Courts Legislation (Crown Appeals) Amendment Bill
COURTS LEGISLATION (CROWN APPEALS) AMENDMENT BILL
Debate resumed from 21 April.
The Hon. R. D. DYER [9.39]: The Opposition supports the bill. Honourable members will recall that the principal Act, the Children (Criminal Proceedings) Act 1987, was introduced shortly before the former Labor Government left office. The Act regulates the conduct of criminal proceedings against children. The Act applies to juvenile offenders, whether they are dealt with by the Children's Court or according to law in the general courts of the State. In 1987, when the Children (Criminal Proceedings) Act became law, the Crown was not entitled to appeal to the District Court against sentences imposed on offenders by magistrates. However, that position changed in 1988 by virtue of an amendment made to the Justices Act. The result is that there is now an anomaly in the law in that although it is permissible for the Crown to appeal to the District Court against a sentence imposed on a juvenile offender by a court other than the Children's Court, the Crown cannot do so when a sentence is imposed on such an offender by the Children's Court.
It appears to the Opposition as a matter of principle that there is no reason why some sentences imposed on juvenile offenders should be immune from correction on appeal and others should not. The purpose of the bill is to amend the Children (Criminal Proceedings) Act 1987 and the Justices Act 1902 to allow the Director of Public Prosecutions to appeal to the District Court against sentences imposed by the Children's Court. It should be noted in particular that when sentencing offenders the Children's Court is limited to the sentencing options contained in section 33 of the Children (Criminal Proceedings) Act. I note also that under section 33 it is not open to the Children's Court to impose a sentence of imprisonment, although it is within the power of the Children's Court to commit a juvenile offender to the custody of the Minister administering the Children (Detention Centres) Act 1987 for a period not exceeding two years.
I am concerned about one matter. Although the Minister said in his second reading speech that when the Director of Public Prosecutions appeals to the District Court the judge hearing the appeal will be confined to the sentencing options available to the magistrate in the Children's Court, I cannot find a precise provision to that effect in the amending legislation before the House. It may well be that that will be the outcome of the principal Act being amended in the manner contemplated by the bill. I do not suggest for one moment that the Minister attempted to mislead the House when he gave that undertaking. However, it is the duty of the Opposition to ensure that laws are properly enacted and that undertakings given by the Minister meet the facts and circumstances and, indeed, the provisions of the bill.
I again draw that matter to the attention of the Minister and his advisers to enable the Minister to give a specific assurance and some short explanation in reply as to why, in the event of an appeal by the Director of Public Prosecutions to the District Court, the judge is confined to the sentencing options available to the magistrate in the Children's Court. It may well be that that is the effect of the measure before the House, but I would like both a further undertaking by the Minister in that regard and a brief explanation as to why that is the outcome. It is an important point and the Opposition would like it to be laid to rest. In fairness I should say that it appears to the Opposition that there is no valid reason that the correction mechanism - that is, the availability of an appeal to the District Court - should not be available to the Crown when a sentence is believed to be unduly lenient.
After all, an appeal is available when the defence believes that a sentence imposed by a magistrate in the Children's Court is unduly harsh. I have always believed in balance, and in my view it is difficult to understand why such an appeal should be available to the defence and not to the Crown. In his second reading speech the Minister mentioned that the bill is supported by the Chief Magistrate, Mr Ian Pike, by the Senior Children's Court Magistrate, Mr Blackmore, and by the Chief Judge of the District Court, Judge Staunton. I have taken the liberty of speaking to the Senior Children's Court Magistrate and he has confirmed that he supports the bill. He sees a degree of safety being available in some guidance being given by a superior court in relation to sentences imposed from time to time in the Children's Court. It is apparent that the Opposition supports the legislation for the reasons I have mentioned.
Before I conclude, I should like to place on the record that the Marrickville Legal Centre and Children's Legal Service has sent correspondence dated 2 May to the Attorney General concerning the bill. In effect it argues against the provisions of the bill. I am unable to agree with some of the points of view put to the Attorney General. I believe that the approach taken in the correspondence is unduly one-sided and advances some arguments that are not tenable in that they are used against the Crown and not, as they might well be, against the defence when the defence, as is sometimes the case, lodges an appeal against what is perceived to be an excessively harsh sentence. I cannot support much of what is said in the correspondence, except in relation to some of the more general points.
In its remarks to the Attorney General, the Marrickville Legal Centre claims that the bill has been presented to Parliament without any community consultation or public debate. The Attorney General has indicated that there has been consultation with the members of the judiciary to whom I have referred, but I am concerned about the statement by the Marrickville Legal Centre that there has, in effect, been no community consultation regarding the provisions of the bill. The Marrickville Legal Centre also draws attention to the fact that the Government has seen fit to bring forward this amendment despite the fact that it has not yet brought to finality and issued the white paper on juvenile justice.
Juvenile justice reform has undergone a long gestation period. From memory, the green paper has been available for about 12 months and I would have thought that the issuance of the white paper is somewhat overdue. In making those comments I do not say that the amendment is not justified, but I say, as Marrickville Legal Centre does, that it might have been advisable for the Government not only to bring forward this piece of amending legislation but also to set in place its juvenile justice reforms by issuing the white paper on juvenile justice. A few weeks ago the Attorney General and I attended a conference on juvenile justice held at Terrigal on the Central Coast and organised by the Juvenile Justice Advisory Council and the Australian Institute of Criminology. The Attorney spoke at that conference and I chaired a conference session.
I would have thought that the Government's aim would be to have the white paper on juvenile justice available for that conference. That was not the case. I am concerned that the white paper may have run into some trouble in Cabinet, presumably for funding reasons. In connection with this bill I place on record the Opposition's concern regarding the continuing delay in completing the juvenile justice reforms set in train by the report on juvenile justice by the Standing Committee on Social Issues, followed by the green paper. The Opposition anxiously awaits the white paper. The Opposition supports the bill. However, I seek the assurance of the Attorney General on the matter I raised earlier regarding the District Court being confined to sentencing options provided for and contemplated by section 33 of the Children (Criminal Proceedings) Act 1987. I would not like to think that the appeal entitles the District Court to go outside those statutory sentencing options provided by the principal Act.
The Hon. S. B. MUTCH [9.52]: I support the Courts Legislation (Crown Appeals) Amendment Bill and congratulate the Hon. R. D. Dyer on his erudite and considered speech. He certainly has shored up his position and I think it is probably a good thing
because the Hon. Peter Anderson will certainly be looking to move to the upper House. I feel that the Hon. Peter Anderson will be able to play a tremendous -
The Hon. Franca Arena: Not in the place of the Hon. R. D. Dyer.
The Hon. S. B. MUTCH: No, but he will be able to play a tremendous support role to the Hon. R. D. Dyer as second in charge to the honourable member and deputy spokesman for whatever shadow portfolio the Hon. R. D. Dyer is elevated to after the next State election. I commend the Hon. R. D. Dyer for his speech; he has my support.
The Hon. R. D. Dyer: Is the Hon. S. B. Mutch trying to help me?
The Hon. S. B. MUTCH: I am throwing my weight behind the Hon. R. D. Dyer, saying that he has my vote; I have some influence.
The Hon. R. D. Dyer: You do not have a vote.
The Hon. S. B. MUTCH: But I have influence. I am sure the assurances that the Hon. R. D. Dyer is seeking from the Attorney General as to the intentions of the legislation will be forthcoming. The bill was introduced to rectify an anomaly whereby, although the Crown may appeal to the District Court with respect to sentences imposed upon juveniles by a magistrate authorised by proclamation to exercise the jurisdiction of the Children's Court, such an appeal is not available when the sentence has been imposed by a Children's Court. It is a matter of significance where non-specialist magistrates are dealing with juvenile offenders. It could be said that in those cases there is a need for that type of appeal, but one has to ensure that the law is consistent in relation to the avenue of appeal. This legislation will produce greater uniformity in sentencing.
On appeal the District Court will be bound by the same statutory sentencing options which bound the magistrate in the first instance. Among other things that means that sentences of imprisonment will not be available on appeal. The existing rights of defendants to appeal on conviction and or sentence are not disturbed by the amendments. Although the facility for the Crown to appeal should exist, it is not anticipated that the number of such appeals will be great. This has been the experience in respect of Crown appeals on sentencing generally. The amendments have been canvassed among the judiciary and are supported by the Chief Judge of the District Court, the Chief and Deputy Chief Magistrates, the Senior Children's Court Magistrate and the Director of Public Prosecutions. I thank the Opposition, and particularly its brilliant spokesman, the Hon. R. D. Dyer, who I anticipate will have a long and secure reign on the Opposition benches in the Legislative Council.
The Hon. ELISABETH KIRKBY [9.56]: As has been stated by other members, the Courts Legislation (Crown Appeals) Amendment Bill addresses an anomaly in the Children (Criminal Proceedings) Act 1987 and the Justices Act 1902 whereby the Crown can appeal to the District Court in relation to a sentence imposed on a juvenile offender by a court other than a Children's Court but cannot do so in relation to a sentence imposed on a juvenile offender by a Children's Court. The Children (Criminal Proceedings) Act and the Justices Act will be amended to allow the Crown to appeal to the District Court in relation to penalties imposed by the Children's Court.
I am well aware, and I note, that this right of appeal will not alter the sentencing options that may be imposed under the existing section 33 of the Children (Criminal Proceedings) Act. In other words it will not be possible to impose a sentence of imprisonment. This has been referred to by other speakers to this debate. The bill will ensure that all sentences imposed on juvenile offenders will be subject to Crown appeal. It is obvious that the community has an interest in correct sentencing policy being applied. However, the House should be aware that a specific exemption was made by John Dowd, Q.C., when he was Attorney General of this State. During debate on the Justices (Appeals) Amendment Bill in the Legislative Assembly on 10 November 1988 Mr Dowd stated, as recorded at page 3172 of Hansard:
In common with the Hon. R. D. Dyer, I ask the Attorney General and Leader of the Government in this House why he has now seen fit to reverse that policy, notwithstanding the generic statements that he has made about getting rid of an anomaly. If there is an anomaly, it was created for a reason by the former Attorney General, a member of the Liberal administration, and it was presumably accepted by Cabinet. I wonder what has changed to persuade the Leader of the Government in this House to get rid of that so-called anomaly. In common with the Hon. R. D. Dyer, I ask the Attorney General to address this question in his remarks in reply.
Reverend the Hon. F. J. NILE [10.0]: The Call to Australia group is pleased to support the Courts Legislation (Crown Appeals) Amendment Bill. The object of this bill is to amend the Children (Criminal Proceedings) Act 1987 and the Justices Act 1902 to enable the Crown to appeal to the District Court in relation to penalties imposed by the Children's Court. This bill will amend the Children (Criminal Proceedings) Act 1987, including section 27, and remove the bar in section 42 that prevents the application of division 4A of part 5 of the Justices Act 1902 to decisions of the Children's Court. The Hon. Elisabeth Kirkby asked what had changed. I think there has been a lot of public concern about some of the decisions made by the Children's Court. Some magistrates seem to have given lenient penalties or sentences in serious cases.
I believe it is a matter of justice that the Crown should have the ability to appeal against those decisions where it feels it is justified.
The original legislation was drafted by the then Attorney General, Mr Dowd, and it reflects his philosophy. I do not necessarily support all the elements of Mr Dowd's philosophy. I believe that this bill brings courts into line, whether they are children's courts or adults' courts, so that they operate under the same principles. I think the Crown should have the ability to appeal when an appeal is justified. It should not be necessary to use that process often. I know that in recent times juveniles who have been guilty of multiple car stealing - they have stolen 40 or 50 - have received minor sentences.
In another case a schoolboy fractured the skull of a 13-year-old boy. There was no sentence as such - no community service or juvenile justice detention, nothing. The parents are obviously distraught over what was almost a murder. Apparently the boy who carried out the offence walked out of the Children's Court with a big smile on his face. In a situation where the Crown is present, knows the evidence and feels that the magistrate has made a wrong decision, it should have the ability to appeal in the public interest. That right should be available, not to be abused but to be used on occasions when it seems justified. We support the bill.
The Hon. J. P. HANNAFORD (Attorney General, Minister for Justice, and Vice President of the Executive Council) [10.3], in reply: I thank honourable members for their support for this important legislation. I shall deal first with what I can best describe as a cynical comment from the Hon. R. D. Dyer, who is not known for his cynicism, except on rare occasions. On this occasion he cynically questioned the delay of the white paper. I intend to deliver a workable white paper that will achieve real change in juvenile justice. I draw the attention of the House to the fact that in 1983 the former Labor Government introduced a child welfare Act. By 1988 that Act still had not been proclaimed.
The Labor Party introduced legislation that even it acknowledged was inordinately expensive and unworkable. I have no intention of following the model that was set by the Labor Party to introduce change in this area. When Cabinet finally resolves upon a direction on juvenile justice, I intend it to be a package of workable proposals that will be capable of implementation and which will be financed to achieve that direction.
Reverend the Hon. F. J. Nile: And it will not be window-dressing.
The Hon. J. P. HANNAFORD: It will not be the window-dressing of 1983, which was just before an election. To my recollection, that window-dressing continued to be rolled out in varying forms before each election.
The Hon. Franca Arena: The Minister is being very cynical now.
The Hon. J. P. HANNAFORD: If the Hon. R. D. Dyer wants to lay out some cynicism, I will lay out some cynicism in response. He can be assured that the white paper will soon come forward. The Hon. Elisabeth Kirkby referred to comments made by the Hon. John Dowd in 1988. There is no doubt that there is a need for a specialist Children's Court. I support that. There is no doubt that appeals from decisions in the Children's Court must be allowed. There are now a number of children's courts in this State.
There are not only the specialist children's courts, but also the Local Courts, which provide a similar jurisdiction. There is a need to ensure consistency in the law that is being applied by all the courts. That can best be achieved by appeals and by giving direction to the District Court about the way in which justice should be delivered. The fact that the magistrates support this reform indicates that there is now a maturity in the community in the way in which children should be dealt with by the courts; leadership is being provided by the children's courts in achieving that. There is a need for the District Court to provide guidance to all the magistrates. That can best be achieved by this reform.
The Hon. R. D. Dyer asked whether a District Court judge presiding over a Crown appeal from a sentence imposed by a children's court would be limited to the sentencing options available to the Children's Court. As a matter of common sense, it should be accepted that a court hearing an appeal on sentence would be bound by the sentencing options available to the court below. The exercise of the appellate function depends upon the context of principles and parameters that the court appealed from was expected to apply. In the present situation this is put beyond doubt by section 131AB(4) of the Justices Act 1902. That section deals generally with Crown appeals on sentence to the District Court, and subsection (4) provides that on appeal the District Court may not vary a sentence so that the sentence as varied could not have been imposed by the court at first instance. It also provides that the District Court may not impose a sentence that could not have been imposed by the court at first instance.
That this position will operate in respect of Crown appeals that may be instituted as a result of the passage of the bill is made clear by new section 131AA(2A), which will be inserted into the Justices Act by clause 4(a) of the bill. The approach of the Court of Criminal Appeal in Regina v. XYJ, an unreported decision of 15 June 1993, is also relevant in that regard. That case was a Crown appeal on sentence from the District Court. The offender was a child at the time of sentencing. The District Court judge, exercising the power conferred by section 18 of the Children (Criminal Proceedings) Act, elected to deal with the penalty as though he was sitting as a children's court. Subject to argument as to the true construction of provisions in the Children (Criminal Proceedings) Act, the Court of Criminal Appeal approached the appeal on the basis that it had available to it only the sentencing options that were
available to the District Court judge after he had exercised the discretion under section 18. Indeed, from the judgment of the court, it does not appear to have been argued that the Court of Criminal Appeal had any other option.
The Hon. Elisabeth Kirkby asked what was wrong with the status quo. There is no convincing logic underpinning it. The principles that govern the sentencing of juvenile offenders are not the same whether the offender is being dealt with by a children's court or not. These principles derive from the general law and section 6 of the Children (Criminal Proceedings) Act. The relevant difference is that the sentences that may be imposed by a children's court differ from those that may be imposed by a court applying the general law. Just as a magistrate sentencing a juvenile offender according to law may err in applying principle within available parameters, the same holds good for a children's court. There is no reason why an erroneous decision of one type should be immune from appeal and another subject to appeal.
By allowing the offender and the Crown to appeal from sentences imposed by a court that is not a Children's Court, it is recognised that a magistrate may err on the side of undue severity or undue leniency. By allowing an offender sentenced by a Children's Court to appeal against a sentence imposed, it is recognised that a magistrate presiding over a Children's Court may err on the side of undue severity. If this is so, it is also true that such a magistrate may also err on the side of undue leniency. The bill accepts this and seeks to remove the anomaly. A further anomaly arises from the operation of section 18 of the Children (Criminal Proceedings) Act. In substance that section allows a court that is not a Children's Court a discretion to act as a Children's Court in sentencing an offender. Where this discretion is exercised there nevertheless exists a Crown right to appeal on sentence. It is absurd that in some cases a decision applying the principles and sentencing options available to a Children's Court should be immune from appeal and in others subject to appeal.
A third anomaly arises from section 20 of the Children (Criminal Proceedings) Act which, in certain circumstances, allows a court that is not a Children's Court a discretion to remit a matter to a Children's Court for sentence. If the matter is remitted, any sentence imposed would be immune from Crown appeal. If it is not, the right of Crown appeal exists. Although it was the ideal of the Children's Court Act that juvenile offenders should be dealt with by specialist magistrates, it is not always possible for this to occur. The creation of the Crown right of appeal contained in the bill will introduce a mechanism by which discrepancies in sentences can be corrected and greater uniformity can be introduced. Traffic offences, for instance, are excluded from the jurisdiction of Children's Courts and therefore the Crown can appeal against sentences imposed on juveniles in such matters.
As there already exists a Crown right of appeal in what would amount to many matters involving juveniles, there does not seem to be any good reason why the right of appeal should not exist in respect of other categories of offences. The Hon. Elisabeth Kirkby also asked whether the bill would deprive the Children's Court of its character of a separate jurisdiction. The answer is emphatically no. What gives the Children's Court its character as a separate jurisdiction is the Children's Court Act, which establishes it, and part 3 of the Children (Criminal Proceedings) Act, which deals with the conduct of criminal proceedings in the Children's Court. The bill does not amend the Children's Court Act or part 3 of the Children (Criminal Proceedings) Act in any way. Therefore the character of the Children's Court is not changed. I trust that the House will be satisfied with my response to the issues raised, and I thank the House for the support of the bill.
Motion agreed to.
Bill read a second time and passed through remaining stages.
This amendment will enable the Crown to appeal against inadequate sentences imposed by magistrates. It does not extend to decisions of magistrates in the Children's Court, which is a different jurisdiction and ought not to be subject to the same criteria.