Hard on crime, soft on sense

Opinion | Daniel Emerson
A victim of a home invasion recovers in hospital. Picture: Nic Ellis/The West Australian
A victim of a home invasion recovers in hospital. Picture: Nic Ellis/The West Australian

Mental illness and the criminal justice system have never sat well together and there is little prospect of that changing if the past depressing week in Parliament is anything to go by.

The Legislative Assembly is debating laws setting mandatory minimum jail terms for serious and sexual assaults during burglaries, which the Barnett Government made in a tough-on-crime election pitch at the 2013 election.

The laws set mandatory minimum terms of 15 years for rape, 7½ years for serious physical assault and five years and three months for aggravated indecent assault during home invasions.

Mandatory sentences are popular with the public and hence favoured by politicians but loathed by the judiciary, which resists any attempt to water down its discretion when meting out punishment.

Labor, in view of the mandate the Government received, is not opposing the laws but this week flagged an amendment attempting to shield mentally impaired people from the mandatory minimum sentences.

Police Minister Liza Harvey has carriage of the legislation rather than the Attorney- General, who traditionally has carriage of changes to criminal law, prompting Labor to speculate the Bill has more to do with politics than sound public policy.

Harvey did little to dispel that suspicion when she rounded on Labor’s proposed amendment in a base political attack during question time, claiming it would allow drug addicts to invade homes with impunity.

“It will basically give a get out of jail free card to anybody under the influence of methamphetamine,” she thundered on Tuesday.

“Anyone who is coming down from a methamphetamine binge would not be subject to the mandatory penalties in our legislation. It will water the legislation down and basically make it unworkable.”

The WA Association for Mental Health was quick to pull Harvey up on her interpretation of mental impairment, a legal term couched in the Criminal Law (Mentally Impaired Accused) Act.

It comprises intellectual disability, mental illness, brain damage or senility — not intoxication — a disturbing misunderstanding of the law by someone we pay to get it right.

“It’s very disappointing that these sorts of misleading and stigmatising comments are able to be perpetuated,” lamented WAAMH president Alison Xamon, who gave Labor’s amendment her support.

“It is very important that when someone lives with a serious mental impairment that they be entitled to have their full day in court and have the judge determine what is an appropriate sentence for their matter and they are not subject to arbitrary sentence.”

Tellingly, Attorney-General Michael Mischin, a former State prosecutor, declined to back Harvey’s “meth binge” reading of mental impairment when invited by [|Inside State] yesterday.

Despite the Bill being a key plank of the Government’s law-and-order agenda, his spokeswoman said Mischin would not comment on “another minister’s legislation” except in the chamber.

Hardly a ringing endorsement and little wonder.

Shadow attorney-general and former barrister John Quigley, who has been let off the leash to poke as many holes in the Bill as he can, turned the tables on Harvey by telling her the idea for the amendment had come from none other than Mischin.

In the Attorney-General’s five-year departmental review of another piece of Barnett Government mandatory sentencing — minimum terms of at least six months for assaulting police — tabled last year, it was recommended a tweak be considered.

To “investigate the feasibility of including an exemption for persons with a mental illness, cognitive impairment or disability … so a judicial decision maker would retain the discretion to consider any mental impairment an accused may have”.

Using Harvey’s logic, that would give anyone coming down from a meth binge a get out of jail free card to whack a police officer. Talk about the right hand not knowing what the left hand is doing.

In relation to one tranche of mandatory sentencing, the State’s top law officer argues it is desirable to allow the circumstances of the mentally impaired to be taken into account in sentencing.

In relation to another, the Police Minister says it would make it “unworkable”.

Yesterday, Harvey would not answer whether she stood by her “meth binge” comments in light of WAAMH’s remarks, but insisted Labor’s amendment would “water down” her Bill.

“The Criminal Code already has provisions for people who are not criminally responsible because of mental impairment,” Harvey said.

When pressed, her office nominated section 27, the code’s insanity provisions.

These provide that a person who is not of sound mind (to the extent that they don’t have the capacity to understand what they are doing, control their actions or know that they should not be doing the act in question) must be found [|innocent] .

This is quite different from Labor’s amendment, which provides that people with mental impairment can still be found guilty of a crime — just that their impairment can be taken into account by a judge when sentencing.

Again, a less than firm grasp of the law.

Yet Harvey sought to make a virtue of her lack of legal background by mocking the credentials of Quigley — and indirectly Mischin — in an attempt to lump Quigley in with the judiciary she accuses being out of touch.

“Unlike the former lawyer’s would-be plan, our legislation protects the victims and community from these horrendous crimes and is in line with public expectations,” she said.

The coarse irony in all of this is that Labor, for all Quigley’s moralistic undermining, will not vote against the Bill having read the public mood and adopted Gough Whitlam’s “impotent are the pure” approach to winning back government.

The truism is you get what you pay for and the same can% be said for the politicians %we vote for and the laws they give us.