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Liberty Victoria is opposed to the Crimes Amendment (Ramming of Police Vehicles) Bill 2017 (“the Bill”).
We note that the Bill has been introduced by the Coalition Opposition.
There is simply no need for the Bill. It forms part of the law and order auction leading up to the next State election.
The offence of “ramming" a police vehicle would already constitute criminal damage contrary to s 197 of the Crimes Act 1958, with a maximum penalty of 10 years’ imprisonment (the same as that proposed by the Bill), and in some circumstances may also constitute reckless conduct endangering life or serious injury contrary to ss 22 and 23 of the Crimes Act 1958.
There is no material cited by the proponents of the Bill that current sentencing practices for this kind of offence are inadequate. The practical experience of those practising in the criminal law is that if an offender intentionally drives a vehicle into a police vehicle in order to ram it, that would result in imprisonment.
Further, the mens rea of the proposed new offence is ambiguous - does proposed s.247M(3) of the Crimes Act 1958 mean that a person can be found guilty of an offence of ramming a police vehicle even as a passenger or outside the vehicle without intending that the police vehicle be rammed? Is recklessness or negligence sufficient?
For reasons explained in our previous submissions, Liberty Victoria is opposed to mandatory and/or prescriptive sentencing (in the case of this Bill, a mandatory minimum non-parole period of 2 years’ imprisonment unless a “special reason” is established).
The research clearly demonstrates that when fully informed of the circumstances, the community does not regard current sentencing practices as inadequate (with a limited exception for some categories of sexual offending against children).
As Liberty Victoria has previously argued, the problem with mandatory sentencing is that it removes the discretion from the judicial officer to impose a sentence that is appropriate having regard to the circumstances of the particular instance of the offence. It is contrary to the fundamental sentencing principle that the punishment should be proportionate to the seriousness of the offence having regard to the circumstances of the offender.
When faced with a mandatory minimum periods of imprisonment (whether with regard to the head sentence or non-parole period), accused persons are much less likely to plead guilty to offences. Accordingly, mandatory sentencing reforms (including the removal of the CCO as a sentencing option) are bound to see an increase in contested committals and trials which places further pressure on a Court system that is already strained and suffering from serious delays. Those delays also have a huge impact on complainants and their families and friends.
Further, under such regimes it will fall upon prosecutors and informants to determine whether to proceed on offences that attract a mandatory minimum term (and/or where an offender cannot receive a CCO). Mandatory sentencing reforms transfer the burden of decision-making from the judiciary to the executive, where there is less transparency and greater room for arbitrary and inconsistent decision-making without recourse to judicial review or consideration by an appellate court.
Judicial officers need more, not fewer, sentencing options. That enables judges and magistrates to do justice in the individual case. There are already proper protections to ensure that inadequate sentences can be appealed against if necessary and the Court of Appeal has recently provided significant guidance as to when it is inappropriate to sentence an offender to a CCO.
The reality is that this Bill reflects a further step towards the entrenchment of mandatory sentencing in Victoria. It should be opposed.