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Family violence and mandatory sentencing
The wounds would have killed her if she had arrived at hospital much later, the magistrate would subsequently say.
In March 2013, the woman – dubbed T. M. by community lawyers – was found wrapped in a bloodied sheet on a public street in north Western Australia after she was assaulted by her partner, the father of her 10-month-old baby.
Soon after police arrived, the scene got out of hand and T. M. spat and kicked at the police officers. As she was arrested and taken to hospital, her partner – the man who had just assaulted her – was able to drive more than 900 kilometres away with their child.
While in hospital, police “failed to deal with [her] as the victim of an assault”, Western Australia’s Corruption and Crime Commission later found, and were accused of making little effort to find her son. The next day, T. M.’s partner sexually assaulted and killed their baby.
T. M. was eventually given a one-year suspended sentence for the assault, and only avoided a mandatory jail sentence because she didn’t cause “bodily harm” to the police officer.
“I just can’t jail her with what she’s gone through,” the magistrate said. “What happened to her made a great deal of difference to the way she reacted to [the police’s] presence.”
Community lawyers say the baby’s death could have been prevented if police focused more on finding the perpetrator of domestic violence rather than having to charge T. M. due to mandatory sentencing laws in the state.
And there are concerns that similar mandatory sentencing rules for assaulting emergency service workers soon to be in force in Victoria will have an unintended impact on the victims of family violence, potentially leading to similar, horrific cases.
“We have a real, real fear that the victims of domestic violence themselves will be caught up in it,” Federation of Community Legal Centres director of strategy, policy and engagement Melanie Poole says.
The Justice Legislation Miscellaneous Amendment Bill 2018, introduced to Victorian Parliament in June, serves to strengthen the mandatory sentencing rules for anyone found to have injured an emergency worker, and significantly limits exceptions to these rules.
Community legal groups and other drug, alcohol and family violence organisations say they weren’t consulted on the legislation, and that it could lead to less reporting of family violence and more of the state’s most vulnerable being imprisoned.
This “rushed and thoughtless” push towards further mandatory sentencing risks “undermining” the positive work done to address family violence, Poole says.
“The unintended consequences of these mandatory sentencing laws will cancel out some of the great family violence work that the Andrews government has done,” Poole says. “It’s lazy politics.”
The new laws, announced in May, remove a number of exceptions to a mandatory six-month jail sentence for anyone found to have injured an emergency worker and are expected to be passed by the upper house in September.
They build on laws passed by the previous Coalition government implementing mandatory sentence rules.
Under the new laws, assaulting an emergency worker – a paramedic, police officer, prison guard or protective services officers – will be listed as a one offence, along with rape and murder, and will carry automatic jail time of up to five years. Other offences against emergency workers will carry an automatic six-month sentence.
Offenders will no longer be able to seek a special exception due to drugs, alcohol or “psychosocial immaturity” and special circumstances will be significantly limited.
Poole says the scope of the laws is “truly extraordinary”.
“All you have to do is merely scratch or verbally assault a police officer, prison officer or other emergency worker and you’ll find yourself in jail for at least six months,” she says.
The new legislation was quickly introduced after two women were spared a jail sentence for a 2016 assault on a paramedic. The judge used “special reasons” to avoid the mandatory sentencing rules, due to their experiences of childhood abuse, mental health problems and rehabilitation since the attack.
The decision was widely criticised and used as ammunition by the state Opposition to claim the government isn’t tough on crime, a central theme in the upcoming election campaign.
The Andrews government has made addressing family violence one of its central goals in office, but Fitzroy Legal Service social action, policy and reform manager Meghan Fitzgerald says the new legislation goes against this.
“There was an abject failure to engage in the most fundamental consultation process, and there will be unintended impacts,” Fitzgerald says.
“It seems it was a knee-jerk politicised decision-making process which involved just two male union leaders and the premier. The way women have been explicitly excluded from this process says something about the progress we’ve actually made.”
In response to these concerns, Victorian attorney-general Martin Pakula says the new laws will make sentences “more in line with community expectations”.
“Our police, paramedics, firefighters and other emergency workers put their lives on the line every day to keep us safe – it is unacceptable that they should be attacked or assaulted just for doing their job,” he says. “The government will continue to work with the Emergency Worker Harm Reference Group to ensure that emergency workers are properly protected under our laws.”
But the community groups say the laws will lead to unintended consequences, including making women less likely to report family violence, with these people commonly misidentified as the offender and sometimes lashing out at emergency workers.
“We know in these volatile moments of family violence victims can injure police,” she says.
“We see that because they often get misidentified as the perpetrator. You can understand the difficulty if you’ve just been beaten and the police are trying to arrest you.”
As seen with the T. M. case in Western Australia, recent research by Women’s Legal Service Victoria found that misidentification of domestic violence victims is common, with one in eight applications for an intervention order made against the wrong person.
The government has said that a “special reasons” exception still remains within the laws that can be applied for “substantial and compelling circumstances” such as extreme family violence, despite judges being ordered to give “less weight to the life and circumstances of the offender”.
The new laws could also lead those experiencing family violence to be less likely to call authorities, for fear that they or their partners or children will be imprisoned, she says.
“When you introduce laws like this it decreases the number of people calling 000,” Poole says. “And the solution the majority of the time isn’t mandatory imprisonment for the partner. Often women don’t want the father of the child, who may be the sole breadwinner, suddenly out of work and in prison.
“That removes all the agency from the women in actually being able to give any input into what kind of protections and supports she needs, and what response she wants. They’ll be far less likely to see the police as a source of support.”
Domestic Violence Victoria is also staunchly opposed to the legislation, saying it will “place people at serious risk” and that “many women will fear calling for help”.
The new laws do include an exception if it can be proved that the offender had “impaired mental functioning at the time of the offence that is causally linked to the commission of the offence and substantially and materially reduces their culpability”, but Poole says this is “unworkable”.
Under the exception, the alleged offender must be assessed by a psychiatrist or registered psychologist, a process that can take up to eight weeks, during which the offender is likely to be in prison.
“Someone in a state of extreme psychosis or trauma or having a schizophrenic episode, that person is then going to be held in jail for at least eight weeks until they can be assessed,” Poole says.
The exception also won’t be applied when the mental impairment is caused “solely by self-induced intoxication”.
“That’s an impossible test of causation,” Poole says. “The intent has to be because of a mental health problem, not because of anything else, including intoxication. Experts say that you can’t separate mental health issues from intoxication – they’re linked.”
This could lead to situations where those with a mental illness receive a mandatory sentence because they had one drink before the offence took place, she says.
“Even if they’ve got an old lady with dementia who abuses an ambulance officer, if she’s had a glass of sherry before then she’s included as well,” Poole says. “It might be obvious that she has dementia, but if there’s been intoxication then it’s hard to prove that the glass of sherry didn’t break the chain of causation.”
This will lead to vulnerable members of society, including those experiencing family violence, with mental health issues and Indigenous Australians being further overrepresented in prisons, Fitzgerald says.
“It’s not going to enhance community safety, it will result in an overrepresentation of the people we already know and don’t want overrepresented in the prison system, and there will be massive pressure on the community services sector to manage crisis situations,” she says.
The Sentencing Advisory Council is also strongly opposed to mandatory sentencing laws, with chair emeritus Arie Freiberg labelling it a “consistently wrong approach”.
“It’s a bit tragic,” Freiberg says. “Clearly the facts don’t make a difference in this debate. It’s not based on a rational analysis of whether it works or not, it’s not evidence-based policy.”
This article was first published in the print edition of The Saturday Paper on Sep 1, 2018 as "Violent stumble".
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