Child Homicide Bill unlikely to be effective

Hansard: 6 February 2008 ASSEMBLY

Mr CLARK (Box Hill) — The Crimes Amendment (Child Homicide) Bill arises from a measure that the Premier announced he would implement shortly after coming to office as Premier, when he said he would take decisive action against those who perpetrate appalling acts of violence against innocent and defenceless children. We all recall the tragic case of Cody Hutchings and grieve for the terrible fate that he suffered. We also recall the hopes of many that his untimely death would at least result in effective action to dramatically reduce the likelihood of other children suffering as he did, just as the death of Daniel Valerio in 1990 led to the introduction of mandatory reporting of child abuse in 1993.

Unfortunately I very much fear that these hopes will not be realised by this bill.

The central provision of the bill simply takes the existing offence of manslaughter and gives it the new name of child homicide when the victim is under six years of age. There is no change in the definition of the offence and no change in the maximum penalty. The government argues that by creating a separate offence it will break away from the sentencing patterns that have developed around manslaughter and allow the courts to establish new and presumably higher sentencing level practices. Yet, at the same time, the Attorney-General has linked the likely sentencing back to manslaughter, saying in his second-reading speech:

As the new offence will be closely related to manslaughter, the sentencing practices for manslaughter will continue to be relevant, but may be less constraining than they have been in the past.
All the expert advice the opposition has received from practitioners is that the measure is unlikely to make a significant, or any, difference to the sentences the courts would otherwise hand down. There are also other serious problems with the government’s response to horrific child abuse.

First of all, the new offence can only apply if the accused is either not prosecuted for, or not convicted of, a charge of murder. The new offence may even end up resulting in perpetrators being convicted of the lesser offence of child homicide when a conviction for murder might otherwise have been achieved.

Secondly, the new offence does nothing to deal with the responsibility of others who had care of, or shared a house with, or had regular contact with the deceased child and knew, or ought to have known, at least some of what was happening to that child and yet failed to take steps to protect the child.
Thirdly, there have been years of delay in the Attorney-General’s response to the Law Reform Commission’s recommended changes to family violence law, which he received in December 2005, and in introducing measures such as interim intervention orders which have the potential to assist thousands of victims of family violence each year.

Finally, we are still as a community lacking comprehensive answers to the question of how we can best identify and protect children at risk in dysfunctional families and other high-risk contexts, and act to protect children before these tragedies occur.

Let us look in detail at the provisions of the bill. As I said, its principal provision creates an offence of child homicide instead of manslaughter where a person kills a child aged under six years in circumstances that would otherwise constitute manslaughter. The bill sets a 20-year maximum penalty for the offence, which is the same maximum as currently applies to manslaughter. The bill makes provision for alternative verdicts to be returned by juries in cases involving child homicide in a similar manner and in similar circumstances as currently apply in cases involving manslaughter.

Separately from these provisions relating to child homicide the bill also sets a maximum penalty of 10 years instead of 5 years for negligently causing serious injury; it splits the current offence of dangerous driving causing death or serious injury into separate offences for death and for serious injury; and it sets a maximum penalty of 10 years instead of 5 years for dangerous driving causing death, and in relation to those provisions, the bill applies the newer penalties to offences that are committed on or after the commencement of the amendments.

To place the child homicide provisions in context, we need to look at how the law relating to murder and manslaughter currently operates and in particular we need to look at what constitutes the mental elements for the offences of murder and manslaughter.

At common law, which applies in Victoria, the mental element, which is what lawyers refer to as ‘mens rea’, for murder is constituted by the defendant acting with either the intention to kill or the intention to inflict grievous bodily harm. In addition the mens rea for murder can be satisfied by recklessness as to whether death or serious bodily injury would result, and in turn at common-law recklessness is constituted for the purposes of murder by subjective foresight that death or grievous bodily injury would result as a probability. It is not satisfied by foresight of death or grievous bodily harm as a mere possibility.

When we look at the offence of manslaughter, we see that it can be constituted in two separate ways. The first is when death results from an unlawful dangerous act, and the second is when death results from criminal negligence. Obviously in the context now under consideration we are primarily concerned with deaths which result from unlawful dangerous acts.

It should go without saying that if the conduct of an offender that results in the death of a child is committed with the mental element that constitutes murder — that is, either with intention to kill or intention to inflict grievous bodily harm or with recklessness as to whether death or serious bodily injury would result, being actual foresight by the offender that that would result as a probability — the offender should be prosecuted for murder. So we have a situation where manslaughter may apply at present but where under this legislation child homicide would apply in circumstances where for some reason either a prosecution or a conviction for murder does not occur.

It should go without saying that the maximum penalty of life imprisonment for murder is a far higher maximum than for manslaughter or for the proposed offence of child homicide, and that a substantially higher actual penalty should result if the offender is convicted of murder — and that, of course, is exactly appropriate and exactly what the community would expect.

This bill applies where there is either no prosecution or no conviction for murder, being the prosecution that should be brought if the facts support it.

In relation to the offence proposed by this legislation, as I have said, all the expert evidence that we have received from practitioners is that this measure is unlikely to make any significant difference to the sentences that the courts would otherwise hand down in respect of a manslaughter conviction. I refer to the Herald Sun of 18 August 2007, which quotes Jeremy Rapke, QC, who at that time was Victoria’s acting Director of Public Prosecutions (DPP). He has now, of course, been appointed as the Director of Public Prosecutions. The article states:

On the new charge of child homicide Mr Rapke said the plan was laudable but he wanted to see the detail of the legislation. The acting DPP cautioned that a new charge of child homicide could mean some child killers avoiding a murder charge.

‘One of the problems I see with a piece of legislation like that might be it’s open to criticism that you are diminishing a child’s death by putting into a category somewhat lower than murder, giving it a maximum penalty of 20 years’, he said.
Mr Rapke said the benefit was that it would help overcome the difficulty of getting murder convictions in child killing cases.

So we have Victoria’s Director of Public Prosecutions expressing very serious concern about how this offence could operate and raising one of the serious problems I alluded to at the outset of this debate.

The Law Institute of Victoria (LIV) has also written to the opposition, and the opposition appreciates the very detailed and considered views that the institute has provided to it. I believe institute has written in similar terms to the Attorney-General. The institute said:

The proposed new offence involves a superficial amendment with no substantive change to the law in this area. The maximum penalty will remain the same although it appears that the charge is designed to encourage judges to give sentences at the higher end of the range.
Later on it in its letter it said:

The case of R v. McMaster (2007) VSC 133 has been the catalyst for the proposed amendments. The LIV notes that this case differs in key respects from other typical cases. The victim was significantly older than in other cases.

The offender pleaded guilty to manslaughter after a jury failed to reach a verdict on the charges of both murder and manslaughter. The sentence given was higher than in other cases and the Crown has appealed against that sentence. It is difficult to see how the introduction of a new offence of child homicide would have made a material difference to the outcome in this case in respect of either the inability of the jury to reach a verdict or the sentence imposed by the judge.
One very experienced criminal barrister who has written to me in relation to this legislation described the introduction of child homicide as ‘an exercise in smoke and mirrors’. He said it is the crime of manslaughter with one added element, namely that the victim must be a child under the age of six years.

The Crime Victims Support Association’s Noel McNamara has also written to the opposition. He says this of the legislation:

It is a step in the right direction, however you could make the 20 years maximum 40 years as it has no teeth, the judge has the right to set the minimum, and as shown in the past that some in the judiciary will ‘thumb their noses’ at the law and will give whatever minimum they feel like on sentencing day.
Mr McNamara went on to make the point that there also needs to be a law in place which can potentially bring under scrutiny the conduct of others involved with the child and the circumstances of the death of the child.

The group People Against Lenient Sentencing has also expressed some views on this legislation on its website:

After recent events around Australia with regards child abuse and death, it is now time for all state and territory governments to look at introducing a law that will hold the parents of a child accountable for their suffering and pain, not to mention death.

…

… we would ask the relevant governments to consider implementing a charge of culpable parenting. This charge could possibly carry a maximum sentence of say five years and would also apply to state carers such as DOCS and DHS as they are well aware of the environments that they are placing children back into. What this charge would do is send a clear message to all parents and carers that they have a direct responsibility for the welfare of children not to mention a duty of care and as such they should feel the full weight of the law if they happen to fail this test.

These contributions from the Crime Victims Support Association and People Against Lenient Sentencing bear out what many others are saying — that is, one of the crucial elements in the legislative and legal response to violence against children and the death of children in circumstances of abuse is the imposition of a degree of responsibility on a wide range of people other than the offender. These people have had contact with the child, are in a position to know at least some of what is happening and ought to be taking steps to protect the child.

This is exactly what has been done in the United Kingdom. In the UK a new offence of causing or allowing the death of a child or vulnerable adult was put on the statute books in section 5 of the Domestic Violence, Crime and Victims Act 2004.

The central element of the offence created there is that a person is guilty of an offence if a child or vulnerable adult dies as a result of the unlawful act of a person who was a member of the same household as the victim and had frequent contact with him; if the defendant was a person in that situation at the time of the act; if at the time there was a significant risk of serious physical harm being caused to the victim by the unlawful act of such a person; and if the accused was the person who caused the victim’s death or he was or ought to have been aware of the risk referred to and failed to take such steps as he could reasonably have been expected to take to protect the victim from the risk, and the act occurred in circumstances of the kind that the accused foresaw or ought to have foreseen.

When the legislation came into operation the Home Office minister, Baroness Scotland, made a statement which was published on the website cjsonline.gov.uk, in which she said:

It is clearly unacceptable that where we know one of a small group of people must have caused the death, but we do not know which one, those people should all escape justice. Where there are co-accused it is sometimes possible to bring charges of cruelty or neglect against them both but these charges do not reflect the seriousness of the offence.

The new offence also reflects this government’s belief that, where adult household members have frequent contact with a child or vulnerable adult, both the person who caused the death, and the person who stood by and did not prevent it, must bear some criminal responsibility for what happened.

That latter part of the Home Office minister’s statement encapsulates the principle that needs to be captured in further legislative measures here in Victoria. The UK legislation was also commented on in the same statement by Action on Elder Abuse chief executive, Gary FitzGerald, who said:

Sadly, it’s not just children who suffer behind closed family doors — anyone can be a victim of domestic violence and that includes vulnerable older people, but this legislation sends out a very clear message that such abuse will not be tolerated. We know from the calls to our helpline that the majority of elder abuse takes place in the family home and, as in any abuse situation, can result in the most appalling outcomes including death.
I should add that the UK legislation defines ‘vulnerable adult’ for these purposes as meaning:

… a person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise.
Whether or not the exact elements of the UK legislation are what we should proceed with in Victoria can be the subject of discussion, and we can strive to see if there are ways we can do things better than what the UK has done. But certainly the UK has introduced this new offence. So far as I can tell it was done with across-the-board support within the UK Parliament. It sets the principle firmly on a legislative basis that everybody who is involved with a child and who should know what is happening and stands by and does not take reasonable action to prevent it, must accept some criminal responsibility.

In a sense to adopt this legislation in Victoria would be setting in place a new principle on a par in importance with the principle that was set in place during the debates in the 1990s, that professionals who have contact with children have an obligation to report and to take action to protect that child. We say that other members of the household and those in close contact with the child have a similar duty. Some measure like that is going to be vital if we are going to make significant progress down the road of providing greater protection to vulnerable children in our society.

As I said previously, another aspect of this issue of concern to the opposition has been the significant delays in the introduction of the legislative measures to address family violence, which of course is violence that can be perpetrated against any member of a family household. Back in August this year the Attorney-General announced a series of measures that he said the government was going to introduce.

He referred to measures that would make it easier for victims of family violence to remain in the family home with their children if they wished, while the perpetrator of violence would be required to leave; make it more difficult for self-represented perpetrators of violence to cross-examine their victims in court; provide a comprehensive definition of family violence that included economic and emotional abuse, as well as other types of threatening and controlling behaviour; and broaden the definition of ‘family member’ to cover unpaid carers in informal care arrangements and family members in contemporary families.

A number of these announcements made by the Attorney-General are very open-ended, and when proposals come before the house they will need to be considered carefully on their merits. But the point I am making at this stage is that any such legislative action is now long overdue in Victoria.

The government announced back in August last year that these measures were due to come before the Parliament before the end of 2007, as was asserted in the minister’s media release, which reads:

The government will consult with family violence service providers, community organisations and others, with a view to introducing legislation before the end of 2007.
That legislation has still not reached this Parliament, despite the fact that the initial reference to the Law Reform Commission that gave rise to the report that the Attorney-General was given went to the commission in 2002. The commission gave its report to the Attorney-General in December 2005 so he had almost two years to consider and reflect on what the commission had recommended, yet in August last year he was simply announcing a range of proposals on which he was going to undertake even further consultation.

One would have thought that, if he had felt that further consultation was needed, he would have been undertaking it in the two-year period since the commission’s recommendation reached him back in December 2005. One of the other measures that has been caught up in the delay on the part of the Attorney-General is a measure that was put forward by the Liberal Party back in 2003 to allow interim intervention orders applying for up to 72 hours to be issued by police. Under our proposal they could be obtained with the verbal telephone authorisation of a magistrate or bail justice, the reason being that it is often too dangerous for police to leave a victim while seeking authorisation from a court. If such interim orders could be issued, they would offer greater protection for victims of domestic violence and their families.

Back in July last year the then Premier, Mr Bracks, announced that from mid-2008 police would be able under a trial program to issue interim on-the-spot safety notices lasting for up to 72 hours to protect domestic violence victims in a way similar to intervention orders but without the need to go before a court.

We have gone from 2003 when the Liberal Party put its proposal forward to mid-2007 when the government said it would introduce a similar measure, but even then it was not to be introduced until mid-2008 and then only under a trial program. We all recognise the importance of effective action against domestic violence, and it is completely unacceptable that there have been such protracted delays in the legislative components of action against domestic violence coming into this Parliament. It is particularly unacceptable for police even today not to have the power to obtain interim intervention orders, something which has the support of both sides of the house and which we indicated in July last year we would have been perfectly happy to have proceed expeditiously through this house ahead of any other measures the government proposed to include in its bill.

There is a lot more that needs to be done in relation to family violence.

On top of the specific matters I have referred to on the legal side of things, we also need to put a lot more effort into the aspect of identifying children at risk, working out how we can support dysfunctional families — families with children at risk — and how we can intervene in a timely manner and in the most effective manner to protect those children who are at risk. In that respect I want to quote briefly from a letter from MacKillop Family Services to my colleague the member for Doncaster, which says:

… assertive, coordinated and timely intervention is the most effective way to prevent harm to children where a risk has been identified. MacKillop Family Services is very supportive of the Child First initiative and associated enhancement of family support services. These initiatives need to be complemented by additional emphasis and institutional support for cross-system linkages between housing, drug and alcohol services, mental health, justice, and child protection and support.

In conclusion, the opposition will support just about anything that will better protect our children. We hope this bill will bring some benefit to Victorian children in the future, but we very much fear it will not. The government has still not demonstrated how the bill will in practice achieve significantly tougher sentences when it simply creates a new offence that carries the same maximum penalty as the existing manslaughter offence.

The government has not faced up to the really difficult question of what to do about other people who know the abuse is going on but fail to do anything about it. Nor have they faced up to the issue of how to best identify and protect children at risk in dysfunctional families. On top of that, the government has still not acted on the Law Reform Commission’s recommendations that the Attorney-General received back in December 2005. There is much more that needs to be done to protect vulnerable children in our community.

All members of this house need to do whatever they can to play their part in taking that overdue further action.