Keith Locke on the Sentencing (Aggravating Factors) Amendment Bill – first reading



The Green Party will be supporting this bill to the select committee, and it will be interested to see the submissions at the select committee level, because it is a somewhat puzzling bill. As other speakers have said, it is a very short bill and adds aggravating factors to a number of aggravating factors that judges have to take into account in sentencing. As has been pointed out, they already do so.

It is clear that police officers and prison officers put themselves in harm’s way for our good, and I think that judges always take that fact into consideration. They try as best they can to protect police officers and discourage people from committing offences against them, particularly assaults. There are already some provisions in the Crimes Act and Summary Offences Act in relation to assaults on police officers. The provisions under the Summary Offences Act relating to assaults on police officers carry a maximum penalty of 6 months’ imprisonment. Under the Crimes Act, the maximum is 14 years’ imprisonment for using a firearm against any police, traffic, or prison officer, and there is a maximum of 3 years’ imprisonment for the aggravated assault on a constable in the execution of his or her duty. There are already some provisions, and if the Government really thinks it needs to add that the victim is a constable or a prison officer acting in the course of his or her duty, it is probably the right course to add it to the aggravating factors in the Sentencing Act that the judge takes account of during sentencing.

But this provision could have been put into a bigger bill, instead of going through all the hassle for this small bill. As even the regulatory impact statement indicates, this is a fairly meaningless extra provision, and it would be very hard to test the impact on sentencing, if any, of what we are voting on here and, if it goes through to its third reading, of what we are voting on as a Parliament. To quote from the regulatory impact statement issued by the Acting General Manager, Crime Prevention and Criminal Justice, Malcolm Luey: “The proposed amendment will not require the court to take any specific action in terms of the type or severity of sentence imposed. The court will be required to take this factor into account—along with other specified and unspecified aggravating factors—in arriving at the appropriate sentence to be imposed in a particular case. Because judges’ assessment of aggravating and mitigating factors are not amenable to empirical analysis and the proposed amendment does not entail specific action by the court, no monitoring or evaluation of the proposed amendment is possible.” So we are left a bit up in the air about the effect of this amendment.

If we look at the existing provision under the Sentencing Act 2002 in terms of aggravating factors, we see that they are pretty common-sense ones that judges would take into account anyhow, such as whether the offence involved actual or threatened violence, or involved the actual or threatened use of a weapon. Obviously, judges would take those factors into account. Judges also take into account whether the offence involved unlawful entry to, or unlawful presence in, a dwelling house. A home invasion would obviously be taken into account. Whether the offender was on bail is a factor that judges take into account every day. Other factors include whether there was particular cruelty or the abuse of a position of trust, and whether the victim was particularly vulnerable because of age or health because he or she was disabled, etc. Clearly judges take those factors into account. I suppose the next one is a relevant one to put into that particular section of the Sentencing Act. It is whether the offender committed the offence partly or wholly because of hostility towards a group of persons who have the same characteristics of race, character, nationality, gender identity, sexual orientation, age, or disability. I think it is good to single out that factor, because we do not want the cancer of prejudice extending and expanding in our society. So that is quite a good one.

Whether the offence involved a terrorist act is an obvious one to put in. Other factors include whether the person is part of an organised criminal group, whether there was premeditation, and the nature and extent of previous convictions. Those are obvious things to put in as aggravating factors. There is nothing particularly wrong, I suppose, with adding whether the offence was committed on a police or prison officer, but we are not really adding a great deal to the law by doing that.

The other side of this is worth commenting on. The other side of adding of this factor as an aggravating factor, and the other provisions in the Crimes Act and Summary Offences Act about there being an extra penalty for assaults on officers in the pursuit of their duty, is that police officers have to take particular care not to misuse that provision of a harsher penalty. We sometimes hear of complaints from people who are up before the courts, and sometimes from the lawyers defending them, that the charge of an assault on a constable has been unnecessarily brought. Often there is a grey area between the obstruction of a police officer, resisting arrest, and an assault on a police officer. If there is to be an extra penalty, and a significant extra penalty, for an assault on a constable, then police officers who may happen to be a bit prejudiced towards somebody have to be careful that they do not say they will slap a charge of assault on a person rather than a lesser charge of obstructing the police officer or resisting arrest. That is on the other side of the equation. If Parliament is to protect police officers and prison officers in this way, which we think is a good thing, then there an extra responsibility is placed on police officers and prison officers not to misuse that provision. With those few words, I say that the Green Party will be interested in the discussion at the select committee. We will see what the experts—particularly the legal experts, law societies, and other experts in this field—say about this particular additional provision in this massive bill of less than a page, really. Thanks.