In October 2017, following ongoing community concern about sentencing practices in child homicide cases, the Honourable Yvette D’Ath MP, Attorney-General and Minister for Justice, referred an inquiry to the Queensland Sentencing Advisory Council to review whether sentencing for child homicide offences in Queensland was adequate and appropriately reflected the community’s views.

The Council provided their Sentencing for criminal offences arising from the death of a child: Final report in October 2018 which found that sentencing practices do not adequately reflect the unique and significant vulnerabilities of child victims, particularly in those cases involving the direct use of violence against a very young child and current sentencing levels appeared to be out of step with community views of offence seriousness.

The Council recommended the introduction of a new statutory aggravating factor where the death of a child under 12 years has been caused. This will ensure that the community can have confidence that the courts are focusing on the defencelessness and vulnerability of the child victim as an aggravating factor when sentencing an offender for child homicide. The Council explained that such an approach will still allow courts to impose a sentence that is just in the individual circumstances of the case, while making clear the expectation that higher sentences should be imposed.

In February 2019 the Queensland Government introduced a Bill to Parliament – the Criminal Code and Other Legislation Amendment Bill 2019, reflecting the Council’s recommendation, which would amend the Penalties and Sentences Act 1992 to provide that in sentencing an adult offender convicted of the manslaughter of a child under 12 years, the court must treat the child’s defencelessness and vulnerability, having regard to the child’s age, as an aggravating factor.

The Bill also proposes to amend the Criminal Code to:

  • expand the definition of murder to include reckless indifference to human life (many homicides result in an offender being convicted of manslaughter rather than murder because of the legal elements required to establish the offence of murder and this expanded definition will reflect that intention and foresight of probable consequences are morally equivalent), and
  • increase the maximum penalty for failure to supply necessaries from three years imprisonment to seven years imprisonment and reclassify the offence as a crime (to provide consistency with similar offences in the Criminal Code and to appropriately reflect the seriousness of the offence).

In the same week the Opposition introduced a Private Member’s Bill, the Criminal Code and Other Legislation (Mason Jett Lee) Amendment Bill 2019, which proposes a mandatory minimum non-parole period of 25 years imprisonment for the murder of a child under the age of 18 years and a new offence of child homicide (if the unlawful killing does not constitute murder) which includes a mandatory minimum non-parole period of 15 years imprisonment.

Queensland currently has mandatory life sentencing with a minimum non-parole period of 20 years for murder convictions.

PeakCare has concerns in relation to mandatory sentencing for manslaughter cases, as emphasised by the Queensland Sentencing Advisory Council :

Cases of child homicide — and particularly child manslaughter — occur in a diverse range of circumstances and are committed by a diverse group of offenders. In one case considered in the review, a father was convicted of the torture and manslaughter of his 13-month-old son. This occurred in circumstances where the offender perpetrated numerous violent assaults on the child. He denied responsibility and did not cooperate with the investigation. He pleaded guilty at a late stage, expressed no remorse and had a prior criminal history for violent offences, including domestic violence.  

Another manslaughter case considered by the Council involved a father sentenced for the unlawful killing of his nine-month-old daughter. In this case he had forgotten she was in the car and had left her unattended for several hours during which time she died of dehydration. He was greatly distressed at the scene and afterwards. He cooperated with the investigation and pleaded guilty at the earliest opportunity.

Few would argue for a mandatory or even a similar sentence for these two offenders, and yet both are ultimately responsible for the death of a child.

Sentencing judges must consider all relevant factors and balance many different and conflicting features to arrive at a sentence that is systematically fair, consistent and just, given all the circumstances of the particular case.

Besides a focus on sentencing to meet community expectations in relation to outrage about those who have been responsible for child homicide, a similar outrage should be maintained about the continually increasing levels of socio-economic disadvantage in our society, for many people compounded by adverse life events and intergenerational trauma, which be seen in rates of homelessness, domestic and family violence, poor physical health, mental health issues and drug and alcohol misuse, all impacting on parenting capacity. PeakCare advocates these social factors increase vulnerability and require a significant shift in government investment to prevention and early intervention and accessible services to support families, before a crisis point where children may be harmed or killed. Read this opinion piece by PeakCare’s Executive Director Lindsay Wegener’s that was recently published by the Brisbane Times.

PeakCare is preparing a submission to the Parliamentary Committee which is due on 12th March 2019. We encourage members to make submissions, see the Queensland Parliament Legal Affairs and Community Safety Committee’s website.

Alternatively feedback or comments can be provided to Stephanie Fielder, Principal Policy Adviser, PeakCare, sfielder@peakcare.org.au by 6th March 2019 for consideration and inclusion in PeakCare‘s submission.