committee Report) on 7 November 2019 recommending that the Senate pass the Bill.[20]

Australian Labor Party (Labor) Senators issued a Dissenting Report that recommended the Bill be amended, and that the Government provide appropriate undertakings to implement the following recommendations:

1. Schedule 6 should be deleted from the bill.[21]
2. The bill should be amended to include a comprehensive statutory review of Commonwealth sentencing practices for child sex offences. The findings of that review should be reported to the Parliament within three years of the bill coming into effect.
3. The Government should commence an urgent inquiry into the adequacy of the resourcing that:

1. is currently available to state and territory authorities, including courts, to implement the measures introduced by this bill; and
2. is currently available to authorities across Australia for the detection and apprehension of those who commit crimes against children, especially online,

and report to the Parliament within 6 months.[22]

The Australian Greens (the Greens) also issued a Dissenting Report that recommended that the Bill be withdrawn and redrafted without mandatory minimum sentencing, and with consideration of the technical concerns raised in various legal submissions to this inquiry.[23]

Policy position of non-government parties/independents

Labor is broadly supportive of many aspects of the Bill. In debate in the House of Representatives, the Shadow Attorney-General Mark Dreyfus noted that the LCA Committee had not yet reported on the Bill and indicated that, out of respect for the process of the Committee and the organisations and individuals engaging with it, Labor ‘will not finalise its position on the majority of measures introduced by this bill until that inquiry has concluded’.[24]

Mr Dreyfus stated:

Labor are committed to doing what we can to protect children from harm and abuse ... To the extent that there is disagreement between us and the government on this subject matter, it will only ever be about the means and not the ends ... there are clearly many aspects of this bill that should enjoy broad support across this parliament, subject to working through the detail.

The introduction of measures to protect child and other vulnerable witnesses in court proceedings, the creation of aggravated offences where a child victim has a mental impairment and requiring judges to consider a range of additional factors, including aggravating factors, at the time of sentencing are potential examples.

I would also add that Labor does not, as a matter of principle, oppose increasing maximum penalties in appropriate circumstances. Where there is evidence that offenders are consistently being given sentences that are, on any view, inadequate, it is appropriate for the parliament to respond by increasing maximum penalties. Doing so sends a clear signal to judges that sentences should be higher, a signal that as a matter of law and established sentencing practices cannot be ignored. That is why when a version of this bill was brought before the previous parliament, Labor called for amendments to further increase maximum sentences for some child sex offences over and above the increases originally proposed by the government.

...

Labor opposes mandatory sentencing and detention regimes; they are often discriminatory in practice, conflict with the role of the judiciary as an independent arm of government, and have not proved effective in reducing crime or criminality.[25]

A number of other members of Labor also expressed opposition to mandatory sentencing during the second reading debate.[26]

A Labor amendment to the second reading motion, which noted that the Opposition supported the objectives of the Bill and sought to work with the Government on alternative approaches to sentencing to achieve the Bill’s objects, did not pass the House.[27] The Bill passed the House of Representatives without a division.[28]

Senator Nick McKim stated in the Greens Additional Comments to the Committee inquiry into the 2017 Bill that:

• the Greens were supportive of legislative measures that address protecting children against sexual abuse and harm
• the Greens have consistently opposed mandatory minimum sentences
• the 2017 Bill should have been shaped by the final reports of the Royal Commission and the Australian Law Reform Commission (ALRC) inquiry into Incarceration Rates of Aboriginal and Torres Strait Islander Peoples
• the inclusion of the presumption against bail within the 2017 Bill was inconsistent with the presumption of innocence
• the presumption in favour of cumulative sentences contained within the 2017 Bill would lead to unfair and unjust outcomes.[29]

In their Dissenting Report to the Committee inquiry on the 2019 Bill, the Greens stated they considered:

... sexual offences committed against children to be extremely serious, and believe serious sex offenders should receive appropriate sentences that are, ... in line with increasing societal understanding of the seriousness of [sexual crimes against children] and the enduring impact of such offences on survivors.[30]

The Greens recommended that the Bill be withdrawn and redrafted without mandatory minimum sentencing, and with consideration of the technical concerns raised in various legal submissions to this inquiry.[31]

The Greens did not speak during the second reading debate in the House of Representatives.[32]

Outline of position of major interest groups

Twenty two submissions by interest groups were made to the LCA Committee inquiry into the Bill.[33] This section contains only a summary of the positon of major interest groups. Their positions are discussed further under the relevant schedule.

Bravehearts

Bravehearts is an agency that works with and advocates for survivors of child sexual harm. It broadly supports the proposed amendments as promoting justice for survivors. Bravehearts additionally advocates for minimum standard non-parole periods (NPP) as preferable to the proposed amendments setting mandatory minimum sentences with the minimum NPP set by the court. The effect would be to legislatively impose a minimum time served in custody rather than a minimum head sentence.[34]

Knowmore

Knowmore is a nation-wide free legal service for victims and survivors of child abuse. Knowmore is generally supportive of the Bill’s objects, however, is concerned that some of the proposed amendments depart from the findings and recommendations of the Royal Commission. In particular Knowmore advocated for the Bill to introduce further amendments to Part IAD of the Crimes Act to include adult victims and survivors of child sexual abuse within the definition of ‘vulnerable adult complainant’.[35]

Royal Australian and New Zealand College of Psychiatrists

The Royal Australian and New Zealand College of Psychiatrists (RANZCP) is the principal organisation representing the medical specialty of psychiatry in Australia and New Zealand and is responsible for training, educating and representing psychiatrists on policy issues.[36]

The RANZCP broadly supports the amendments as reflecting community expectations and responding to emerging trends. The RANZCP supports the Bill’s focus on community safety, especially the addition of community safety as a factor in granting bail, and the presumption against bail.[37]

The RANZCP stated: ‘[r]esearch has demonstrated that treatment can reduce rates of recidivism in sexual offenders’.[38] The RANZCP believes that the requirement for the courts to consider rehabilitation when sentencing an offender, and the courts’ ability to impose treatment conditions, is an important balance to increased maximum penalties and mandatory sentencing:

The RANZCP is pleased to see that the Bill distinguishes the sentencing and rehabilitation options for intellectually disabled offenders from offenders more broadly, acknowledging that options may need to be modified to be effective for that population.[39]

Sexual Assault Support Service

Sexual Assault Support Service (SASS) provides free and confidential counselling, crisis support, case management and advocacy for people of all ages who have been affected by any form of sexual violence. SASS also provides counselling to children and young people who are displaying problem sexual behaviour or sexually abusive behaviour, along with support and information for their family members and/or carers, and delivers a Redress Scheme Support Service to survivors of institutional child sexual abuse.[40]

SASS broadly supports the measures proposed in the Bill; however, SASS does not support mandatory minimum sentencing on the basis that there is not sufficient evidence to suggest it is an effective response. SASS would prefer to see presumptive minimum NPPs and guideline judgments.[41]

Carly Ryan Foundation

The Carly Ryan Foundation is a not-for-profit, registered harm prevention charity created to promote internet safety and prevent crime against children under the age of 18 years.

The Carly Ryan Foundation broadly supports the proposed amendments, including the proposed offences, however expressed concern that courts retain the capacity to set low minimum NPP.[42]

Justice Action

Justice Action works to defend and advocate for those detained in Australian prisons and hospitals. It supports individualised justice in criminal trials. Justice Action did not support the amendments proposed in the Bill on the basis that:

• general deterrence is a discredited sentencing principle[43]
• imposing harsh and mandatory penalties undermines the sentencing principle of proportionality
• a better approach is to increase resources directed to rehabilitation programs
• harsh sentences make children less likely to report abuse by close family members[44]

Justice Action advocated for the creation of a specialist Sexual Offences Court.[45]

Submissions from legal representative bodies

The Law Council of Australia (Law Council) supported the broad policy intent of the Bill but raised concerns about several provisions.[46] The Law Council was particularly concerned:

• that the mandatory minimum sentencing provisions may apply to conduct between teenagers using the internet
• that the Bill would place additional strain on the criminal justice system without committing additional resources
• the presumption against bail is ‘inconsistent with the presumption of innocence and established criminal law principles’ and
• the presumption in favour of cumulative sentences, and presumption in favour of an actual sentence being served may result in unjust outcomes.

The Law Council recommended the Bill should not be passed in its current form.[47]

Legal Aid NSW expressed a number of concerns with the drafting of the Bill, particularly in relation to increases in sentences and hampering of judicial discretion.[48]

Legal Aid Western Australia did not support several of the proposed amendments including those relating to mandatory sentencing, presumption against bail and cumulative sentencing.[49]

Shine Lawyers have extensive experience representing survivors of abuse in plaintiff litigation and seeking redress from every institutional redress scheme in Australia.[50] They note:

Our clients often express difficulty in coming to terms with what they feel are inadequate sentences for perpetrators of child sexual abuse. As a general proposition we agree tougher penalties ought to be imposed and the increased sentences in Schedule 5 of the bill are one such way.

We do not, however, support the implementation of mandatory minimum sentences for child sexual abuse offenders. Our view is that imposing mandatory minimum sentences is unlikely to deter offenders.[51]

The Australian Lawyers Alliance (ALA) is a national association of lawyers, academics and other professionals dedicated to protecting and promoting justice, freedom and the rights of the individual.[52] The ALA commented solely on the mandatory sentencing provisions in Schedule 6 and strongly opposed both the provisions themselves and the ‘associated implication (which is false in our experience) that it is necessary because of judicial incompetence’.[53]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[54]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights (PJCHR) considered the Bill on 17 September 2019 in Human Rights Scrutiny Report 5 of 2019.[55] The PJCHR reiterated its views as set out in its previous reports on the 2017 Bill.[56] The PJCHR did not request further advice from the Minister. In Human Rights Scrutiny Report 13 of 2017, the PJCHR expressed concerns with respect to several provisions.

Mandatory minimum sentencing provisions in Schedule 6

The PJCHR found there is a risk that the mandatory minimum sentencing provisions in Schedule 6 of the Bill may operate in ‘individual cases in a manner which is incompatible with the right to liberty and the right to be free from arbitrary detention’ because:[57]

• some sentencing discretion is retained by the court as they are able to set the minimum NPP, however it is ‘significantly limited’
• the grant of parole after a prisoner has served the minimum sentence is a matter of discretion
• although the court can apply certain discounts ‘it is unclear that the courts will be able to take fully into account the particular circumstances of the offence and the offender in determining an appropriate sentence’.[58]

The presumption against bail in Schedule 7

The PJCHR found the presumption against bail in Schedule 7 of the Bill poses a risk that, if the threshold for displacing the rebuttable presumption against bail is too high, it may result in loss of liberty in circumstances that may be incompatible with the right to release pending trial:

... a rebuttable presumption against bail remains a serious limitation on the right to release pending trial. International jurisprudence indicates that pre-trial detention should remain the exception and that bail should be granted except in circumstances where the likelihood exists that, for example, the accused would abscond, tamper with evidence, influence witnesses or flee from the jurisdiction.[59]

Conditional release of offenders after conviction in Schedule 11

The PJCHR found that the threshold of 'exceptional circumstances' appears intended to operate as a significant hurdle to sentencing a person to a suspended sentence rather than imprisonment in custody. Whether this is a sufficient safeguard against the risk of arbitrary detention will depend on how 'exceptional circumstances' are interpreted by the courts.[60]

The PJCHR found that there is some degree of risk that the measure could operate so as to be incompatible with the right to liberty if incarceration is not reasonable, necessary and proportionate in all the circumstances of the individual case.[61]

Financial implications

The Government does not expect any additional financial cost to the Commonwealth. The Explanatory Memorandum notes: ‘[t]here will be some increase in costs borne by state and Commonwealth agencies for investigating and prosecuting new offences, and these costs will be absorbed’.[62]

The Explanatory Memorandum does not identify any costs associated with proposed requirements that courts:

• specifically consider whether it is appropriate to make orders that include conditions relating to rehabilitation or treatment options and whether the custodial period provides sufficient time for the offender to undertake rehabilitation, noting that programs are available both in custody and in the community (Schedule 8)
• of summary jurisdiction keep a record of reasons for granting bail in respect of certain serious offences and child sex abuse offences as required by Schedule 7 and
• only order release of child sex offenders after serving a term of imprisonment and on a recognizance release order subject to the supervision of a parole officer as required by Schedule 11.

‘Negligible’ higher costs for states and territories

The Government flags that the Bill may result in higher costs for the states and territories due to a small rise in the number of federal offenders incarcerated in state and territory prisons but observes:

Convicted federal offenders comprise approximately 3 percent of Australia’s total prison population while convicted federal sex offenders comprise approximately 0.4 percent of that population. As such, the overall financial impact on states and territories will be negligible.[63]

The predicted number of prisoners involved and the anticipated cost is not provided in the Explanatory Memorandum.

The Australian Bureau of Statistics (ABS) reports that during the June quarter 2019, the average daily number of federal sentenced prisoners in Australia was 854. Over three quarters of the federal sentenced prisoners in the June quarter 2019 were held in New South Wales (NSW) (49 per cent or 417 persons) and Victoria (27 per cent or 228 persons).[64] If the Explanatory Memorandum is correct, NSW would hold, on average, approximately two federal sex offenders at any one time.

The Department of the Attorney-General and Justice (NT) provided comparative figures for the cost of prisoners per day in the different jurisdictions in its Annual Report reproduced at Figure 1 below.[65] The data comes from the Productivity Commission’s Report on Government Services (RoGS): ROGs most recent confirmed statistics are for 2017–18.[66] The average expenditure across the jurisdictions in Australia was $301.55. The lowest expenditure was in NSW at $237.53.

Figure 1: cost per prisoner per day across Australia

Source: Northern Territory, Department of the Attorney-General and Justice (DAGJ), Annual report 2018–19, DAGJ, 2019, p. 39.

Example of impact of increased penalties—subsection 474.27(1) of the Criminal Code

Sentencing statistics for the offence of grooming a child using a carriage service (subsection 474.27(1) of the Criminal Code) between 1 February 2014 to 31 January 2019 were supplied by the Attorney-General’s Department (AGD) and the Department of Home Affairs (DHA):[67]

• 80 convictions were recorded, with 44 sentences of imprisonment handed down
• 12 offenders were sentenced to community service and one was released on a non-conviction order; 23 offenders were released on recognizance release orders (RRO) without spending any time in prison
• the longest head sentence was 3.5 years imprisonment and the lowest two months; the most frequent head sentence was 18 months imprisonment.[68]

It is not clear how many offenders were involved; however, if each recorded sentence of imprisonment was for a discrete offender, 44 offenders over a five year period spent at least some time in prison for this offence. For the calculations below the time actually served is estimated conservatively at 50 per cent of the head sentence.

Assume that 60 percent of those 44 offenders (26 offenders) had 18 month sentences, two offenders had a 3.5 year sentence and the remainder (16 offenders) averaged four months; the total cost of imprisonment in NSW (the cheapest jurisdiction) would be: ((26x365 daysx1.5 years)+(2x365 daysx3.5 years)+(16x120 days))x50% time served=9,355 prisoner daysx$237.53 per day at a cost of $2.2 million over five years.

Schedule 5 would increase the maximum penalty for an offence against subsection 474.27(1) of the Criminal Code from 12 years to 15 years imprisonment (an increase of 25 per cent). No minimum sentence is proposed by the Bill for an offence against subsection 474.27(1) of the Criminal Code for first offenders; however the minimum sentence under proposed section 16AAB for a second or subsequent offence is four years imprisonment. 

It is not possible to accurately assess from the statistics provided the increase in number of days served and therefore the increased cost. However, for the sake of comparison, a conservative estimate can be provided. Using the same offender numbers as above, assume that:

• the two longest sentences were for second offences and those offenders were given the mandatory minimum four year sentences
• the 26 offenders with 18 month sentences had their head sentence increased to 2.5 years as a result of the signal to increase sentences given in Schedule 5 and the requirement to consider longer non-parole periods to access rehabilitation and treatment options
• the average sentence for the remaining 16 offenders increased by 25 per cent to five months.

Now the calculation is: ((2x365 daysx4 years)+(26x365 daysx2.5 years)+(16x150 days))x50% time served=14,522.5 prisoner daysx$237.53 per day at a cost of $3.4 million over five years.  

The amendments in Schedule 13 intended to ensure an offender whose parole or licence is revoked would spend some time in custody are also likely to increase total prisoner days. For the above prisoner cohort, at least 67 of the offenders would spend time on an RRO, parole or release on licence.

Even with a small prisoner cohort, and these estimates are for only one offence, presumptive minimum sentences and increased penalties are capable of rapidly driving up prison populations and costs. The Explanatory Memorandum does not indicate whether the Government has consulted with the states and territories on the effects of the proposed amendments.

Prison overcrowding across Australia

As a result of rising rates of imprisonment there is a significant jail overcrowding problem in every state and territory in Australia.[69] As at 30 June 2018, Victoria reported that ‘[t]here were 7,666 prisoners in the Victorian prison system on 30 June 2018. This represents an increase of 81.5 per cent on the 30 June 2008 figure of 4,223.’[70]

The NSW Audit Office described the problem in NSW as urgent.[71] It reported in May 2019 that measures being taken to manage overcrowding in NSW include doubling-up or tripling-up the number of beds in cells, reopening previously closed facilities and using obsolete facilities. The Audit Office also reported that the overcrowding is affecting placement of prisoners on programs to address sexual reoffending:

A lack of sufficient bed capacity in metropolitan area affects the specialist programs that are offered exclusively within that region, including for violent and sex offenders ... more than 500 eligible inmates were on extended waitlists for programs to address sexual reoffending. [72]

Position of major interest groups

The following interest groups made submission to the LCA Committee suggesting that additional funding would be required to implement the requirements of the Bill:

• Legal Aid Western Australia and the Centre for Crime, Law and Justice at the University of NSW in relation to availability of both custodial and community rehabilitation[73]
• the Law Council in relation to the increased burden on the courts and criminal justice system and specifically for the residential treatment order regime.[74]

PROPOSED AMENDMENTS TO GENERAL SENTENCING AND CRIMINAL PROCEDURE

Revocation of parole

Schedule 1—Revocation of parole order or licence without notice to protect community

Schedule 1 is unchanged from the 2017 Bill.

Commencement

Schedule 1 will commence on the day after Royal Assent.

Explanation of provisions

As part of standard sentencing practices, a court can use its discretion to determine a non-parole period of the prison sentence, after which time the offender can usually apply administratively for parole. In relation to federal sentences of imprisonment, no application is needed—the Attorney-General is required to consider whether to release a prisoner before the end of their NPP.[75] Parole may be allowed with conditions; for example, weekly reporting or limited movement.

Section 19AU of the Crimes Act allows the Attorney-General, by written instrument, to revoke a parole order or licence at any time before the end of the parole or licence period if the person has failed to comply with a condition of the order or licence, or there are reasonable grounds for suspecting that the offender has failed to comply.

The general rule is that the Attorney-General must give 14 days written notice to the person advising them of the condition alleged to have been breached and that the Attorney‑General proposes to revoke the parole order or licence. This gives the offender an opportunity to provide written reasons why the order or licence should not be revoked (subsection 19AU(2)).

Subsection 19AU(3) outlines four conditions that remove the need for notice to be given to the person. In summary they are where the person’s whereabouts are unknown, where it is urgent, where the person is outside Australia or where it is necessary in the interests of the administration of justice.

Schedule 1 will insert proposed paragraph 19AU(3)(ba) to allow the Attorney-General to revoke the parole order or licence without giving notice to the person in the interests of ensuring the safety and protection of the community or of another person.

The proposed amendment is broad and its general application would mean that parole could be revoked without notice by the Attorney-General for many federal offenders (including terrorist offenders, drug offenders and trafficking offenders). If parole is revoked, the person will be immediately detained in custody. The Explanatory Memorandum states:

Importantly, the person is still afforded procedural fairness as they retain the opportunity under section 19AX of the Crimes Act to make a written submission to the Attorney-General as to why the parole order should not be revoked. However, during this time the person will be remanded in custody, where they cannot cause harm. If, after considering the person’s submission, the Attorney-General decides to rescind the revocation order, he or she would be immediately released from prison.[76]

Position of major interest groups

The Law Council described this amendment as 'objectionable on procedural fairness grounds' and recommended its removal. AGD and DHA argued that procedural fairness protections were incorporated. Legal Aid NSW opposed the provision as unnecessary. SASS supported the provision but also suggested it did not seem necessary.[77]

Schedule 13—Revocation of parole order or licence—serving time in custody

Schedule 13 is substantially the same as Schedule 14 of the 2017 Bill.

Commencement

Schedule 13 will commence 28 days after Royal Assent.

Key provisions

A parole order or licence will be automatically revoked under section 19AQ if a person is sentenced to more than three months imprisonment for a further federal, state or territory offence committed during the parole period.

Calculation of credit for ‘clean street time’

When an offender’s parole is revoked, the remainder of the sentence to be served for the initial offence must be calculated. An offender obtains some credit for the period of release without reoffending; this period is referred to as ‘clean street time’. A person on parole or licence who has their parole revoked is liable to serve the remainder of the outstanding sentence less any clean street time.

Subsection 19AA(2) of the Crimes Act currently applies state and territory laws for calculating clean street time to federal offenders. However, not all states and territories allow credit for clean street time and some credit clean street time up to the date of sentencing rather than to the date of offending. According to the Explanatory Memorandum:

The effect of automatic revocation based on the date of sentencing rather than at the time at which the further offence was committed has led to offenders receiving credit for time during which they have not been of good behaviour. Often it is also the case that the offender has no time left to serve because of the lapse of time between the commission of the offence and the date of sentencing.[78]

Proposed section 19AQ introduces a federal policy intended to reduce the amount of clean street time that can be credited by a court as time served against the outstanding sentence (item 5). Items 1–4 are consequential amendments implementing that policy.

The amendments will require the sentencing court to determine the revocation time, which will be the time when the new offence was: committed, most likely to have been committed, or began to be committed (proposed subsection 19AQ(3)). The amount of the outstanding sentence an offender is liable to serve after revocation of the parole order or licence will then be either:

• the entire balance of the outstanding sentence or
• if the court considers it appropriate having regard to the person’s good behaviour, that period reduced by the period of clean street time; that is the entire balance of the sentence, less the period from the date of release to the revocation time (proposed subsection 19AQ(4)).

Fixing non-parole period where parole or licence automatically revoked

Section 19AR currently deals with fixing of non-parole periods where a parole or licence is automatically revoked. Items 6-14 will amend section 19AR to require that a federal offender must usually serve a period of time in custody where a parole or licence is automatically revoked.

Proposed subsection 19AR(1) applies to a person who is sentenced to a term of imprisonment for a federal offence that was committed when the person was on parole or licence for a previous federal offence (item 7). Proposed subsection 19AR(3) deals with situations where a person is sentenced to a term of imprisonment for a state or territory offence that was committed when the person was on parole or licence for a previous federal offence (item 8). In each situation the sentencing court must not make a recognizance release order and:

• if the person has been sentenced for a new federal offence, must fix a single new non-parole period for the new sentence and the outstanding sentence having regard to the total period of imprisonment the person is liable to serve or
• if the person has been sentenced for a state or territory offence, must fix a single new non-parole period for the outstanding sentence having regard to the total period of imprisonment the person is liable to serve.

Exceptions to requirement to serve a term of imprisonment

Proposed subsection 19AR(4) provides that a court may decline to fix a non-parole period if the court is satisfied that doing so is appropriate having regard to:

• the serious nature and circumstances of the offence or offences and
• the antecedents of the person.

The amendments are subtle: proposed subsection 19AR(4) requires the court to consider whether it is appropriate to decline to fix a non-parole period rather than whether it is not appropriate to fix a non-parole period. The court is also directed to the ‘serious’ nature and circumstances of the offence’ rather than only the nature and circumstances of the offence.

Proposed paragraph 19AR(4)(b) adds a further exception that a court may decline to fix a non-parole period if the person is expected to be serving a state or territory sentence on the day after the end of the federal sentence.

Criminal procedure—evidence of vulnerable persons

Schedule 2—Use of video recordings

Schedule 2 is unchanged from the 2017 Bill.

Commencement

Schedule 2 will commence on the day after Royal Assent.

Explanation of provision

The present position on the admission of pre-recorded video evidence in criminal proceedings is that a court may grant leave for a video recording of an interview conducted by police to be admitted as evidence in chief (paragraph 15YM(1)(b) Crimes Act). Subsection 15YM(2) prohibits the court from giving leave if satisfied that it is not in the interest of justice for the person’s evidence in chief to be given by a video recording.

The Government is concerned that the need to seek leave for video evidence to be admitted ‘may have an adverse effect on the vulnerable witness and is contrary to the intent of the vulnerable witness protections more broadly’.[79] In his second reading speech, the Attorney-General Christian Porter stated the amendments would

... improve justice outcomes by limiting the re-traumatisation of vulnerable witnesses by removing barriers to the admission of pre-recorded video evidence and ensuring that they are not subject to cross examination at committal and other preliminary hearings, thus allowing them to put their best evidence forward at trial.[80]

Item 1 will amend section 15YM to allow a video recording of an interview of a person (a child witness, a vulnerable adult complainant, or a person declared as a special witness[81] under subsection 15YAB(1)), in a proceeding to be admitted as evidence in chief if a constable, or a person of a kind specified in the regulations, conducted the interview.

Item 2 will repeal subsections 15YM(2)–(3). This will remove a requirement in subsection 15YM(2) that a court must not give leave if satisfied ‘that it is not in the interest of justice for the person’s evidence in chief to be given by a video recording’. This provision is no longer needed as the leave of the court will not be required. However, proposed amendments maintain subsection 15YM(4) which provides that a person must be available for cross-examination and re-examination if he or she gives evidence in chief by a video recording.

The Explanatory Memorandum notes that removing the requirement to seek leave ‘also brings the Commonwealth’s vulnerable witness protections into line with the approach taken by states and territories’.[82]

The proposed amendments complement recommendations that were made about police investigative interviewing in relation to reports of child sexual abuse by the Royal Commission, which stated that police conduct should accord with principles including:

The importance of video recorded interviews for children and other vulnerable witnesses should be recognised, as these interviews usually form all, or most, of the complainant’s and other relevant witnesses’ evidence in chief in any prosecution.[83]

Position of major interest groups

The Law Council noted that the removal of the requirement for leave was best practice, but suggested training for the making and use of pre-recorded testimony would be needed. Legal Aid NSW supported Schedule 2.[84]

Knowmore was concerned that the proposed provisions do not fully implement the special measures recommended by the Royal Commission relating to the prerecording and recording of the evidence of victims and survivors:

Consistent with the views of the Royal Commission, these measures should be made available for all complainants in child sexual abuse proceedings, including adults in proceedings involving historical allegations of child sexual abuse.

Currently, section 15YM(1A) limits the application of the special measure to a child witness for a child proceeding; a vulnerable adult complainant in a vulnerable adult proceeding; and a special witness for whom an order is in force. As a result of the operation of sections 15Y(2) and 15YAA, an adult complainant in a proceeding involving historical allegations of child sexual abuse is not considered to be a vulnerable adult complainant under Part IAD of the Act. Therefore, they are not eligible for this special measure, and will not benefit from the use of video recordings unless a court makes specific orders under the special witness provisions.[85]

Schedule 3—Cross-examination of vulnerable persons at committal proceedings

Schedule 3 is unchanged from the 2017 Bill.

Commencement

Schedule 3 will commence 28 days after Royal Assent.

Background

In its 2006 report, Uniform Evidence Law, the ALRC found that child witnesses are particularly vulnerable in the adversarial trial system. In their inquiry into children and the legal process, the ALRC and the Human Rights and Equal Opportunity Commission (now the Human Rights Commission) ‘heard significant and distressing evidence that child witnesses, particularly in child sexual assault cases, are often berated and harassed to the point of breakdown during cross-examination’.[86]

Key provisions

Proposed subsection 15YHA(1) of the Crimes Act prevents the cross-examination, at committal proceedings or proceedings of a similar kind, of a child witness, a vulnerable adult complainant or a person declared as a special witness under section 15YAB (item 5). Under section 15YAB a court may declare a person to be a special witness in relation to the proceeding if satisfied that the person is unlikely to be able to satisfactorily give evidence in the ordinary manner because of a disability or intimidation, distress or emotional trauma.

The Explanatory Memorandum outlines that the amendments in Schedule 3 will achieve three things:

• vulnerable witnesses will be spared an additional risk of re-traumatisation
• criminal justice processes will be streamlined by ensuring lengthy cross-examination is reserved for trials and not committal proceedings (or proceedings of a similar kind)
• the Commonwealth will be brought broadly into line with practice in other Australian states and territories.[87]

Position of major interest groups

Legal Aid NSW opposed the breadth of Schedule 3 and submitted it should be predominantly targeted toward the sexual offences listed in section 15Y of the Crimes Act. [88]

Shine Lawyers submitted:

... a rebuttable presumption against cross examination at a committal hearing would be more flexible than banning cross examination. This would allow judicial discretion to permit or prevent cross examination of a vulnerable witness in committal proceedings where proper to do so rather than imposing a blanket ban.[89]

The Law Council recommended:

The proposed ban on cross-examination of vulnerable witnesses should be removed from the Bill and replaced by an approach which prevents cross-examination of vulnerable witnesses unless 'exceptional circumstances' can be demonstrated and for a defined set of offences only.[90]

AGD and DHA stated that the Bill did not propose a complete ban on the appearance of vulnerable witnesses at committal hearings and that the proposed amendments were valuable to prevent re-traumatisation of vulnerable witnesses.[91]

Reasons for granting bail to be recorded in certain circumstances

Schedule 7 Part 1—Court records

Schedule 7 Part 1 is in substantially the same terms as the 2017 Bill.

Commencement

Part 1, Division 1 of Schedule 7 will commence on the day after Royal Assent.

Part 1, Division 2 of Schedule 7 will commence on the later of:

1. immediately after the commencement of the provisions in Part 1, Division 1 of Schedule 7 (the day after Royal Assent) and
2. the commencement of Schedule 1 to the Counter-Terrorism Legislation Amendment (2019 Measures No. 1) Act 2019.[92]

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

Key issue—the purpose of the provision is not clear

When a person is charged with a Commonwealth offence, section 15 of the Crimes Act allows a court of summary jurisdiction to defer the hearing and either remand the defendant to custody until the hearing, or order bail on condition to appear at the hearing.

Subsection 15AA(1) provides that a bail authority is not to grant bail to a person charged with, or convicted of, an offence covered by subsection 15AA(2) unless exceptional circumstances exist to justify bail. Subsection 15AA(2) covers a range of serious offences such as terrorism offences.

Item 1 inserts a requirement in proposed subsection 15AA(3AAA) that if a court grants bail to a person under subsection 15AA(1), the court must state its reasons and the reasons must be entered in the court’s records.

The Explanatory Memorandum states that the giving of reasons is important due to the seriousness of the offences and the potential risk to the community if bail is granted. It is not clear how the court giving reasons for granting bail would ameliorate any potential risk to the community. The outcome of bail applications for serious offences is usually publicly reported by journalists, especially unusual offences such as terrorism and espionage. The prosecuting authority is present in court to hear and record the order.

The Explanatory Memorandum does not indicate how the additional administrative step would assist community safety.

Schedule 8, items 1 and 2—Additional general sentencing factors

Schedule 8 is the same as the 2017 Bill.

Commencement

Schedule 8 will commence 28 days after Royal Assent.

Additional sentencing factors

Section 16A of the Crimes Act requires a court, in determining a sentence to be passed for a federal offence, to impose a sentence or make an order that is ‘of a severity appropriate in all the circumstances of the offence’. Subsection 16A(2) outlines the matters to which a court is to have regard when passing a sentence for a federal offence. The list of matters includes:

• the nature and circumstances of the offence
• the personal circumstances of any victim of the offence
• the degree to which the offender has cooperated with law enforcement and
• the need to ensure that the person is adequately punished.

Item 1 amends paragraph 16A(2)(g) which requires the court to take into account a guilty plea when determining the severity of sentence appropriate in the circumstances. Proposed paragraph 16A(2)(g) will also require the court to consider: the timing of that guilty plea, and the degree to which the plea resulted in any benefit to the community, or to any victim or witness to the offence.

Item 2 inserts proposed paragraph 16A(2)(ma) which provides that where a person’s professional or community standing has been used to aid commission of an offence, that will be an aggravating factor which might increase the sentence.

The Explanatory Memorandum states the intention of proposed paragraph 16A(2)(ma):

It is intended that this will capture scenarios where a person’s professional or community standing is used as an opportunity for the offender to sexually abuse children. For example, this would cover a medical professional using their professional standing as a medical practitioner, or a person using celebrity status, to create opportunities to sexually abuse children.[93]

The provisions as currently drafted apply to all Commonwealth offences and are not restricted to Commonwealth child sex abuse offences.

Residential treatment orders as a sentencing option

Schedule 12—Additional sentencing alternatives

Schedule 12 is unchanged from the 2017 Bill.

Commencement

Schedule 12 will commence on the day after Royal Assent.

Residential treatment orders

Subsection 20AB(1) of the Crimes Act allows state and territory courts to impose on federal offenders any of the alternative non-custodial sentencing options that are available under the law of that state or territory and listed in subsection 20AB(1AA). These options currently include:

• a community correction order
• a drug or alcohol treatment order or rehabilitation order
• a good behaviour order
• an intensive supervision order
• a sentence of weekend detention or a weekend detention order.

Item 1 of Schedule 12 will add a residential treatment order to the list at proposed subparagraph 20AB(1AA)(a)(viia). The new order is proposed so that courts in Victoria can apply to federal offenders the new orders available in Victoria under section 82AA of the Sentencing Act 1991 (Vic).[94]

Detention of persons with mental illness or intellectual disability

The proposed residential treatment order is not, on the face of section 20AB, limited in its application to particular offenders; however, a court can only make such an order if it is empowered to make the order under a state or territory law, which means that all the conditions that apply to its use in relation to a state offender automatically apply to a federal offender.

The Victorian order under section 82AA of the Sentencing Act 1991 (Vic) is available only for offenders with an intellectual disability. It allows a sentencing court to order that an intellectually disabled offender be detained and treated for a period of up to five years if the offender has been convicted of a ‘serious offence’ (including murder and kidnapping) or a specified sexual assault offence.[95]

There is already a different type of federal order available to the court for a person who is suffering from a mental illness or intellectual disability and is charged with a federal offence.

Under section 20BQ of the Crimes Act, a court of summary jurisdiction (that is, a local or magistrates court or equivalent) may:

• dismiss the charge and discharge the offender
  • unconditionally or
  • into the care of a responsible person for a maximum of three years (either unconditionally or subject to conditions) or
  • on condition that the offender attend a certain place or person for assessment and/or treatment for a maximum period of three years or

do one or more of:

• adjourn the proceedings
• remand the person on bail
• make any other order.

Where a court makes such an order:

• the order acts as a stay on further proceedings against the person for that offence and
• the court may not also make certain other types of orders—item 2 of Schedule 12 excludes the proposed paragraph (viia) residential treatment order from that list of orders.

The effect is that the court will be able to make an order allowed under state or territory law via subparagraph 20AB(1AA)(a)(viiia) and an order under section 20BQ of the Crimes Act.

Key differences between the two orders

Note that the federal section 20BQ orders do not require a conviction or any particular finding of fact before the court imposes the order. Federal orders are only available for three years, whereas the Victorian orders may be for a period of five years.

Interest group comment

The RANZCP is pleased to see that the Bill distinguishes the sentencing and rehabilitation options for intellectually disabled offenders from offenders more broadly, acknowledging that options may need to be modified to be effective for that population.[96]

PROPOSED AMENDMENTS SPECIFICALLY APPLYING TO CHILD SEXUAL ABUSE OFFENCES

Background

The amendments relating to child sex abuse offences include proposals for new offences and increased penalties. This section provides background on Parliament’s power to legislate those proposals and, to assist Parliament in deciding the appropriate penalties, outlines how the offences affect children, who commits these offences, and what sentencing approaches might most effectively prevent reoffending.

Constitutional power to enact laws relating to child sex abuse

The Australian Constitution leaves the general legislative power with respect to criminal law with the states and territories. The Commonwealth has legislative power to make criminal offences related to subjects within federal legislative power.[97] So, for example, the Commonwealth has power to make laws with respect to ‘postal, telegraphic, telephonic and other like services’ under section 51(v) of the Constitution and with respect to ‘external affairs’ under section 51(xxix).[98]

Constitutional power to impose mandatory sentences

It is settled law that Parliament has the power to alter sentencing principles, and can set mandatory minimum sentences and even a mandatory sentence. In Palling v Corfield, Barwick CJ said that, although mandatory sentences are undesirable, the court must obey a mandatory penalty assuming it is valid in other respects:

It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime. But whether or not such a discretion shall be given to the court in relation to a statutory offence is for the decision of the Parliament. It cannot be denied that there are circumstances which may warrant the imposition on the court of a duty to impose specific punishment... It is not, in my opinion, a breach of the Constitution not to confide any discretion to the court as to the penalty to be imposed.[99] 

In Magaming v The Queen[100] the majority of the High Court upheld the mandatory minimum sentences in sections 233C and 236B of the Migration Act 1958 (Cth) despite an unusual comment in the lower court judgment of the NSW Court of Appeal that the offender in this case, ‘an illiterate and indigent deckhand ... pondering his incarceration for five years for a first offence, could legitimately conclude that, at a human level, he or she had been treated arbitrarily or grossly disproportionately or cruelly.’[101] Justice Gageler gave a persuasive dissenting judgment and it is an argument that may be brought back to the High Court in the future.[102]

Understanding child sex abuse offending

The harm done by child sex abuse offending

Volume 3 of the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse dealt with the impact of child sex abuse on victims:

‘As a victim, I can tell you the memories, sense of guilt, shame and anger live with you every day. It destroys your faith in people, your will to achieve, to love, and one’s ability to cope with normal everyday living’.

...

The impacts of child sexual abuse are different for each victim. For many victims, the abuse can have profound and lasting impacts. They experience deep, complex trauma, which can pervade all aspects of their lives, and cause a range of effects across their lifespans. Other victims do not perceive themselves to be profoundly harmed by the experience. [103]

...

Child sexual abuse can affect many areas of a person’s life, including their:

• mental health
• interpersonal relationships
• physical health
• sexual identity, gender identity and sexual behaviour
• connection to culture
• spirituality and religious involvement
• interactions with society
• education, employment and economic security.

For some victims, child sexual abuse results in them taking their own lives ... Of the survivors who provided information in private sessions about the impacts of being sexually abused, 94.9 per cent told us about mental health impacts. These impacts included depression, anxiety and post-traumatic stress disorder (PTSD); other symptoms of mental distress such as nightmares and sleeping difficulties; and emotional issues such as feelings of shame, guilt and low self-esteem.[104]

After mental health, relationship difficulties were the impacts most frequently raised by survivors in private sessions, including difficulties with trust and intimacy, lack of confidence with parenting, and relationship problems. Education and economic impacts were also frequently raised.[105]

The nature of child sex abuse

Volume 2 of the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse dealt with the nature and cause of child sexual abuse.

The Royal Commission found:

Adult perpetrators may use a wide range of tactics and strategies – including grooming, coercion and entrapment – to enable, facilitate and conceal the sexual abuse of a child. Grooming can take place in person and online, and is often difficult to identify and define. This is because the behaviours involved are not necessarily explicitly sexual, directly abusive or criminal in themselves, and may only be recognised in hindsight. Indeed, some grooming behaviours are consistent with behaviours or activities in non-abusive relationships, and can even include overtly desirable social behaviours, distinguished only by the motivation of the perpetrator. Perpetrators can groom children, other people in children’s lives, and institutions.

Not all child sexual abuse involves grooming. Perpetrators may also use physical force or violence as a tactic to overcome a child’s resistance to sexual abuse. This may include coercion, threats and punishment. This instils fear to enable or facilitate child sexual abuse and silence the victim.

Child sexual abuse is often accompanied by other forms of maltreatment, including physical abuse, emotional abuse, and neglect. Survivors often told us that they experienced multiple forms of abuse at the same time.[106]

No typical perpetrator

The Royal Commission found:

Despite commonly held misconceptions and persistent stereotypes, there is no typical profile of an adult perpetrator. People who sexually abuse children have diverse motivations and behaviours that can change over time.[107]

Justice Action provided the LCA Committee with a paper examining the characteristics of sex offenders in detail and which sourced much of its information from the work of Dr Karen Gelb.[108]  They wished to emphasise:

... it is important for policy makers and community members alike to realise that not all sexual offending— particularly that committed within the family—is perpetrated by adults.[109]

Young people are the offenders in a significant number of known child sexual abuse cases.[110] In Young People Who Sexually Abuse: Key Issues, Cameron Boyd and Leah Bromfield of the Australian Institute of Family Studies, observed:

It is unclear how much sexual abuse young people commit. It is notoriously difficult to accurately measure the rates of sexual abuse of any kind (Neame & Heenan, 2003). Most official figures are likely to be underestimates ... Police statistics showing the percentage of all sexual abuse committed by young people is relatively consistent (between 9-16%, ... This is consistent with victim reports on offenders from New South Wales counselling services ... This illustrates that young people are the offenders in a significant number of known sexual abuse cases.[111]

According to Boyd and Bromfield, ‘[t]he age of the offender does not determine the degree of harm caused to the victim. Intrusive acts of abuse by a school peer or sibling can be just as frightening and serious as abuse by an adult’.[112]

In Australia a child can be held criminally responsible for their actions at 10 years of age and offenders in the youngest age group certainly exist. Boyd and Bromfield cite Australian figures suggesting that 23 per cent of young people who are in treatment for their sexually abusive behaviours are aged 10–12 years and 70 per cent are 15 years or younger.[113] The proportions of each group are illustrated in Figure 2.

Figure 2: proportion of young child sex abuse offenders

Source: Parliamentary Library

Juvenile offenders are different from adult offenders

The Royal Commission explained that children who exhibit harmful sexual behaviours have often experienced trauma themselves, and require protection and treatment:

While the sexual harm that children can inflict on other children should not be minimised, children are not the same as adults in terms of their sexual and emotional development and legal responsibility. Children with problematic and harmful sexual behaviours exhibit behaviours that can range from those that fall outside what is developmentally normal through to behaviours that are coercive and abusive. Some children, particularly younger children, may engage in inappropriate sexual interactions without intending or understanding the harm it causes others.[114]

In their paper Sentencing and reatment of juvenile sex offenders in Australia, Riddhi Blackley and Lorana Bartels, with the Australian Institute of Criminology, commented:

Young people with sexually abusive behaviours are likely to have experienced significant childhood trauma and have often been exposed to neglect, physical, sexual and/or emotional abuse, had early exposure to sex and pornography and have often experienced social isolation, as well as disengagement from school. This does not limit the gravity of their offences.[115]

...

Juvenile offenders are also different from adult offenders in their neurobiology. Rapid brain development in adolescence affects a youth’s emotional regulation and response inhibition, making them more prone to taking risks and particularly susceptible to the influence of peers. These factors limit an adolescent’s psychosocial maturity, a deficit that has been shown to contribute to their involvement in crime. Steinberg and Scott (2003) have argued that psychosocial immaturity restricts a young person’s decision-making capabilities so much that it may also reduce their criminal culpability. In addition, young offenders have higher rates of intellectual disability, mental illness and victimisation than both the adult population under supervision of the criminal justice system and the population in general, which makes them a particularly vulnerable and high-needs group.[116]

In June 2019, the Law Council of Australia called on every Australian jurisdiction to raise the age of criminal responsibility to 14 years:[117]

Research-based evidence on brain development supports a higher age as children are not sufficiently able to reflect before acting or comprehend the consequences of a criminal action. Children belong in their communities with their families and guardians, not in detention. Imprisonment should be a last resort when it comes to children, not a first step.[118]

Rebekha Sharkie, MP introduced a private member’s Bill into the House of Representatives on 14 October 2019 which proposes amending the Crimes Act and the Criminal Code to raise the age of criminal responsibility to 14 years.[119]

Is rehabilitation of child sex abuse offenders possible?

In its submission to the Committee, the RANZCP stated:[120]

Research has demonstrated that treatment can reduce rates of recidivism in sexual offenders ...[121]
Prison-based programs may not be effective for all groups and may be more effective when linked to community based programs[122] and when they are designed taking into account culturally relevant factors.[123]

The idea that offenders cannot be rehabilitated and pose an ongoing threat to community safety can drive legislative reform in this area:

This group of offenders is commonly portrayed as irredeemable; indeed, the notion that sex offenders cannot change has been identified as “probably the most deeply entrenched belief about sex offenders”. Public opinion on this topic exerts an unusual degree of influence over legislation and policy.[124]

McSherry and Kcyzcr have acknowledged that public concern about the release of sex offenders is justified and governments should be doing everything they can to reduce their risk of re-offending, but described the efforts to do this as "problematic". As Kemshall has noted, sex offender management has been underpinned by an overriding concern with public protection, which has often resulted in a divergence between evidence and policy-making ... According to Daly, “[n]o offence is as politicised as sexual violence - the emotions, scandal, blame and shame associated with it are hard to deal with in a rational way”.[125]

The RANZCP supports courts being required to consider rehabilitation when sentencing an offender and noted that courts should be equipped to give informed consideration to the different treatment programs.[126]

Whatever sentence is imposed on a child sex abuse offender, at some point they will be released from prison and re-join the community. Karen Owen, a psychologist who specialises in treating sex offenders observes that most sex offenders when released have no personal support:

So offenders are largely left alone with their thoughts and in the full knowledge of the community's hatred for them and their crimes. “You can do offence-specific treatment all your life ... but if they don't believe that they're worth being on the planet then they're not going to implement the strategies.”[127]

A therapeutic method called Circles of support and accountability (CoSA) has demonstrated measurable success in rehabilitating sex offenders. CoSA involve groups of trained community volunteers who support sex offenders, known as ‘core members’, after their release from prison:

... comparing 50 core members with 50 sex offenders who were not assigned a CoSA and measuring the recidivism of the two groups over an average of six years. Duwe found a statistically significant difference in sexual recidivism between the groups, with only one core member being rearrested for a new sexual offence (2% of the total number of core members), compared with seven in the control group (14% of the total cohort). [128]

Jane Lee of The Age investigated treatment of sex offenders in Victoria and reported:

While there is no pill that can cure child sex offenders, there are therapeutic methods that can help prevent them from reoffending. Corrections Victoria staff and psychologists who treat sex offenders in the community say that therapeutic treatment can halve the rate of recidivism. [129]

Lee also reported that paedophiles make up only a very small minority of the adults who sexually abuse children. A paedophile is defined as someone who is primarily and deviantly sexually attracted to children. They are extremely difficult, some say impossible, to treat. Most child sex offenders are drawn to abuse children for a variety of reasons, many of which are not even sexual. They are generally considered more amenable to treatment. However, even without treatment most adults who abuse children will never reoffend; experts estimate between 10 and 25 per cent go on to do it again.[130]

Owen and her colleagues usually treat their patients fortnightly for about a year. Some patients have not committed a child sex abuse offence but know they are at risk and are seeking help:

Most of the clients [Owen] sees are not so much deviant as damaged. Many have experienced some form of abuse or neglect in their own childhoods that affects their ability to develop social skills... As a result, says Owen, they form distorted ways of viewing relationships, women and sex, which, once deeply embedded in their minds, are easily used to justify their abuse of children.

Only a minority meet the clinical diagnosis for paedophilia; Owen estimates about 40 per cent of her practice's clients have an intellectual disability. Often, she says, “They're trying to achieve intimacy or avoid feelings of loneliness.”

These distortions can develop at an early age following exposure to abuse in their own families, or over a long period of time, to be cemented when they become isolated in later life... Owen helps her patients unpack the reasons for these distortions, undo them and, most importantly, to take responsibility for them. Together they develop strategies for healthy sexual relationships, to avoid situations where they risk abusing children and develop empathy for their victims... This does not mean that therapeutic treatment works every time.[131]

Young child sex abuse offenders are not particularly likely to become adult sex offenders

Blackley and Bartels found:

Fortunately, there is no evidence to suggest that juvenile sex offenders will become adult sex offenders. In fact, Smallbone (2006) believes it is important to recognise that sexual offences committed by young people are not necessarily manifestations of sexual deviance; rather, they are often part of an overall pattern of antisocial and offending behaviour. Daly et al. (2013) compared recidivism rates for juvenile sex offenders whose cases were finalised in court, by conference or with a formal caution. With follow-up times ranging from six to 84 months, they found that 54 percent of young people had been charged with a new non-sexual offence, but only nine percent had been charged with a new sexual offence. This matches national and international findings of generally low sexual recidivism rates among juvenile offenders. Zimring, Piquero and Jennings (2007) found that only a ‘quite small’ fraction of juvenile sex offenders committed sex offences as adults, while the best predictor of such further offending was the frequency of juvenile offending generally, not whether there was sexual offending as a juvenile.[132]

Effective treatment of young child sex abuse offenders

Boyd and Bromfield note that adolescence is a different developmental stage requiring treatment approaches different from adults: ‘the involvement of family in therapy is thought to be an important factor for the effective treatment of young people’.[133]

Sexual abuse by young people is harmful and needs active intervention if it is to stop quickly. The earlier the intervention, the less chance there is of the sexually abusive behaviour becoming an entrenched pattern and to minimise the harm to other potential victims.[134]

Boyd and Bromfield suggest that effective treatment of young sex abusers is certainly possible and multi-sectoral or multi-systemic approaches work best:

A recent Australian review of treatment outcomes commissioned by the New South Wales Department of Community Services found that the best responses are multi-systemic, rather than solely reliant on individual treatment models. Families, schools, child protection systems, juvenile justice systems and therapeutic treatment providers need to work collaboratively for the best outcomes.[135]

Blackley and Bartels agree:

... there is general acknowledgement that an ecological or multi-systemic approach to therapeutic treatment is most effective for reducing sexually abusive behaviours ... Multi-systemic therapy (MST) ... engages highly qualified therapists to work intensively with young people and their families, designing strengths-based interventions that use pragmatic family therapies and cognitive behavioural therapy... The ultimate goal of MST, however, and the one most credited with its success, is creating a context that supports adaptive and prosocial youth and parent behaviour.[136]

There are many benefits to providing treatment in the community rather than secure settings (Hunter et al. 2004). It allows for greater emphasis on an ecological model and increases the likelihood of familial involvement in treatment. There are also valid concerns regarding custodial placements for young people, due to their developmental vulnerabilities and potential for (re)traumatisation. Separation from society and family may further exacerbate attachment difficulties, while generating a sense of rejection, negative self-image and antisocial attitudes.[137]

Boyd and Bromfield note that early intervention seems to be key to stopping young offenders from continuing to abuse as adults:

Overall, the risk of young people sexually re-offending as adults appears to be low (9% in one study), but repeat offences as juveniles are more likely (25%). Significantly, the older the young man is when initially assessed, the greater the chance he will re-offend. Possibly because these young men have been offending for a longer period before being stopped, they have a more firmly established pattern of abuse - demonstrating the importance of intervening early.[138]

Proposed definitions inserted in the Crimes Act

Schedule 14—Definitions

The definitions are the same as were proposed in the 2017 Bill, except for some consequential addition of references to offences made necessary by the passing of the Combatting Child Sexual Exploitation Legislation Amendment Act 2019.

Commencement

Schedule 14 will commence on the day after Royal Assent.

Background

‘Commonwealth child sex offence’ is a defined term used throughout the Crimes Act:

Commonwealth child sex offence means:

(a)   an offence against any of the following provisions of the Criminal Code:

(i)            Division 272 (Child sex offences outside Australia);

(ii)           Division 273 (Offences involving child abuse material outside Australia);

(iia)         Division 273A (Possession of child‑like sex dolls etc.);

(iii)          Subdivisions B and C of Division 471 (which create offences relating to use of postal or similar services in connection with child abuse material and sexual activity involving children);

(iv)          Subdivisions D and F of Division 474 (which create offences relating to use of telecommunications in connection with child abuse material, sexual activity involving children and harm to children); or

(b)  an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence described in paragraph (a) of this definition; or

(c)  an offence against a provision described in paragraph (a) of this definition that is taken to have been committed because of section 11.2, 11.2A or 11.3 of the Criminal Code.^[139]

Key provisions

In order to refer to a different subset of offences, item 1 inserts three definitions in subsection 3(1) of the Crimes Act:

• proposed definition of ‘child sexual abuse offence’ underpins the operation of the mandatory minimum penalties in Schedule 6 and the presumption against bail in Schedule 7
• proposed definition of ‘Commonwealth child sexual abuse offence’ identifies the offences which are subject to mandatory minimum sentences for a second or subsequent offence and
• proposed definition of ‘State or Territory registrable child sex offence’ is intended to ensure that certain state and territory offences are captured as a ‘previous offence’ for the purposes of mandatory minimum penalties, presumption against bail and cumulative sentencing.[140]

The difference between a ‘Commonwealth child sex offence’ and ‘Commonwealth child sexual abuse offence’ is perhaps too subtle and has the potential to cause confusion.

Additional child sex abuse offences and broader application for existing offences

Schedule 4—Strengthening child sex offences

Schedule 4 has been substantively changed from the Schedule 4 presented in the 2017 Bill, including by the addition of another offence.

Commencement

Part 1 of Schedule 4 will commence on the day after Royal Assent.

Part 2 of Schedule 4 will commence immediately after the commencement of Part 1 of Schedule 4.[141]

Position of major interest groups

Schedule 4 provisions were generally supported by interest groups with some detailed comments on particular provisions.[142]

Clarify the definition of ‘engage in sexual activity’

A number of offences in the Criminal Code criminalise conduct in circumstances where a person ‘engages in sexual activity’. No change is proposed to the Criminal Code definition:

Engage in sexual activity: without limiting when a person engages in sexual activity, a person is taken to engage in sexual activity if the person is in the presence of another person (including by a means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.[143]

Subsection 272.9(1) contains an offence for engaging in sexual activity with a child outside Australia and subsection 272.13(1) contains an offence for engaging in sexual activity with a young person outside of Australia. Item 2 inserts a proposed note after subsection 272.9(1) to clarify that the definition of ‘engage in sexual activity’ includes being in the presence of another person (including by means of communication that allows the person to see or hear the other person) while the person engages in sexual activity. Item 5 inserts the same proposed note after subsection 272.13(1).

Two further notes are particularly directed at clarifying that the scope of the conduct captured by the offences includes live-streamed child abuse. Subsection 474.25A(1) contains an offence for engaging in sexual activity with a child using a carriage service. Item 25 inserts a proposed note after subsection 474.25A(1) to clarify that the offence covers a person using a carriage service to see or hear in ‘real time’ a person under 16 engaging in sexual activity; or to engage in sexual activity that is seen or heard by a person under 16 ‘in real time’.

Subsection 474.25A(2) contains an offence for causing a child to engage in sexual activity with another person using a carriage service. Item 26 inserts a proposed note after subsection 474.25A(2) to clarify that the offence covers causing a person under 16 years of age to engage in sexual activity that is seen or heard, in ‘real time’, by another person by using a carriage service, or to cause a person under 16 years of age to use a carriage service to see or hear, in ‘real time’, another person engage in sexual activity.

Additional circumstances of aggravated culpability

Sections 272.10 and 474.25B of the Criminal Code create aggravated offences where an underlying offence is committed and there are also identified circumstances about the offence that aggravate the culpability of the offender.

In general terms, the current circumstances of aggravation are:

• the child has a mental impairment at the time of the offence and/or
• the offender is in a position of trust or authority over the child.[144]

According to the Explanatory Memorandum, the Government is concerned by a disturbing trend in offending against children that increasingly includes severe levels of violence inflicted on the child victim alongside the sexual activity.[145] The Bill proposes two additional circumstances of aggravation:

• the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity (‘in connection with’ is intended to cover such treatment before or after the underlying offences and that is directly linked to the underlying offence) and/or
• the child dies as a result of physical harm suffered in connection with the sexual activity.[146]

The term ‘physical harm’ is already defined in the Dictionary to the Criminal Code:

Physical harm includes unconsciousness, pain, disfigurement, infection with a disease and any physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time).

Section 272.10 is an aggravated offence available as an alternative to an offence of sexual intercourse or sexual activity with a child outside Australia (sections 272.8 or 272.9) where certain aggravating circumstances exist. The aggravated offence currently carries a maximum of 25 years imprisonment. The amendments to be made by Schedule 5 would increase that penalty to life imprisonment.

Item 4 will repeal the existing paragraph 272.10(1)(b) and insert proposed paragraph 272.10(1)(b) which re-enacts the existing circumstances and adds two further circumstances of aggravation. These will apply to the underlying offences of sexual intercourse with a child outside Australia (section 272.8) and engaging in sexual activity with a child outside Australia (section 272.9). The additional aggravating circumstances are where:

• the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity or
• the child dies as a result of physical harm suffered in connection with the sexual activity.

Item 3 amends the heading of section 272.10 from ‘Aggravated offence—child with mental impairment or under care, supervision or authority of defendant’ to ‘Aggravated offence—sexual intercourse or other sexual activity with child outside Australia’.

The change ensures the heading covers the new circumstances. It also focuses the heading on the offence committed and the circumstances of aggravation rather than on the description of the victim.

Section 474.25B is an aggravated offence available as an alternative to an offence of using a carriage service to engage in sexual activity with a person under the age of 16 (section 474.25A) where certain aggravating circumstances exist. The aggravated offence currently carries a maximum of 25 years imprisonment which would be increased to 30 years by the Bill.

Item 29 will repeal the existing paragraph 474.25B(1)(b) and insert proposed paragraph 474.25B(1)(b) which re-enacts the existing circumstances and adds the two additional circumstances of aggravation. As with the above change, the additional aggravating circumstances are:

• the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity or
• the child dies as a result of physical harm suffered in connection with the sexual activity.

Background—New offences for ‘grooming’ third parties

The Bill proposes several new offences to deal with complex ‘grooming’ behaviour. As the Explanatory Memorandum points out:

“Grooming” is a complex behaviour used by perpetrators to gain access to victims through deception and manipulation. Perpetrators often employ “grooming” behaviours to both commit and conceal further offending against children, including offences involving sexual contact with the victim. The impact of “grooming” can be damaging and lifelong in its effect, likely because in establishing trust and normalising sexually harmful behaviour (as part of “grooming”) the perpetrator impacts the child victim’s psychosocial development.[147]

The Criminal Code already contains a number of offences related to ‘grooming’ a child; however, the new offences proposed in the Bill are intended to deal with ‘grooming’ of third parties to make it easier to engage in sexual activity with a child.

International obligations

Australia is a party to the Convention on the Rights of the Child (the Convention) and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (the Optional Protocol). Article 3(1) of the Optional Protocol requires that certain forms of child sex abuse be covered by the criminal law.[148] In its most recent comments on Australia’s implementation of the Convention and Optional Protocol, the UN Committee on the Rights of the Child urged Australia to:

(a) Define and criminalize child prostitution and child pornography (child sexual exploitation) for all children in accordance with articles 1, 2 and 3 of the Protocol, and harmonize legislation across its states and territories;

(b) Ensure that crimes under the Protocol are investigated, and perpetrators prosecuted and sanctioned, in addition to trafficking cases;

(c) Ensure that all children subject to any form of sexual exploitation, sale or trafficking, are treated as victims and not subject to criminal sanctions;

(d) Amend its legislation to exercise extraterritorial jurisdiction over sexual exploitation of all children under 18 years, including sexual exploitation in travel and tourism where child victims are between 16 and 18 years of age;

(e) Further strengthen its measures to combat and prevent sexual exploitation of children online, including through the criminalization of online grooming of children;

(f) Strengthen training programmes on the identification and referral of child victims of sale, sexual exploitation and trafficking.[149]

Section 272.15A—Grooming a third party to make it easier to engage in sexual activity with a child outside Australia

Section 272.15 currently makes it an offence to ‘groom’ a child to engage in sexual activity outside Australia. Item 6 inserts proposed section 272.15A to criminalise ‘grooming’ a third party to make it easier to engage in sexual activity with a child outside Australia.

The offence will apply where a person engages in conduct in relation to another person with the intention of making it easier to procure a child, who is, or who the person believes to be, under 16 years of age, to engage in sexual activity with the person or another person. Proposed paragraph 272.15A(1)(d) provides that the offence will apply when one or more of the following circumstances are met:

• the conduct occurs wholly or partly outside Australia
• the third party or the child (or both) were outside Australia when the conduct occurred or
• the conduct occurred wholly in Australia and both the third party and the child were in Australia when the conduct occurred.[150]

Absolute liability will apply to the physical element that the child referred to is under 16 years of age and the physical elements set out in subparagraph 272.15A(1)(d). The Explanatory Memorandum notes that ‘[t]his means that the prosecution will not be required to prove intention, knowledge, recklessness or negligence with respect to these elements’.[151]

The Bill proposes that Category A geographical jurisdiction will apply to the offence.[152] The Explanatory Memorandum notes:

Category A jurisdiction will mean that whether the conduct occurs in Australia or overseas, if the conduct constitutes an offence and the results of that conduct affect Australia, the person responsible is generally able to be prosecuted in Australia. Category A jurisdiction will also cover instances where an Australian citizen in another country engages in conduct that is an offence under section 272.15A, even if their conduct does not constitute an offence in that country and the result of that conduct does not affect Australia.[153]

The maximum penalty proposed is 15 years imprisonment.

Item 1 excludes this proposed offence from section 11.1 so attempting to ‘groom’ a third party to make it easier to engage in sexual activity with a child is not an offence. This is appropriate because the proposed offence is in the nature of an attempt to engage in sexual activity with a child outside Australia.

Defence based on belief about age

Section 272.16 provides for defences based on the accused person’s belief about age. Item 8 amends subsection 272.16(3) to include a reference to proposed section 272.15A. This has the effect that it is a defence to an offence under proposed section 272.15A if a defendant can prove that, at the time of the ‘grooming’ conduct, he or she believed that the child was at least 16. The burden of proving what he or she believed rests on the defendant.

Note that subsection 272.16(4) provides that the trier of fact may take into account whether the alleged belief was reasonable in the circumstances when deciding whether the defendant had the relevant belief.

Position of major interest groups

According to the LCA Committee Report:

Legal Aid NSW opposed [proposed section 272.15A] and argued it is unclear why the provision is necessary, and 'why "conduct in relation to a child", captured in the existing section 272.15 grooming offence, would not encompass engaging a third party'. Legal Aid NSW suggested that, should the amendment proceed, the maximum penalty should be 12 years' imprisonment or less, in line with section 272.15 of the Crimes Act and other NSW legislation.[154]

Section 471.25A—Using a postal service to groom a third party to make it easier to procure person under 16

Section 471.25 currently makes it an offence to use a postal or similar service to ‘groom’ persons under 16. Item 9 inserts proposed section 471.25A to cover using a postal or similar service to ‘groom’ another person to make it easier to procure persons under 16. This contains three offences:

• a sender (who must be over 18) causes an article to be carried by a postal or similar service to another person with the intention of making it easier to procure a child to engage in sexual activity (proposed subsection 471.25A(1))
• a sender causes an article to be carried by a postal or similar service to another person with the intention of making it easier to procure a child to engage in sexual activity with another person (proposed subsection 471.25A(2))
• a sender causes an article to be carried by a postal or similar service to another person with the intention of making it easier to procure a child to engage in sexual activity with another person and the sender intends that the sexual activity will take place in the presence of:
  • the sender or
  • another person who is, or who the sender believes to be, at least 18 (proposed subsection 471.25A(3)).[155]

As with the above offence, the Bill proposes that Category A geographical jurisdiction will apply to these offences.

The maximum penalty proposed for all three offences is 15 years imprisonment.

Impossibility of offence no bar to conviction—fictitious persons

Section 471.28 contains other provisions relating to offences in this subdivision. Item 16 inserts proposed subsection 471.28(2A) which provides, for the purposes of an offence against section 471.25A it does not matter that the recipient or the child is a fictitious person represented to the sender as a real person.[156]

Position of major interest groups

Legal Aid NSW expressed concern about the maximum penalties proposed for the offences inserted by item 9.[157]

Section 474.23A—facilitating an electronic service to commit an offence

Conduct in relation to an electronic service with the intention the electronic service be used to commit an offence

Section 474.22 currently makes it an offence to use a carriage service for child abuse material. Section 474.22A makes it an offence to possess or control child abuse material obtained or accessed using a carriage service. Section 474.23 makes it an offence to possess, control, produce, supply or obtain child abuse material for use through a carriage service. Item 24 inserts proposed section 474.23A to criminalise facilitating the electronic services which are used, or intended to be used, to commit the existing offences.

The term electronic service contained in proposed subsection 474.23A(4) is defined as a service a purpose of which is to:

• allow persons to access material using a carriage service or
• deliver material to persons having equipment appropriate for receiving that material, where the delivery of the service is by means of a carriage service.[158]

However, the definition excludes broadcasting services and datacasting services within the meaning of the Broadcasting Act 1992.

A person may commit an offence if they engage in conduct or assist with:

• creating, developing, altering or maintaining an electronic service
• controlling or moderating an electronic service or
• making available, advertising or promoting an electronic service.

The person must have the intention that the electronic service will be used by that person or another person in committing, or facilitating the commission of, an offence against section 474.22 or 474.23.[159]

The maximum penalty proposed is 20 years imprisonment. The Explanatory Memorandum states that the higher penalty for this offence reflects the higher level of culpability involved in facilitating the offending of others, including the promotion and creation of child abuse material.[160]

It is not necessary for the electronic service to be in use or even operational at the time of the offence. The conduct does not have to use a carriage service to facilitate the electronic service. The nexus to telecommunications is that the electronic service must be able to be accessed or used to deliver content by means of a carriage service, whether at the time of offending or in the future.[161]

An offence against section 474.23A can be committed even if commission of a section 474.22 or section 474.23 offence would be impossible at that point in time. According to the Explanatory Memorandum, the offence is intended to:

... address a gap in the law which means that individuals cannot be prosecuted for the provision of electronic services to facilitate dealings with child abuse material unless it can be proven that they are also accessing child abuse material or encouraging others to do so. Where this cannot be proven, there is limited criminal recourse against the individual.[162]

The Bill proposes that Category A geographical jurisdiction will apply to the offence.[163]

Part 2 of Schedule 4—Amendments consequential to passing of Combatting Child Sexual Exploitation Legislation Amendment Act 2019

Items 44 and 45 make consequential amendments to include reference within relevant Criminal Code provisions to the offence in section 474.22A, which was created by the Combatting Child Sexual Exploitation Legislation Amendment Act 2019. The amendments expand the offence in proposed section 474.23A of the Criminal Code by including a reference to the section 474.22A offence as one of the offences that the person may have the intention of using the electronic service to commit, or facilitate the commission of.

Item 46 makes consequential changes to apply existing defences in respect of child abuse material in section 474.24 to the offence in proposed section 474.23A of the Criminal Code.

Schedule 5—Increased penalties

Schedule 5 is similar to Schedule 5 in the 2017 Bill; however, additional offences have been listed with proposed increased penalties.

Commencement

Schedule 5 will commence on the day after Royal Assent.

Background

Purposes or goals of sentencing

Sentencing of offenders has a number of goals or purposes which have developed through both common law and statute. They are often now expressed in statute. The central sentencing principles for federal offenders are set out in Part IB of the Crimes Act, and particularly in section 16A(1) of the Act:[164]

In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.[165]

Other jurisdictions have incorporated more specific principles. For example, in Victoria:

Section 5(1) of the Sentencing Act 1991 sets out the only purposes of sentencing an adult in Victoria. These purposes are:

• just punishment – to punish the offender to an extent and in a way that is just in all the circumstances
• deterrence – to deter the offender (specific deterrence) or other people (general deterrence) from committing offences of the same or a similar character
• rehabilitation – to establish conditions that the court considers will enable the offender’s rehabilitation
• denunciation – to denounce, condemn, or censure the type of conduct engaged in by the offender
• community protection – to protect the community from the offender
• a combination of two or more of these purposes.
• For young offenders, rehabilitation is the principal consideration in sentencing.[166] 

Commonwealth sentencing law and judicial discretion

Parliament usually sets a maximum penalty that may be imposed when a person is convicted of a criminal offence. The maximum is based on the Parliament’s assessment of the relative severity of the offence. A court will then consider a variety of matters when imposing a sentence. However, the sentencing judge does not have complete freedom to set any sentence below the prescribed maximum: the judge’s discretion is restricted by sentencing law.

Sentencing law identifies various factors judges must consider and assists them in choosing an appropriate sentence. The matters a court must generally have regard to when passing sentence for a federal offence are contained in subsection 16A(2) of the Crimes Act. Changes to these sentencing factors proposed by the Bill are marked in colour, italics and strikethrough in the text.

(2)  In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:                              (a)   the nature and circumstances of the offence;                              (b)   other offences (if any) that are required or permitted to be taken into account;                              (c)   if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;                              (d)   the personal circumstances of any victim of the offence;                              (e)   any injury, loss or damage resulting from the offence;                            (ea)   if an individual who is a victim of the offence has suffered harm as a result of the offence—any victim impact statement for the victim;                               (f)   the degree to which the person has shown contrition for the offence:                                         (i)   by taking action to make reparation for any injury, loss or damage resulting from the offence; or                                         (ii)   in any other manner;
(fa)   the extent to which the person has failed to comply with:                                         (i)   any order under subsection 23CD(1) of the Federal Court of Australia Act 1976; or                                         (ii)   any obligation under a law of the Commonwealth; or                                         (iii)   any obligation under a law of the State or Territory applying under subsection 68(1) of the Judiciary Act 1903;                                      about pre‑trial disclosure, or ongoing disclosure, in proceedings relating to the offence;
(g)   if the person has pleaded guilty to the charge in respect of the offence—that fact;                                         (g)   if the person has pleaded guilty to the charge in respect of the offence:                                         (i)   that fact; and                                         (ii)   the timing of the plea; and                                         (iii)   the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;	Schedule 8 Item 1
(h)   the degree to which the person has co-operated cooperated with law enforcement agencies in the investigation of the offence or of other offences;                               (j)   the deterrent effect that any sentence or order under consideration may have on the person;                             (ja)   the deterrent effect that any sentence or order under consideration may have on other persons;                              (k)   the need to ensure that the person is adequately punished for the offence;                             (m)   the character, antecedents, age, means and physical or mental condition of the person;	Schedule 6, Part 2, Item 6
(ma)   if the person’s standing in the community was used by the person to aid in the commission of the offence—that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;	Schedule 8 Item 2
(n)   the prospect of rehabilitation of the person;                              (p)   the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants.
(2AAA)   In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:                              (a)   when making an order—to impose any conditions about rehabilitation or treatment options;                              (b)   in determining the length of any sentence or non‑parole period—to include sufficient time for the person to undertake a rehabilitation program.	Schedule 8 Item 3
(2A)   However, the court must not take into account under subsection (1) or (2), other than paragraph (2)(ma), any form of customary law or cultural practice as a reason for:                              (a)   excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or                              (b)   aggravating the seriousness of the criminal behaviour to which the offence relates.	Schedule 8 Item 4

Table of increased penalties proposed in Schedule 5

Each item in Schedule 5 will increase the existing penalties for a child sex offence, as set out in Table 1.

Table 1: changes to penalties proposed in Schedule 5

	Criminal Code Provision	Current maximum penalty	Proposed penalty
Item 1	272.8(1) Engaging in sexual intercourse with child outside Australia	20 years	25 years
Item 2	272.8(2) Causing child to engage in sexual intercourse in presence of defendant, outside Australia	20 years	25 years
Item 3	272.9(1) Engaging in sexual activity with child outside Australia	15 years	20 years
Item 4	272.9(2) Causing child to engage in sexual activity in presence of defendant, outside Australia	15 years	20 years
Item 5	272.10(1) Aggravated offence – offence under section 272.8 or 272.9 where the child has a mental impairment or is under care, supervision or authority of the defendant; where the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity; or the child dies as a result of physical harm suffered in connection with the sexual activity.[167]	25 years	Life
Item 6	272.11(1) Persistent sexual abuse of child outside Australia	25 years	30 years
Item 7	272.15(1) “Grooming” child to engage in sexual activity outside Australia	12 years	15 years
Item 8	272.18(1) Benefiting from offence against  Division 272 of the Criminal Code (child sex offences outside Australia)	20 years	25 years
Item 9	272.19(1) Encouraging offence against  Division 272	20 years	25 years
Item 10	273.7(1) Aggravated offence – offence under section 273.6 (possessing, controlling, producing, distributing or obtaining child abuse material outside Australia) involving conduct on three or more occasions and two or more people	25 years	30 years
Item 11	471.22(1) Aggravated Offence – offence under section 471.19 (using a postal or similar service for child abuse material) or section 471.20 (possessing, controlling, producing, distributing or obtaining child abuse material through a postal or similar service) involving conduct on three or more occasions and two or more people	25 years	30 years
Item 12	471.25(1) Using a postal or similar service to “groom” persons under 16 * Sender (offender) must be at least 18.	12 years	15 years
Item 13	471.25(2) Using a postal or similar service to “groom” persons under 16 to make it easier to procure the child to engage in sexual activity with another person * Sender (offender) must believe that the person they conduct the grooming for is at least 18; there is no requirement that sender be at least 18.	12 years	15 years
Item 14	471.26(1) Using a postal or similar service to send indecent material to person under 16 * Sender (offender) must be at least 18.	7 years	10 years
Item 15	474.24A(1) Aggravated offence – offence under section 474.22 (using a carriage service for child abuse material), section 474.22A (possessing or controlling child abuse material obtained or accessed using a carriage service) or section 474.23 (possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service) involving three or more occasions and two or more people	25 years	30 years
Item 16	474.25A(1) engaging in sexual activity with child using a carriage service * Offender must be at least 18.	15 years	20 years
Item 17	474.25A(2) causing child to engage in sexual activity with another person (the participant) * The participant must be at least 18 years of age. There is no requirement that the offender be at least 18.	15 years	20 years
Item 18	474.25B(1) Aggravated offence - offence under section 474.25A where the child has a mental impairment or is under the care, supervision or authority of defendant; where the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity; or the child dies as a result of physical harm suffered in connection with the sexual activity.[168]	25 years	30 years
Item 19	474.27(1) using a carriage service to “groom” persons under 16 years of age * Sender (offender) must be at least 18.	12 years	15 years
Item 20	474.27(2) using a carriage service to “groom” persons under 16 years of age to make it easier to procure the child to engage in sexual activity with another person * Sender (offender) must believe that the person they conduct the grooming for is at least 18; there is no requirement that sender be at least 18.	12 years	15 years
Item 21	474.27A(1) Using carriage service to transmit indecent communication to person under 16 years of age. * Sender (offender) must be at least 18.	7 years	10 years

Source: Parliamentary Library, 2019 (H Maclean).

Position of major interest groups

There were a variety of views among those who made submissions to the LCA Committee inquiry. Knowmore supported increased penalties as a way of communicating community expectations to the judiciary. The Law Council considered further information was required to demonstrate the increase to maximum sentences 'has been done in a principled manner'. Legal Aid NSW opposed the increased penalties.[169]

Special sentencing considerations for young child sex abuse offenders

There are no special exclusions or reductions for young people in Schedule 5. However, they may be unnecessary because of the effect of other portions of the Crimes Act.

Sentencing for federal young offenders is explained in Sentencing of Federal Offenders in Australia: A Guide for Practitioners published by the Commonwealth Director of Public Prosecutions:

Section 20C(1) of the Crimes Act 1914 (Cth) makes general provision relating to dealing with young offenders against Commonwealth law. It provides:

(1)   A child or young person who, in a State or Territory, is charged with or convicted of an offence against a law of the Commonwealth may be tried, punished or otherwise dealt with as if the offence were an offence against a law of the State or Territory.

...

Nothing in s 20C purports to exclude or override the application of other provisions of Part IB of the Crimes Act 1914 which apply to the sentencing of federal offenders generally; nor are those other provisions expressed to be subject to s 20C ... If a Commonwealth statute prescribes that an offence is punishable by imprisonment or by a fine, those penalties also apply.[170] 

State or territory laws will not apply under section 20C(1) to the extent that they are inconsistent with Commonwealth laws which apply generally to the sentencing of federal offenders.[171] Some state and territory laws specify that in sentencing a child or young person, a court must not have regard to particular considerations, such as the need for general or specific deterrence; however, such provisions may be irreconcilable with section 16A of the Crimes Act. In sentencing a federal offender the court must have regard to the need for general or specific deterrence.[172]

If a state and territory law operates as a self-contained code, directed exclusively at consideration of the effect of the proposed sentence on the child, it may also be inconsistent with section 16A. This may have little practical significance because, in determining the weight to be given to general and specific deterrence and rehabilitation, the sentencing court is required to take into account the age of the offender:[173]

Paragraph (m) of s 16A(2) requires the sentencing court to have regard to “the character, antecedents, age, means and physical or mental condition” of the offender, so far as they are “relevant and known to the court”.[174] 

In sentencing young offenders, courts should generally give more weight to rehabilitation, and less weight to general deterrence and denunciation, as considerations in sentencing, principally because more severe punishment may in fact lead to further offending. Young offenders are also commonly more impressionable, and more impulsive ...[175]

The seriousness of the offence will reduce the mitigation of youth

However, the weight to be given to the youth of an offender, as a mitigating circumstance, generally is reduced where the offence committed by the offender is serious. In such cases, it is recognised that the youth of the offender, while still relevant as a mitigating circumstance, must to a material degree give way to the requirements of general deterrence, specific deterrence and denunciation. The youth of an offender has been accorded less significance in sentencing for serious drug offences, for terrorism offences, and for other offences which have the hallmarks of adult offending ...[176]

Choice of child or adult court for trial will have a significant effect on sentencing

The range of sentencing options available in sentencing a young offender may be significantly affected by whether or not the proceedings are heard and determined in a State or Territory court with specialist jurisdiction in relation to children and young offenders.  Such courts typically have no power, or very limited power, to sentence an offender to imprisonment, and may only sentence an offender to a form of detention for a limited period and in limited circumstances.  Limitations of this kind may, in serious cases, warrant the offender being dealt with as an adult.[177]

Blackley and Bartels find that most courts do focus on rehabilitation when sentencing young sex offenders, even in serious cases of sexual violence. They observe that offenders are almost always ordered to undergo specialist treatment for sexually abusive behaviours:[178]

Judge Robertson, former President of the Children’s Court of Queensland, has stated that ‘in the most difficult of all tasks facing a Judge, the sentencing of offenders, the sentencing of youthful offenders for serious sexual crimes and other crimes of violence stands out as one of the most challenging’ (quoted in Nisbet 2012: 3). Judicial officers appear to struggle to balance the youth of the offender with the gravity of their crime. As the following cases will show, judicial officers take into account a range of factors when determining an appropriate sentence, including the age and maturity of both offender and victim, the offender’s level of remorse and their potential for rehabilitation.

The case of OH v Driessen (No. 2) [2015] ACTSC 354 is a recent example of the court taking an individualised approach to justice in its determination that, despite the seriousness of the offence, the offender’s circumstances did not warrant a sentence of severity. OH was convicted of engaging in sexual intercourse with a person under the age of 10 years, a crime which carries a maximum penalty of 17 years’ imprisonment (Crimes Act 1900 (ACT) s 55(1)). He was 13 years old at the time of the offence and the victim was aged seven. In sentencing OH to a 12-month good behaviour bond with community supervision and therapeutic treatment, Acting Chief Justice Refshauge noted the offender’s prospects for rehabilitation, his voluntary attendance at treatment, and his positive engagement with education and employment (2015: [22]–[33]).

Similarly, in Western Australia v “A Child” [2007] WASCA 115, the Western Australian Court of Appeal upheld an 18-month intensive youth supervision order for an offender who, when aged 14, was convicted of indecent dealing and sexual penetration of a child under 13 years of age in respect of a six-year-old victim. The court emphasised rehabilitation in its decision to grant a non-custodial sentence, citing the offender’s “adolescence, his significant cognitive limitations ... lack of any prior sexual offending [and] the continuing support and influence of his mother” (2007: [21]).[179]

Special sentencing considerations for Aboriginal and Torres Strait Islanders

The ALRC Report, Pathways to Justice, examined the incarceration rate of Aboriginal and Torres Strait Islander people:

Although Aboriginal and Torres Strait Islander adults make up around 2% of the national population, they constitute 27% of the national prison population... Over-representation is both a persistent and growing problem—Aboriginal and Torres Strait Islander incarceration rates increased 41% between 2006 and 2016, and the gap between Aboriginal and Torres Strait Islander and non-Indigenous imprisonment rates over that decade widened.[180]

... it has been estimated that the total justice system costs of Aboriginal and Torres Strait Islander incarceration in 2016 were $3.9 billion. ... As well as the cost of imprisonment to the State, incarceration can also have a broader social cost, particularly when concentrated in a particular community.

... Given the significant and growing economic and social costs of incarceration, the ALRC suggests that there is a compelling case for Australian governments collectively to invest in developing appropriate and more effective alternatives to imprisonment for Aboriginal and Torres Strait Islander people.[181]

The Bill does not contain special provisions for Aboriginal and Torres Strait Islander persons. The Explanatory Memorandum does not discuss the issue.

Schedule 6—Minimum sentences

The substantive provisions of Schedule 6 in Part 1 are largely unchanged from the 2017 Bill, however Parts 2 and 3 add some technical and consequential amendments.

Commencement

Parts 1 and 2 of Schedule 6 will commence on the day after Royal Assent.

Part 3, Divisions 1 and 2 of Schedule 6 will commence immediately after the commencement of Parts 1 and 2 of Schedule 6.[182]

Background

Do these provisions amount to mandatory sentencing?

Mandatory sentencing laws specify a minimum penalty or a fixed penalty that a judge must impose in relation to a particular offence or type of offender (for example a repeat offender). Minimum penalties are much more common than fixed penalties.[183]

Mandatory sentencing laws have been contrasted with presumptive sentencing laws. The Victorian Sentencing Advisory Council explained there is a spectrum of the level of prescription by Parliament:

A presumptive sentencing system is one in which parliament prescribes both a sanction type and a minimum level of severity for a given offence which the court must impose unless there is a demonstrable reason—which may be broadly or narrowly defined—justifying a departure from this. Presumptive minimum sentencing schemes can differ in terms of their level of prescription, ranging from wholly voluntary guidelines to what effectively amount to mandatory sentencing regimes. A presumptive minimum sentence scheme has been adopted in New South Wales for the imposition of non-parole periods. Many of the justifications for and criticisms of mandatory sentencing similarly apply to presumptive minimums.[185]

The Law Council of Australia similarly comments:

An attenuated form of mandatory sentencing includes offences with presumptive minimum sentences. A presumptive sentencing system is where parliament prescribes a minimum penalty that must be imposed unless the judiciary determines, in accordance with the legislation and the facts of the case, that a departure is justified. That is, the legislation will stipulate the grounds on which a court may rebut the presumption. These grounds can be broad or narrowly defined. Some mandatory sentencing schemes also make provision for the court to depart from the mandatory minimum sentence if ‘exceptional circumstances’ are established.[186]

The Bill uses the term ‘minimum penalties’, while the Explanatory Memorandum refers to ‘mandatory’ penalties. It is probably most accurate to describe the penalties prescribed in Schedule 6 as presumptive minimum sentences.

In its Pathways to Justice report, the ALRC stated:

Presumptive minimum sentences can have a similar effect to mandatory minimum sentence [sic], so much so, that stakeholders to this Inquiry generally grouped issues relating to mandatory and presumptive sentencing together. While mandatory sentencing provisions tend to entirely limit judicial discretion in relation to sentencing, offences with presumptive penalties allow for judicial discretion in sentencing, but only if ‘there is a demonstrable reason—which may be broadly or narrowly defined’.[187]

Arguments in favour of and against mandatory sentencing

The ALRC summarised the arguments in favour of and against mandatory and presumptive sentencing:

• The arguments put in favour of mandatory or presumptive sentencing provisions include that they:
• promote consistency in sentencing;
• deter individuals from offending;
• denounce the proscribed conduct;
• ensure appropriate punishment of the offender; and
• protect the community through incapacitation of the offender.

...

Stakeholders also noted that mandatory or presumptive penalty provisions:

• are ineffective—there is little evidence that mandatory sentences act as deterrents;
• constrain the exercise of judicial discretion;
• heighten the impact of charging decisions that are within the discretion of police and prosecutors;
• contradict the principles of proportionality and ‘imprisonment as a last resort’; and
• reduce incentives to enter a plea of guilty, resulting in increased workloads for the courts.[188]

The ALRC noted the comments of Mildren J in the NT Supreme Court matter of Trennery v Bradley where he described prescribed mandatory minimum sentences as the ‘very antithesis of just sentences’:

... if a court thinks that a proper just sentence is the prescribed minimum or more, the minimum prescribed penalty is unnecessary. It therefore follows that the sole purpose of a prescribed minimum mandatory sentencing regime is to require sentencers to impose heavier sentences than would be proper according to the justice of the case. [189]

The Law Council of Australia has published a policy discussion paper, Mandatory Sentencing, which considers the range of arguments for and against mandatory sentencing in more detail.

Low levels of public knowledge reduce effectiveness of deterrence and denunciation

The goals most often cited as justification for mandatory sentencing are deterrence (discouraging people from committing crime) and denunciation (public condemnation of those committing crime).

Academic Julian Roberts argues that broad public knowledge about the particular mandatory sentence is critical to whether deterrence and denunciation can be achieved:

Deterrence advocates would argue that for potential offenders to be deterred, penalties must be certain, swift, and severe. Certainty and [speed] are hard to achieve in light of low rates of arrest and the glacially slow pace of criminal proceedings in overburdened court systems. Severity, on the other hand, can be achieved by a stroke of the legislative pen, or so it might seem, hence the attraction of severe mandatory terms of imprisonment. But potential offenders will be deterred only by known penalties. It is important, therefore, from the perspective of deterrence theory, to know something about public knowledge of mandatory sentencing laws.[190]

...

If legislators hope to achieve denunciation of a particular crime by imposing a harsh, mandatory sentence on culpable offenders, this can only be achieved if the community is aware that a denunciatory sentence exists and is actually imposed. Otherwise, denunciation takes place only in the mind of the legislator ... The Canadian Sentencing Commission (1987) made this point when it noted, ‘The degree to which the goal of denunciation can be achieved is dependent upon the publicity of the denunciation’. In light of the fact that little media attention is paid to most sentencing decisions, it is hard to imagine much denunciation is achieved through such coverage.[191]

Roberts found that surveys in several countries including Canada and Britain have shown that the public actually knows little about maximum sentences, alternatives to prison, the rate at which people reoffend after leaving prison, sentencing patterns or any other aspect of the sentencing process.[192]

There is a further problem in that people with a mental illness or intellectual impairment may have a limited ability to understand the wrongfulness of their actions or have a limited ability to control them. Deterrence is not a relevant goal for them.[193]

Lack of evidence of effectiveness of mandatory sentencing

In 1990, leading US researcher Michael Tonry conducted a review of the results of decades of research evaluating the effectiveness of mandatory minimum drug and firearm laws. Tonry concluded:

Mandatory penalties do not work. The record is clear from research in the 1950s, the 1970s, the 1980s, and thanks to the US Sentencing Commission, the 1990s that mandatory penalty laws shift power from judges to prosecutors, meet with widespread circumvention, produce dislocations in case processing, and too often result in imposition of penalties that everyone involved believes to be unduly harsh. From research in the 1970s and 1980s, the weight of the evidence clearly shows that enactment of mandatory penalties has either no demonstrable marginal deterrent effects or short terms effects that rapidly waste away.[194]

Lexi Lachal of the Aboriginal Legal Service of WA argues:[195]

The rationale for mandatory sentencing is flawed. It rests on the assumption that a custodial sentence will be an effective deterrent to future offending ... introducing mandatory sentencing for burglary offences has done little to reduce the rates of home burglaries in Western Australia. Statistics show rates have remained steady since 2003/2004 up until last year.[196] A similar finding was made in 2001 by a public report into the legislation by the University of Western Australia’s Crime Research Centre.[197]

Objections to mandatory sentencing in context of child sex offences

The Tasmanian Sentencing Advisory Council produced a detailed report in September 2016 specifically focussed on Mandatory Sentencing for Serious Sex Offences Against Children (Final Report no. 7). In the Executive Summary to the report, the Council explained:

As part of its consideration of the implementation of a mandatory minimum sentencing scheme as requested by the terms of reference, the Council has identified objections to the implementation of the scheme. These are that:

1. mandatory minimum sentences provide an incomplete guidance system to the courts;
2. mandatory minimum sentences may lead to unrealistic expectations in the community that changes to sentencing policy will deter potential offenders when there is no evidence to suggest that increased penalty levels act as a deterrent;
3. mandatory minimum sentences may reduce the incentive to enter a plea of guilty;
4. mandatory minimum sentences reduce transparency and consistency because discretion is transferred from judges to prosecutors;
5. mandatory minimum sentences will result in significant financial costs; and
6. that it may be prudent to wait until the Supreme Court has had an opportunity to respond to the significant changes in sentencing practice resulting from the government’s proposed sentencing reforms. The Council also notes that an examination of recent sentencing practice reveals a change in judicial attitudes to (and an increase in the sentences imposed on) those who commit serious sexual offences against children.

After consideration of these concerns, and as a result of the process of conceptualising the principles that should guide the introduction of a mandatory minimum sentencing scheme, the Council’s view remains that mandatory sentencing is inherently flawed. The Council has grave concerns that the introduction of mandatory minimum sentencing for sexual offences in Tasmania will create injustice by unduly fettering judicial discretion.

Accordingly, the Council reiterates its previous recommendation that mandatory sentencing not be introduced in Tasmania.

This should not be taken to mean that Council considers that sexual offences committed against children are not serious or that serious sex offenders ought not to receive appropriate sentences. Instead, the Council’s view is that the introduction of mandatory minimum sentences will create unjustified unfairness without achieving its stated aims of deterring offenders and increasing transparency.[198]

Key provision: Minimum sentence—serious Commonwealth child sex offences

Item 2 will insert presumptive minimum sentences for offences classified as serious Commonwealth child sex offences and to all child sex offences where the offence is a second or subsequent offence.

AGD and DHA explained to the LCA Committee that for all offences that attract a mandatory minimum sentence, the sentence has been calculated in the bill at 25 per cent of the maximum penalty for the offence.[199]

Proposed section 16AAA provides that if a person is convicted of a listed offence, the court must impose at least the listed minimum penalty.

Table 2: minimum sentences prescribed by proposed section 16AAA

Item	Criminal Code offence provision	Maximum sentence (after Schedule 5 amendments)	Proposed minimum sentence
1	Subsection 272.8(1)    (engaging in sexual intercourse with child outside Australia)	20 years (25 years)	6 years
2	Subsection 272.8(2)    (causing child to engage in sexual intercourse in presence of defendant, outside Australia)	20 years (25 years)	6 years
3	Subsection 272.9(1)    (engaging in sexual activity with child outside Australia)	15 years (20 years)	5 years
4	Subsection 272.9(2)    (causing child to engage in sexual activity in presence of defendant, outside Australia)	15 years (20 years)	5 years
5	Section 272.10    (aggravated offence–offence under section 272.8 or 272.9 where the child has a mental impairment or is under care, supervision or authority of the defendant; where the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity; or the child dies as a result of physical harm suffered in connection with the sexual activity[200])	25 years (life imprisonment)	7 years
6	Section 272.11    (persistent sexual abuse of child outside Australia)	25 years (30 years)	7 years
7	Section 272.18   (benefiting from offence against Division 272 of the Criminal Code (child sex offences outside Australia))	20 years (25 years)	6 years
8	Section 272.19    (encouraging offence against Division 272 of the Criminal Code)	20 years (25 years)	6 years
9	Section 273.7    (aggravated offence – offence under section 273.6 (possessing, controlling, producing, distributing or obtaining child abuse material outside Australia) involving conduct on three or more occasions and two or more people)	25 years (30 years)	7 years
10	Section 471.22    (aggravated offence – offence under section 471.19 (using a postal or similar service for child abuse material) or section 471.20 (possessing, controlling, producing, distributing or obtaining child abuse material through a postal or similar service) involving conduct on three or more occasions and two or more people)	25 years (30 years)	7 years
11	Section 474.23A    (creating, developing, altering, maintaining, controlling etc an electronic service used for child abuse material)[201]	20 years	5 years
12	Section 474.24A    (aggravated offence – offence under section 474.22 (using a carriage service for child abuse material), section 474.22A (possessing or controlling child abuse material obtained or accessed using a carriage service) or section 474.23 (possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service) involving three or more occasions and two or more people)	25 years (30 years)	7 years
13	Subsection 474.25A(1)    (engaging in sexual activity with child using a carriage service)	15 years (20 years)	5 years
14	Subsection 474.25A(2)    (causing child to engage in sexual activity with another person)	15 years (20 years)	5 years
15	Section 474.25B    (aggravated offence—offence under section 474.25A where the child has a mental impairment or is under care, supervision or authority of the defendant; where the child is subjected to cruel, inhuman or degrading treatment in connection with the sexual activity; or the child dies as a result of physical harm suffered in connection with the sexual activity[202])	25 years (30 years)	7 years

Source: Parliamentary Library

Key provision: Minimum sentence only when sentencing for a second or subsequent offence

Proposed section 16AAB provides that if a person is convicted of a Commonwealth child sexual abuse offence and the person has previously been convicted of a child sexual abuse offence (which includes a state or territory offence), the court must impose at least the listed minimum penalty.

Note that the offences listed in proposed section 16AAB are not the same as those listed in proposed section 16AAA which only lists the more serious child sex offences.

Table 3: minimum sentences for second or subsequent offence prescribed by proposed section 16AAB

Item	Criminal Code offence provision	Maximum sentence (after Schedule 5 amendments)	Proposed minimum sentence
1	Subsection 272.12(1)    (sexual intercourse with young person outside of Australia where offender in position of trust).	10 years	3 years
2	Subsection 272.12(2)    (causing a young person to engage in sexual intercourse in the presence of the offender outside of Australia where offender in position of trust)	10 years	3 years
3	Subsection 272.13(1)    (sexual activity with young person outside of Australia where offender in position of trust)	7 years	2 years
4	Subsection 272.13(2)    (causing a young person to engage in sexual intercourse in the presence of the offender outside of Australia where offender in position of trust)	7 years	2 years
5	Subsection 272.14(1)    (procuring child to engage in sexual activity outside Australia)	15 years	4 years
6	Subsection 272.15(1)    (“grooming” child to engage in sexual activity outside Australia)	12 years (15 years)	4 years
7	Proposed subsection 272.15A(1)    (“grooming” person to facilitate sexual activity with a child outside Australia)[203]	15 years	4 years
8	Subsection 272.20(1)    (preparing or planning for an offence against Division 272 of the Criminal Code (child sex offences outside Australia))	10 years	3 years
9	Subsection 272.20(2)    (doing an act with the intention of preparing or planning for an offence against Division 272)	5 years	1 year
10	Subsection 273.6(1)    (possessing, controlling, producing, distributing or obtaining child abuse material outside Australia)	15 years	4 years
11	Subsection 471.19(1)    (using a postal or similar service for child abuse material)	15 years	4 years
12	Subsection 471.19(2)    (requesting a person to use a postal or similar service for child abuse material).	15 years	4 years
13	Subsection 471.20(1)   (possessing, controlling, producing, supplying or obtaining child abuse material for use through a postal or similar service)	15 years	4 years
14	Subsection 471.24(1)   (using a postal or similar service to procure persons under 16)	15 years	4 years
15	Subsection 471.24(2)   (using a postal or similar service to procure persons under 16)	15 years	4 years
16	Subsection 471.24(3)   (using a postal or similar service to procure persons under 16)	15 years	4 years
17	Subsection 471.25(1)   (using a postal or similar service to “groom” persons under 16)	12 years (15 years)	4 years
18	Subsection 471.25(2)   (using a postal or similar service to “groom” persons under 16)	12 years (15 years)	4 years
19	Subsection 471.25(3)   (using a postal or similar service to “groom” persons under 16)	15 years	4 years
20	Proposed subsection 471.25A(1)   (using a postal or similar service to “groom” another person to make it easier to procure persons under 16)[204]	15 years	4 years
21	Proposed subsection 471.25A(2)   (using a postal or similar service to “groom” another person to make it easier to procure persons under 16)[205]	15 years	4 years
22	Proposed subsection 471.25A(3) (using a postal or similar service to “groom” another person to make it easier to procure persons under 16)[206]	15 years	4 years
23	Subsection 471.26(1)   (using a postal or similar service to send indecent material to person under 16)	7 years (10 years)	3 years
24	Subsection 474.22(1)   (using a carriage service for child abuse material)	15 years	4 years
25	Subsection 474.23(1) (possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service)	15 years	4 years
26	Subsection 474.26(1)   (using a carriage service to procure persons under 16 years of age)	15 years	4 years
27	Subsection 474.26(2)   (using a carriage service to procure persons under 16 years of age)	15 years	4 years
28	Subsection 474.26(3)   (using a carriage service to procure persons under 16 years of age)	15 years	4 years
29	Subsection 474.27(1)   (using a carriage service to “groom” persons under 16)	12 years (15 years)	4 years
30	Subsection  474.27(2)   (using a carriage service to “groom” persons under 16)	12 years (15 years)	4 years
31	Subsection  474.27(3)   (using a carriage service to “groom” persons under 16)	15 years	4 years
32	Proposed subsection  474.27AA(1) (using a carriage service to “groom” another person to make it easier to procure persons under 16)[207]	15 years	4 years
33	Proposed subsection  474.27AA(2)   (using a carriage service to “groom” another person to make it easier to procure persons under 16)[208]	15 years	4 years
34	Proposed subsection  474.27AA(3)   (using a carriage service to “groom” another person to make it easier to procure persons under 16)[209]	15 years	4 years
35	Subsection 474.27A(1)   (using a carriage service to transmit indecent communication to person under 16 years of age)	7 years (10 years)	3 years

Source: Parliamentary Library

Exclusions and reductions

The phrase ‘the court must impose’ in proposed sections 16AAA and 16AAB is subject to the operation of proposed section 16AAC which provides for exclusions from the minimum penalty and reductions in the minimum penalty.

Proposed subsection 16AAC(1) excludes a person who was aged under 18 years when the offence was committed from the minimum penalties listed in proposed section 16AAA and subsection 16AAB(2).

Proposed subsection 16AAC(2) provides for reduction of the minimum penalty if:

• an offender pleads guilty or
• the offender cooperated with law enforcement agencies.

Proposed subsection 16AAC(3) outlines the scope of the sentence reductions that the court may apply.

Comments from Parliamentary Committees

The Scrutiny Committee expressed a scrutiny concern about Schedule 6. It drew the attention of the Senate to the appropriateness of setting mandatory minimum sentences, which necessarily limits judicial discretion:

... the committee has consistently noted that mandatory penalties necessarily undermine the discretion of judges to ensure that penalties imposed are proportionate in light of the individual circumstances of particular cases. While a court retains a discretion as to the non-parole period, a mandatory minimum sentence still requires that a person be subject to a penalty for that period (either in prison or subject to parole conditions), and sentencing principles generally provide that a non-parole period is to be in proportion to the head sentence[210]

The PJCHR found there is a risk that the mandatory minimum sentencing provisions in Schedule 6 of the Bill may operate in ‘individual cases in a manner which is incompatible with the right to liberty and the right to be free from arbitrary detention’ because:[211]

• some sentencing discretion is retained by the court as they are able to set the minimum NPP, however it is ‘significantly limited’
• the grant of parole after a prisoner has served the minimum sentence is a matter of discretion
• although the court can apply certain discounts ‘it is unclear that the courts will be able to take fully into account the particular circumstances of the offence and the offender in determining an appropriate sentence’.[212]

Comments from major interest groups

A number of submitters to the LCA Committee opposed the proposed amendments in Schedule 6 as a matter of fundamental legal principle and for the reasons set out below. The Centre for Crime, Law and Justice (CCLJ) at the University of NSW stated ‘[t]here is a strong body of research and scholarly literature which opposes the use of mandatory sentencing’.[213]

Mandatory sentencing may not achieve its objectives

The Australian Lawyers Alliance, Knowmore, SASS, CCLJ and the Synod of Victoria and Tasmania, Uniting Church, questioned whether there was sufficient evidence to establish that mandatory sentencing was effective. Some of those submissions also referred to the work of other bodies that suggested mandatory sentencing was unlikely to be effective in deterring crime, including: the Royal Commission, the Victorian Sentencing Advisory Council and the Australian Law Reform Commission.[214]

The Carly Ryan Foundation explained that while it initially submitted its support for mandatory minimum sentences, it received further feedback from international experts on paedophiles, who agreed that these amendments would not achieve adequate sentencing outcomes. The Foundation therefore recommended that mandatory minimum sentences be removed from the Bill to ensure that those amendments do not stand in the way of the Bill’s reforms ‘which all sides of politics can agree to and which will have positive sentencing outcomes’.[215]

Concern about removal of judicial discretion

The ALA submitted that increasing maximum penalties and at the same time imposing mandatory minimums:

... shows a manifest want of trust and faith in the competence of the judiciary... The ALA strongly submits that sentencing should ultimately be a discretionary matter and judges’ hands should not be tied so that there is an unjust result in particular and unusual circumstances.[216]

Shine Lawyers also made this point:

Judicial officers should maintain their discretion to apply sentencing principles including proportionality, parsimony and totality. Judges are appropriately experienced to make the nuanced decisions required during sentencing and should not be restricted by the imposition of mandatory minimum sentences.[217]

They warned there was a danger that public confidence in the judiciary could be undermined.[218]

Unintended consequences

The Synod of Victoria and Tasmania, Uniting Church in Australia, ‘was concerned that the introduction of mandatory minimum sentences could make it more challenging for victims to come forward’.[219]

The Law Council warned of unintended consequences of the Schedule 6 provisions and provided several scenario based examples.[220]

Additional recommendations if the provisions in Schedule 6 are retained

The Law Council recommended the mandatory minimum penalties be removed from the Bill, however, if they are to proceed the Bill should be amended:

• to allow the court full discretion in cases of individuals with significant cognitive impairment or mental illness and
• to remove the concluding words of paragraph 16AAC(2)(b) ‘in the investigation of the offence or of a Commonwealth child sex offence’, so that any cooperation with law enforcement may be taken into account in reducing the minimum penalty.[221]

Knowmore recommended that if mandatory minimum sentences are adopted, 'there needs to be some effective evaluation of the impacts ...' which could assist to gain an understanding of whether the stated aim of increasing actual custodial times is being achieved.[222]

Alternative approaches

Minimum or presumptive non-parole periods

SASS supports presumptive NPPs for certain child sex offences as a strong alternative to mandatory minimum sentencing. SASS would also be open to supporting a proposal to create guideline judgments.[223]

Legal Aid NSW stated that the NSW standard NPP system ‘provides guidance to the court when it is determining the appropriate sentence, without limiting the courts discretion. This is a preferable model to any form of mandatory sentencing ...’[224]

Bravehearts advocated for a minimum standard NPP set as a percentage of the maximum sentence for offences of different defined levels of seriousness:

For example, the defined term should be set at:

• 30% of the prescribed maximum sentence for low-range offences
• 50% of the prescribed maximum sentence for mid-range offences
• 80% of the prescribed maximum sentence for high-range offences.[225]

Standard Sentencing

Victoria recently introduced a new form of ‘yardstick’ for courts in addition to maximum penalties—standard sentences. The standard sentence indicates to a court Parliament’s intended penalty for a mid-range offence:

Victoria’s standard sentences are guideposts for sentencing 12 serious offences:

• murder
• rape
• culpable driving causing death
• trafficking in a large commercial quantity of a drug of dependence
• eight different sexual offences involving children.

The standard sentence for most of these offences is set at 40% of the maximum penalty. For example, the maximum sentence for rape is 25 years’ imprisonment, making the standard sentence for that offence 10 years’ imprisonment...

The standard sentence represents the middle of the range of seriousness when just considering the offending and no other factors (such as the offender’s circumstances, prior offending history or plea). Courts are required to consider the standard sentence alongside all other relevant sentencing principles and factors. Courts need to provide reasons explaining how the sentence imposed in a case relates to the relevant standard sentence.[226]

Special sentencing considerations for vulnerable populations

Knowmore highlighted that mandatory sentencing often has a disproportionate impact on marginal groups.[227] The ALRC recognised, as Brennan J observed in Gerhardy v Brown:

... formal equality may be ‘an engine of oppression destructive of human dignity if the law entrenches inequalities “in the political, economic, social, cultural or any other field of public life”’. Achieving substantive and not formal equality before the law includes, for example, the consideration upon sentencing of the unique and systemic factors affecting Aboriginal and Torres Strait Islander offenders. It also includes not only consistency in the provision of sentence options and diversion and support programs across the country, but also ensuring that these are culturally appropriate.[228]

Academic David Brown argues that applying the law equally to everyone does not answer criticisms of discrimination and unfairness:

Anatole France once wrote of “the majestic equality of the law which forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread”. The satirical point he was making is that most of us don't have much need to steal biscuits to eat, textas to draw or towels to use as blankets, because we can easily afford to buy these things. The equal application of law to unequals does not produce fairness and equality but rather unfairness and deepening inequality.  Fairness is a consequence of adjustment to the variability of circumstance, yet this is precisely what mandatory sentencing prevents.[229]

The Law Council provided scenarios suggesting that young people might be sentenced inappropriately under the provisions amended by the Bill.[230] AGD and DHA argued that young people would be protected by prosecutorial discretion.[231]

Young people

The special needs of young offenders are recognised. Proposed subsection 16AAC(1) excludes persons aged under 18 at the time of offending from the operation of the minimum sentencing provisions.

Persons with a mental illness or intellectual impairment

Proposed section 16AAC does not mention these special populations, however:

• Division 6 of Part IB of the Crimes Act deals with unfitness to be tried
• Division 7 of Part IB of the Crimes Act deals with acquittal because of mental illness
• Division 8 of Part IB of the Crimes Act allows the summary disposition of persons suffering from mental illness or intellectual disability and
• Division 9 of Part IB of the Crimes Act provides sentencing alternatives for persons suffering from mental illness of intellectual disability.

The proposed amendments do not appear to affect the operation of these provisions. The Law Council submitted that people with a cognitive impairment or mental illness should be specifically included in the list of ‘exclusions’ in proposed section 16AAC.[232]

AGD and DHA stated that mentally ill or cognitively impaired offenders may be protected from trial or acquitted under the Crimes Act and a range of appropriate orders has been developed to ensure community safety. ‘For this reason it is not necessary to explicitly exclude this cohort from the application of mandatory minimum sentences.’[233]

See further discussion above under Schedule 12 and the heading ‘Detention of persons with mental illness or intellectual disability’.

Aboriginal and Torres Strait Islanders

Recommendation 8–1 of ALRC Report, Pathways to Justice, was:

Commonwealth, state and territory governments should repeal legislation imposing mandatory or presumptive terms of imprisonment upon conviction of an offender that has a disproportionate impact on Aboriginal and Torres Strait Islander peoples. [234]

The Explanatory Memorandum does not discuss whether these presumptive terms of imprisonment will have a disproportionate effect on Aboriginal and Torres Strait Islander peoples.

Schedule 7, Part 2—Presumption against bail

Schedule 7, Part 2 is in substantially the same terms as the 2017 Bill.

Commencement

Part 2 of Schedule 7 will commence on the day after Royal Assent.

The provisions in Part 2 of Schedule 7 apply to a bail authority. Bail authority is defined in section 3 of the Crimes Act: bail authority means a court or person authorised to grant bail under a law of the Commonwealth, a state or a territory. This is usually a police officer, an authorised justice or a court.[235]

The discretion to grant or refuse bail may in the first instance be exercised by a police officer. If the police refuse a person bail, the person has a right to appear before a magistrate as soon as possible to apply for bail.[236]

Presumption against bail for certain child sex abuse offences

In his second reading speech, the Attorney-General stated:

In considering bail for repeat child sex offenders or those charged with the most serious child sex offences, there is an expectation that, for the safety of the community, bail should be refused, unless the accused person can satisfy the court there are circumstances which justify their conditional release.[237]

The Explanatory Memorandum explains:

The criminal conduct involved in this crime type targets one of the most vulnerable groups in the community — children. While bail conditions may act as an effective deterrent to reoffending, they are only as good as the practical measures taken to enforce those conditions. The ease in using anonymising practices such as encryption and virtual private networks makes the enforcement of conditions particularly difficult where that relates to internet offending ...[238]

The point being made in the Explanatory Memorandum may be that the presumption against bail for persons accused of child sex abuse offences is justified due to the great practical difficulty in enforcing conditions such as not accessing the internet; however, the point is not further discussed. The Bill does not make any new provision for practical measures to enforce bail conditions.

Proposed section 15AAA at item 4 of Schedule 7, will apply a presumption against bail when a person is charged with or convicted of:

• a serious Commonwealth child sex offence which is listed in proposed section 16AAA as requiring the imposition of a minimum penalty of imprisonment
• a second or subsequent offence which is listed in proposed section 16AAB as requiring the imposition of a minimum penalty of imprisonment.

However, the bail authority may grant bail if ‘satisfied by the person that circumstances exist to grant bail’.

Additional matters to be considered in granting bail

Proposed subsection 15AAA(2) lists certain matters that a bail authority must take into account in addition to any other matters (that is, the matters a bail authority would normally take into account):

1. whether the person would be likely to fail to appear
2. whether the person would be likely to commit a further offence
3. whether the person would likely put at risk the safety of the community or cause a person to suffer any harm
4. whether a person would be likely to conceal, fabricate or destroy evidence or intimidate a witness
5. the impact a refusal of bail would have on someone who is aged under 18 years
6. whether that person would not be likely to undertake a rehabilitation program, or not comply with any bail conditions relating to rehabilitation or treatment, while released on bail.

The Explanatory Memorandum does not explicitly discuss current bail laws and identify a problem that needs to be addressed by legislation. According to a standard text, Criminal Procedure in Australia, there is general uniformity across Australian jurisdictions in the particular criteria to be considered in an application for bail.[239] All of the additional matters in proposed subsection 15AAA(2), except paragraph (f), could be argued to be the ordinary matters a court considers when considering whether bail should be granted:

Traditionally, the question whether an accused ought to be granted bail (authorisation to be at liberty awaiting trial) or not was mainly concerned with whether the accused would appear in court on the designated day to answer the charges. These days there are other considerations, the main ones being whether, if the accused is at large, he or she will be a danger to the community, commit offences or interfere with witnesses or evidence.[240]

Proposed subsection 15AAA(3) requires that if the bail authority is a court and grants bail, the court must state its reasons and cause those reasons to be entered in the court’s records.

Proposed subsection 15AAA(4) provides that, despite any law of the Commonwealth to the contrary, the person or the Commonwealth Director of Public Prosecutions may appeal against a decision of a bail authority.

Comments from Parliamentary Committees

The Scrutiny Committee advised:

... it is a cornerstone of the criminal justice system that a person is presumed innocent until proven guilty, and presumptions against bail (which deny a person their liberty before they have been convicted) test this presumption. As such, the committee expects that a clear justification be given in the explanatory materials for imposing a presumption against bail and any evidence that courts are currently failing to consider the serious nature of an offence in determining whether to grant bail ...

... no information is provided to demonstrate that the courts are currently not appropriately considering the risks posed by those accused of Commonwealth child sex offences.[241]

The PJCHR found the presumption against bail in Schedule 7 of the Bill poses a risk that, if the threshold for displacing the rebuttable presumption against bail is too high, it may result in loss of liberty in circumstances that may be incompatible with the right to release pending trial:[242]

a rebuttable presumption against bail remains a serious limitation on the right to release pending trial. International jurisprudence indicates that pre-trial detention should remain the exception and that bail should be granted except in circumstances where the likelihood exists that, for example, the accused would abscond, tamper with evidence, influence witnesses or flee from the jurisdiction.[243]

Comments from major interest groups

Bravehearts supported the proposed presumption against bail as did the RANZCP and the Carly Ryan Foundation.[244]

Knowmore supported the proposed presumption as similar to a ‘show cause’ provision in state and territory law and thought it struck the right balance between upholding the rights of the survivor, the perpetrator and protecting the community. However, Knowmore also submitted:

... the Government should regularly review all matters affected by prolonged delays to ensure that persons whose bail has been refused under s15AAA are not at risk of arbitrary detention, and should ensure that the criminal justice system is sufficiently resourced to resolve matters in a timely manner ...[245]

The Law Council noted that proposed section 15AAA runs counter to the long held presumption in criminal law in favour of bail. The Law Council states it is also inconsistent with the presumption of innocence and may be in breach of Australia’s obligations under Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR) that as a general rule a person has a right not to be detained in custody while awaiting trial.[246]

NSW Legal Aid strongly opposed the presumption against bail, arguing that the bail regime is already exceedingly complex and the proposed provisions would create further inconsistencies and confusion.[247]

Legal Aid Western Australia states the presumption against bail is a serious erosion of the presumption of innocence. It notes:

Where an accused person has been falsely accused then the presumption against bail may result in this person being detained in prison for a significant period of time, seriously impacting on the person’s career, income and family, until the accused can have the charge determined in a trial. There is no compensation for an innocent accused who have often suffered substantial losses as a result of a false accusation.[248]

Shine Lawyers also opposed the presumption against bail. They also referred to Article 9 of the ICCPR. They argue the provisions are an unjustifiable departure from that rule and ‘it may result in loss of liberty in circumstances where that is not reasonably necessary or proportionate’.[249]

AGD and DHA argued that the presumption against bail 'is reasonable and proportionate as it applies only to the most serious child sex offences or where an offender would be facing a mandatory minimum penalty because they have been convicted of previous child sex offence'.[250]

Bail considerations for Aboriginal and Torres Strait Islander people

ALRC Report 133, Pathways to Justice, discuses particular considerations in relation to bail for Aboriginal and Torres Strait Islander people:

In Chapter 5, the ALRC discusses how irregular employment, previous convictions for often low-level offending, and a lack of secure accommodation can disadvantage some accused Aboriginal and Torres Strait Islander people when applying for bail. Furthermore, it notes that when bail is granted, cultural obligations may conflict with commonly issued bail conditions...

As a means of decreasing the number of Aboriginal and Torres Strait Islander people in prison held on remand, the ALRC recommends that bail laws should require bail authorities to consider issues and circumstances arising from a person’s Aboriginality when making bail determinations.[251]

The Bill does not require a bail authority to consider issues and circumstances arising from a person’s Aboriginality. The Explanatory Memorandum does not discuss the issue.

Schedule 8—Objective of rehabilitation must be considered when sentencing child sex abuse offenders

Schedule 8 is the same as the 2017 Bill.

Commencement

Schedule 8 will commence 28 days after Royal Assent.

Court must consider treatment or rehabilitation options

Item 3 will insert proposed subsection 16A(2AAA), which requires a court to have regard to the objective of rehabilitation of the person. This is an additional sentencing factor to be taken into account along with the general sentencing factors in subsection 16A(2).

In particular, a court will have to consider:

• whether to impose conditions about treatment or rehabilitation options when making an order and
• in determining the length of any sentence or non-parole period—to include sufficient time for the person to undertake a rehabilitation program.

Increasingly there is evidence to suggest that the recidivism of child sex offenders can be reduced by rehabilitation programs inside or outside the prison environment. The Explanatory Memorandum advises:

This amendment recognises the importance of rehabilitative justice. Rehabilitation of offenders decreases the likelihood of recidivism and is vital for public and community safety. However, state and territory correctional facilities advise that typically a non-parole period of 18 months to two years is required for offenders to be able to complete a relevant custodial sex offender treatment program.[252]

Treatment is discussed in more detail above under the heading ‘Is rehabilitation of child sex abuse offenders possible?’.

Comments from major interest groups

Both the CCLJ and Legal Aid Western Australia opposed this provision on several practical grounds, including that additional funding for rehabilitation would be required, and:[253]

• rehabilitative programs are often run on a periodic basis and may have significant waiting lists
• an offender should not have their sentence increased just so they can undertake a rehabilitative program which may not be available for a significant period of time.

Schedule 9—Additional sentencing factors—Criminal Code

Schedule 9 is unchanged from the 2017 Bill.

Commencement

Schedule 9 will commence on the day after Royal Assent.

Key provisions

The Bill introduces new factors that a court must take into account when sentencing an offender for a relevant offence:

• the age and maturity of the person in relation to whom the offence was committed
• if that person was under 10 when the offence was committed—that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates and
• the number of people involved in the commission of the offence.

The additional factors will apply to sentencing for the following offences:

• Items 1 and 2—Offences against Division 272, Subdivision B—Sexual offences against children outside Australia
• Item 3—Offences against Division 471 Subdivision C—Offences relating to use of postal or similar service involving sexual activity with person under 16
• Item 4—Offences against Division 474 Subdivision F—Offences relating to use of carriage service involving sexual activity with, or causing harm to, person under 16.

The Explanatory Memorandum comments:

The age and maturity of the victim can be relevant factors when considering the impact that the offending has on a victim, as well as the relative culpability of an offender. It is not intended that the sexual history of the victim be taken into account when considering their maturity ...

The introduction of this aggravating sentencing factor recognises that children are more defenceless and vulnerable the younger they are. It is appropriate, therefore, to reflect this increased vulnerability through a proportionate increase to the severity of relevant offending against particularly young children. This provision does not imply that it will be a mitigating circumstance where the victim is aged over 10 years at the time of the offending ... The court must also take into account as a relevant sentencing factor the number of people involved in the offending. This recognises that, in certain instances, offences ... are potentially more serious and harmful to victims if multiple people are involved.[254]

Schedule 10—Cumulative sentences

Schedule 10 is unchanged from the 2017 Bill.

Commencement

Schedule 10 will commence on the day after Royal Assent.

Background—Recommendation of the Royal Commission

In relation to cumulative and concurrent sentencing, the Royal Commission recommended:

State and territory governments should introduce legislation to require sentencing courts, when setting a sentence in relation to child sexual abuse offences involving multiple discrete episodes of offending and/or where there are multiple victims, to indicate the sentence that would have been imposed for each offence had separate sentences been imposed.[255]

The recommendation did not apply to the Commonwealth, however it is worth noting that the proposed provisions are at odds with that recommendation. The Royal Commission noted that the principles behind concurrent sentencing are not well understood and acknowledged:

... the imposition of sentences that are to be served concurrently can cause distress to victims and survivors.

However, given the principle of totality, adopting a simple presumption in favour of cumulative sentencing would be unlikely to provide victims and survivors with any greater comfort. In order to comply with the principle, head sentences for child sex offences would need to be reduced in order to avoid a crushing sentence, which might be just as distressing to victims and survivors.

We consider that sentencing for multiple offences should, to the greatest degree possible, provide separate recognition for separate episodes of child sexual abuse offending, and certainly for multiple victims.

We are not satisfied that legislating for a presumption in favour of cumulative sentencing would achieve this. However, we are satisfied that there is scope for states and territories to legislate to ensure that the separate harm done to victims by separate offences is recognised where there are multiple discrete episodes of offending and/or where there are multiple victims.

Adopting a provision similar to that used in New South Wales, which requires the sentencing court to give an indication of the sentence that would have been imposed for each offence when setting an aggregate sentence, should assist in ensuring that separate episodes of offending are given their own recognition in any aggregated sentence.

We do not put this recommendation forward with an expectation that it is likely to lead to longer sentences. Sentencing for multiple offences is a difficult task, and we share the concern expressed in some submissions that preserving discretion for sentencing courts is the most appropriate course to recognise the many and various circumstances that arise in sentencing.[256]

The National Judicial College of Australia explains cumulative and concurrent sentencing on its website page ‘Cumulative and concurrent sentences’:[257]

The terms ‘cumulative’ and ‘concurrent’ are not defined in Crimes Act. The Butterworths Concise Australian Legal Dictionary (4^th ed, 2010) defines the terms as follows:

Cumulative sentence: A punishment or term of imprisonment which commences at the expiration of another punishment or term of imprisonment.

Concurrent sentence: A sentence that is served at the same time as another sentence.[258]

There is a common law presumption that sentences will be served concurrently; however, this presumption is not reflected in the Crimes Act.[259]

Subsection 16A(1) of the Crimes Act incorporates the sentencing principle of totality:

In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

Section 19 of the Crimes Act deals with general requirements for a court to direct when a sentence commences. When sentencing an offender for a federal offence, a court must direct when each federal sentence commences and the sentence will operate cumulatively or concurrently accordingly.

Key provisions

Schedule 10 inserts additional requirements into section 19 when a court is sentencing an offender for Commonwealth child sex offences. Proposed subsection 19(5) requires that a sentence for a Commonwealth child sex offence must not be given a starting date which results in the sentence being served, in whole or part, at the same time as another sentence for another Commonwealth child sex offence or a state or territory registrable sex offence.

The effect is to introduce a presumption in favour of cumulative sentences where a person is being sentenced for multiple Commonwealth child sex offences or a combination of Commonwealth and state or territory child sex offences.

The ultimate discretion of the court is maintained because proposed subsection 19(5) provides that subsection (5) does not apply if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances.

Proposed subsection 19(7) requires a court, if it does impose orders in a different manner than that required by subsection 19(5) to state its reasons for imposing the sentence in that manner and cause the reasons to be entered in the record of the court. The Explanatory Memorandum explains this is important:

Given the significant difference that decisions of the court on this aspect can make to the total length of the sentence imposed on an offender—and the justice outcome for the victim—it is important that the court is required to explain its reasons.[260]

The Explanatory Memorandum explains the intent of the amendments:

The objective of the presumption is to act as a yardstick against which to examine a proposed sentence of an offender for multiple child sex offences to ensure that the effective sentence represents a tougher response to the objective seriousness of the sexual abuse of children. It benefits circumstances such as where offences are committed against separate victims over an extended period of time.[261]

Comments from major interest groups

Both Legal Aid NSW and Legal Aid Western Australia opposed proposed subsection 19(5) as being inconsistent with well-established sentencing principle of totality.[262]

The Law Council noted that since the provisions first restrict judicial discretion in proposed subsection 19(5) and then restore it in proposed subsection 19(6), the presumption is ‘somewhat paradoxical and its purpose unclear’. The Law Council was also concerned:

... that the presumption will lead to unjust and unfair outcomes. This is particularly so given that there is significant overlap in the both state/territory and Commonwealth charges being laid in child sexual abuse cases where offences will often have different maximum penalties. The presumption is likely to lead to significant legal challenges and delays in the courts.[263]

Shine Lawyers and Knowmore both drew attention to the comments and recommendations of the Royal Commission discussed above. [264]

Schedule 11— Conditional release of offenders after conviction

Schedule 11 is unchanged from the 2017 Bill.

Commencement

Schedule 11 will commence on the day after Royal Assent.

Background

Subsection 20(1) of the Crimes Act set out the court’s options when a person is convicted of an offence. The court may:

• under paragraph 20(1)(a), make an order releasing the person without sentence on a recognizance release order (RRO), sometimes called a good behaviour bond, with or without imposing a surety or security, on certain conditions (including conditions to attend treatment or rehabilitation)[265]
• under paragraph 20(1)(b), impose a sentence of imprisonment but direct that the person be released, immediately or after serving a specified period of imprisonment, on a RRO.

Section 19AC of the Crimes Act provides that a court that imposes a sentence of imprisonment of three years or less on a federal offender must generally make a RRO in respect of part or all of that sentence and must not fix a non-parole period.[266] The court may decline to make a RRO if it is satisfied that it would not be appropriate to do so, having regard to the nature and circumstances of the offence and the offender’s criminal history. In that case, the court must state and record its reasons for declining to make a RRO.[267]

The Bill proposes to limit the circumstances in which a judge may order the immediate release of a person convicted of a Commonwealth child sex offence on a RRO.

The Explanatory Memorandum states:

Currently, child sex offenders who are sentenced to three years or less imprisonment are sentenced to recognizance release orders. This means that they are released into the community immediately or after serving a period of imprisonment. Many such offenders receive wholly suspended sentences, meaning that they are immediately released without serving any period of time in custody, and often without any supervision conditions. This is out of step with community expectations, presents a risk to community safety and does not reflect the severity of the often life long harm inflicted on the victims.

The introduction of a presumption in favour of an actual term of imprisonment as set out in this Schedule still provides the courts with enough discretion in setting the pre-release period under a recognizance release order to enable individual circumstances to be taken into account while ensuring that child sex offenders receive sentences that reflect the exceptionally serious nature of their crimes.[268]

Key provision

Item 1 of Schedule 11 will repeal paragraph 20(1)(b) and substitute proposed paragraph 20(1)(b). The proposed provision does not change the current position with respect to sentencing for offences other than child sex offences.

In respect of child sex offences, the court will only be able to order immediate release in exceptional circumstances. The term ‘exceptional circumstances’ is not defined in the Crimes Act.

In all other circumstances, the offender will be required to serve a specified term of imprisonment before release on a RRO.

Item 3 inserts proposed subsection 20(1B) under which a court making a RRO for a child sex offender must include conditions that require the offender to:

• be subject to the supervision of a probation officer
• obey all reasonable directions of the probation officer
• not travel interstate or overseas without the written permission of the probation officer and
• undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

Comments from Parliamentary Commitees

The PJCHR found that the threshold of 'exceptional circumstances' appears intended to operate as a significant hurdle to sentencing a person to a suspended sentence rather than imprisonment in custody. Whether this is a sufficient safeguard against the risk of arbitrary detention will depend on how 'exceptional circumstances' are interpreted by the courts.[269]

The PJCHR concluded that there is some degree of risk that the measure could operate so as to be incompatible with the right to liberty if incarceration is not reasonable, necessary and proportionate in all the circumstances of the individual case.[270]

Comments from major interest groups

The Law Council noted the provisions were inconsistent with research that shows short prison sentences are less effective at reducing reoffending than community supervision or intensive correction orders.[271]