Crimes Legislation Amendment (Sexual Crimes against Children and Community Protection Measures) Bill 2019
This Bill is another example of this Government’s commitment to protect children in Australia and overseas from the dangers of sexual exploitation and abuse and to improve justice outcomes for survivors of child sex offences.
Sexual crimes against children destroy lives. The depraved inpiduals who prey on these most vulnerable members of our community for their own sexual gratification or financial gain, are too often handed short jail terms and are released into the community without any supervision, or worse still, without serving a single day in prison. Meanwhile victims are left to face the resulting trauma for the rest of their lives.
These current sentencing practices for Commonwealth child sex offences are out of step with community expectations; they do not reflect the severity of the harm inflicted by these predators, and they fail to protect our children and communities from further offending. This Government is completely committed to ensuring that the predators who commit these heinous crimes receive the sorts of sentences that the community would expect.
The Bill achieves this through reforms that target inadequacies in the existing legal framework at key points in the criminal justice process from bail and sentencing, to post-release supervision. It also provides the tools to combat emerging forms of child sexual abuse which is becoming increasingly prevalent due to technological developments.
The Bill complements a broad package of reforms already introduced by the Coalition during the 45th parliament, which strengthened the laws relating to child sexual abuse and created new protections for the community. This included tough new measures to stop child sex offenders from travelling overseas to abuse children and the introduction of Carly’s law, which targets online predators who use the internet to prepare or plan to sexually abuse children. This Bill also complements the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 which the Government introduced in July of this year.
Like many Australians, this Government is fed up with lenient sentencing practices that fail to protect the community from child sex offenders. This Bill will vastly improve justice outcomes and community safety through a range of measures:
- mandatory minimum sentences for the most serious child sex offences and for recipist offenders
- increased maximum penalties across the spectrum of child sex offences, including up to life imprisonment for the most serious offences
- presumptions in favour of cumulative sentences and actual imprisonment
- ensuring that all sex offenders, upon release from custody, are adequately supervised and subject to appropriate rehabilitative conditions
- an overhaul of the sentencing factors for all federal offenders
- preventing courts from discounting sentences on the basis of good character where this is used to facilitate the crime, and
- emphasising the importance of access to rehabilitation and treatment when sentencing child sex offenders.
In the last financial year, 28 per cent of Commonwealth child sex offenders walked away with a non-custodial sentence following their convictions for child sex crimes. In the majority of cases in the last five years where offenders did receive sentences of actual imprisonment, the most common total sentence was just 18 months with six months being served in custody.
Too often, child sex offenders spend insufficient time in custody to undergo treatment programs or receive any significant rehabilitation before being eligible for release back into the community. Further, upon their release, many are not subject to parole or any other form of supervision, posing a continuing threat to community safety.
This Bill addresses this unacceptable situation by introducing a sentencing presumption in favour of actual imprisonment, rebuttable only in exceptional circumstances. This will reduce the number of wholly suspended sentences being handed down for Commonwealth child sex offenders.
The Bill introduces minimum terms of five to seven years for the most serious child sex offences. This represents approximately 25 per cent of the available maximum penalty for such offences. Recipist child sex offenders will also face minimum sentences from one to four years across the spectrum of Commonwealth child sex offences at the Commonwealth level.
In all cases judges will retain complete discretion in the setting of the minimum amount of time the offender spends in custody. This will ensure they retain broad capacity to tailor sentences that foster rehabilitation and allow for suitable post-release supervision of offenders. This means that offenders should no longer be released unconditionally back into the community and will instead be supervised and subject to strict conditions—ensuring the best outcomes for community safety.
Judges will also retain discretion to deviate from the minimum terms set statutorily by up to 25% each, to allow for recognition of early guilty pleas and cooperation with law enforcement. This is an important provision to ensure that we do not dis-incentivise demonstrations of remorse by offenders that facilitate the administration of justice.
The Bill also contains exemptions to the minimum sentencing scheme for offenders who are under 18 when they commit an offence. Young people engaging in conduct such as ‘sexting’ will therefore not be caught up in mandatory imprisonment.
The existing protections in the Crimes Act for persons suffering from a mental illness or intellectual disability will still apply to people charged with child sex offences – the Bill will just ensure that a court can make a residential treatment order, if they consider that the appropriate order in the circumstances, and where available under state and territory law.
A further safeguard is that law enforcement officers and prosecutors will retain their broad discretions regarding whether or not to charge or prosecute inpiduals.
The introduction of mandatory sentencing complements a new presumption in favour of cumulative sentences for multiple child sex offences. This will ensure that sentences imposed adequately reflect the harm done to each inpidual victim, or the harm done by each inpidual crime.
The presumption in favour of cumulative sentences can be set aside if the court is satisfied that imposing sentences concurrently or with only partial-cumulation will produce a sentence of appropriate severity. The principle of totality will also continue to apply in the sentencing exercise to guard against unjust outcomes.
Criminalising emerging forms of child sexual abuse
Disturbing new forms of child sexual abuse are on the rise due to technological developments and increased global interconnectedness. This Bill will fill gaps in the existing legal framework by introducing new offences to cover emerging forms of child sexual abuse.
An ever increasing number of online services profit from providing or facilitating the exchange and production of child abuse material. Currently, inpiduals behind such services can only be prosecuted where it can be proven they are also accessing child abuse material or encouraging others to do so. This Bill will introduce a new offence allowing a sentence of up to 20 years imprisonment, to ensure the providers of such services can be held to account for facilitating access to, and encouraging the production of, child abuse material.
The Bill also introduces a new offence criminalising the grooming of third parties to make it easier to procure children to engage in sexual activity in Australia and overseas. This is necessary to combat the growing prevalence of offenders grooming adults, such as parents or carers, domestically or in developing countries via the internet, with the aim of procuring a child for sexual abuse.
The Bill also clarifies the scope of existing offences to create greater certainty regarding the types of acts covered. For example it clarifies that engaging in sexual activity with a child will include live online streaming of sexual abuse of children.
New aggravated forms of child sex offences and aggravating factors
The Government is deeply disturbed by the emerging trend where offenders inflict severe violence on children alongside sexual abuse. To ensure that this conduct is thoroughly and appropriately punished, the Bill will criminalise activities that aggravate particular types of sexual offending such as subjecting a child to cruel, inhuman or degrading treatment, and causing the death of the child.
This Bill also introduces new aggravating factors that a court must take into account when sentencing an offender for a relevant offence. These would apply if the victim was under the age of 10 at the time of the offending and if multiple people were involved in the offending.
Protecting vulnerable persons
The Government remains committed to strengthening the protections afforded to child and other vulnerable witnesses giving evidence in Commonwealth criminal proceedings. This Bill improves justice outcomes by limiting the re-traumatisation of vulnerable witnesses by removing barriers to the admission of pre-recorded video evidence and ensuring that they are not subject to cross-examination at committal and other preliminary hearings, thus allowing them to put their best evidence forward at trial. These measures are also in line with recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse.
Another important community protection measure introduced through this Bill is the establishment of a presumption against bail for recipist child sex offenders or those charged with the most serious child sex offences. This presumption against bail is rebuttable and courts may still grant bail if satisfied that it is appropriate in the circumstances to do.
In considering bail for repeat child sex offenders or those charged with the most serious child sex offences, there is an expectation that, for the safety of the community, bail should be refused, unless the accused person can satisfy the court there are circumstances which justify their conditional release.
Post release options
At the other end of the justice process, this Bill introduces a requirement for the courts to set treatment and supervision conditions for all child sex offenders upon sentencing to prevent such offenders from being released without supervision and appropriate treatment conditions.
To better protect the community, this Bill also introduces community safety as a primary consideration when deciding whether a federal offender’s parole should be revoked.
The Bill will also ensure that where an offender’s parole has been revoked they can expect to serve a period of time in custody.
This Bill signifies this Government’s commitment to addressing child sex offences that occur both domestically and overseas and to ensuring that the Australian community is protected from these heinous crimes. This Government is committed to protecting vulnerable children from these abhorrent crimes, and will be seeking to urgently pass these measures this year, to enable these present inadequacies in sentencing and other inadequacies in the criminal justice system to be addressed as soon as possible.
These new measures are essential to end the all-too-common scenario of child sex offenders walking free with no supervision after conviction or following brief terms of imprisonment. Such outcomes offend community values and expectations for how crimes of this nature will be dealt with, they compound the pain and trauma of victims and they further endanger the safety of the Australian community.
For too long, child sex offenders have been receiving inadequate sentences for their crimes that are completely out of step with community expectations and it is time for this to change.