Following public reaction to the decision in DPP v Warren and Underwood [2018] VCC 689 (see No gaol time for defendants who assaulted Victorian Paramedic (May 18, 2018)) the Victorian government announced there would be changes to the sentencing regime for people convicted of assaulting emergency workers – see Daniel Andrews MP, Premier, Protecting Our Emergency Workers: Joint Statement (21 May 2018) and Laws To Be Fixed So Jail Means Jail For Emergency Worker Attacks (22 May 2018).

The anticipated amendments were introduced to the Victorian Parliament as part of the Justice Legislation Miscellaneous Amendment Bill 2018 (Vic) (introduced on 20 June 2018).   You can read the Attorney General’s Second Reading Speech where he explains the reasons for the reforms and what the reforms are expected to achieve here – Victoria, Parliamentary Debates, Legislative Assembly, 21 June 2018, 2144 (Mr Pakula, Attorney-General).

The Bill, if passed, will make an offence contrary to ss 16, 17 or 18 of the Crimes Act 1958 (Vic), where the victim was, amongst others, ‘an emergency worker on duty’, a category 1 offence.  Section 16 refers to a person ‘who, without lawful excuse, intentionally causes serious injury to another’; section 17 refers to a person ‘who, without lawful excuse, recklessly causes serious injury to another person’ and section 18 refers to a person ‘who, without lawful excuse, intentionally or recklessly causes injury to another person’ (emphasis added).

When sentencing an offender for either a category 1 offence, a court ‘must make an order under Division 2 of Part 3’ of the Sentencing Act 1991 (Vic) (Sentencing Act 1991 (Vic) ss 5(2G) and 5(2H)).  Division 2 of Part 3 is headed ‘Custodial orders’.  Section 10AA ‘Assaulting, etc. emergency workers, custodial officers and youth justice custodial workers on duty’ appears in Division 2, Part 3.   Section 10AA says that where a person is being sentenced for an assault on an emergency worker they should receive a custodial sentence of not less than 3 years for an offence contrary so s 16 of the Crimes Act (s 10AA(1)), and not less than 2 years for an offence contrary to s 17 (s 10AA(2)). The minimum non-parole period for an offence contrary to s 18 is 6 months imprisonment (s 10AA(4)).  In any case, the court does not need to impose the minimum sentence if ‘special reasons’ (defined in s 10A) exist.

If passed the Justice Legislation Miscellaneous Amendment Bill 2018 (Vic) will amend s 10A. The text below has the current wording of s 10A with the amendments in the Bill. What will be additional text is shown in bold, text that will be deleted is strikethrough.

(1) In this section—

“impaired mental functioning” means—

(a) a mental illness within the meaning of the Mental Health Act 1986 ; or

(b) an intellectual disability within the meaning of the Disability Act 2006; or

(c) an acquired brain injury; or

(d) an autism spectrum disorder; or

(e) a neurological impairment, including but not limited to dementia;

self-induced intoxication has the same meaning as in section 322T(5) and (6) of the Crimes Act 1958.

(2) For the purposes of section … 10AA … a court may make a finding that a special reason exists if—

(a) the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or

(b) the offender—

(i) is of or over the age of 18 years but under 21 years at the time of the commission of the offence; and

(ii) proves on the balance of probabilities that he or she has a particular psychosocial immaturity that has resulted in a substantially diminished ability to regulate his or her behaviour in comparison with the norm for persons of that age; or

(c) the offender proves on the balance of probabilities that—

(i) subject to subsection (2A) at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender’s culpability; or

(ii) he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater significantly more than the ordinary burden or risks of imprisonment; or

(d) the court proposes to make a Court Secure Treatment Order or a residential treatment order in respect of the offender; or

(e) there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.

(2A) Without limiting subsection (2), in the case of an offence against section 18 of the Crimes Act 1958 committed by a young offender against an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty, a court may make a finding that a special reason exists if-

(a) it believes that there are reasonable prospects for the rehabilitation of the young offender; or

(b) it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.

(2A) Subsection (2)(c)(i) does not apply to impaired mental functioning caused solely by self-induced intoxication

(2B) In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court—

(a) must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and

(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and

(c) must not have regard to—

(i) the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or

(ii) an early guilty plea; or

(iii) prospects of rehabilitation; or

(iv) parity with other sentences

(3) In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court must have regard to— …

(ab) the Parliament’s intention that a sentence of imprisonment should ordinarily be imposed for an offence covered by section 10AA(4); and…

(c) whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, minimum non-parole period.

(4) If a court makes a finding under subsection (2), it must—

(a) state in writing the special reason; and

(b) cause that reason to be entered in the records of the court.

(5) The failure of a court to comply with subsection (4) does not invalidate any order made by it.

There are other amendments but for the sake of space, I invite subscribers to this blog to read the Minister’s second reading speech for the details.

Discussion

It is not clear how these changes would affect the outcome of DPP v Warren and Underwood were that case to arise under these new laws. In that case, the submission of counsel and the decision of the judge were based on the sections as they are now.  We cannot know whether the judge would have found that the various circumstances in the proposed s 10AA would be met if the case had to be determined under this proposed law.

We can note that at least in the judgement there was no reference to intoxication at the time of the offence.  If that is the case the new s 10A(2A) won’t be relevant.  As the Minister says:

The Bill will clarify when impaired mental functioning can be established as a special reason. An offender will not be able to rely on impaired mental functioning where it was caused solely by self-induced intoxication. An offender who has a genuine mental illness or neurological impairment, but was under the influence of alcohol or another drug at the time of the offending, will still be able to rely on a special reason if there is evidence that the impaired mental functioning was due to their pre-existing impaired mental functioning and not their intoxicated state.

In DPP v Warren and Underwood there was nothing in her honours reasoning to suggest that the accused were relying on ‘impaired mental functioning … caused solely by self-induced intoxication’.  They were relying on ‘a genuine mental illness or neurological impairment’.  There state of intoxication at the time of the offence was not part of her honours reasoning so to that extent it would appear that these amendments would make no difference if DPP v Warren and Underwood were sentenced after these amendments come into force.

The Minister also says:

The Bill will also include a new exception to the requirement that a court must impose a custodial sentence for people who commit certain Category 1 offences (other than those involving gross violence) against emergency workers, custodial officers or youth justice custodial workers on duty and whose mental or other impairment substantially and materially reduces their culpability.

Where this exception applies the court will be able to impose a new mandatory treatment and monitoring order, alone or in combination with imprisonment. This new order will require the imposition of two mandatory conditions — requiring the offender to either attend treatment or comply with a justice plan to address their specific impairment, and requiring regular attendance at court for the purposes of monitoring compliance. A mandatory treatment and monitoring order will also be able to be combined with a period of imprisonment or any other optional CCO conditions. The consequences for contravening a mandatory treatment and monitoring order will be more significant than the consequences currently in place for breaching a CCO, with limited sentencing options available for the breach of the order and the original offences.

The test will be that ‘the offender proves on the balance of probabilities that, at the time of the commission of the offence, the offender had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability’.  It is likely that Warren and Underwood could have met that test.  If that is the case they may have received a mandatory treatment and monitoring order.  It has to be noted that in the decision that was the subject of criticism, they were subject to orders to continue with treatment and to be subject to monitoring including court supervised reporting.   In effect they received the sentence that would be required under the new provisions.

Conclusion

In DPP v Warren and Underwood the sentencing judge was required to impose a custodial sentence unless special reasons existed. She found those reasons did exist so exercised her discretion according to law.  The obligation to impose the custodial sentence, except when special reasons existed, was all found in Division 2 of Part 3 of the Sentencing Act 1991 (Vic).

With the passage of the Justice Legislation Miscellaneous Amendment Bill 2018 (Vic) a sentencing court will still have to impose a custodial sentence under Division 2 of Part 3 of the Sentencing Act 1991 (Vic) unless special reasons exist.  The definition of ‘special reasons’ will have changed and it will be harder to satisfy the new tests, but it does not mean that the defendants in DPP v Warren and Underwood would not meet those tests if the case were to be heard once the changes have been made.

The next step

The Bill still has to pass through both houses of parliament so it may be subject to change.  It must then receive Royal Assent from the Governor.  The Governor will never refuse Royal Assent to a bill passed by Parliament (so those that hope that our system of government imposes a final check on parliaments being oppressive are sadly mistaken). Once assented to the law will commence on the various dates set out in s 2 of the Bill.