Northern Territory Second Reading Speeches

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SENTENCING AMENDMENT BILL (NO. 2) 2001

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

The purpose of this bill is to amend the Sentencing Act in order to require the court, when sentencing an offender for a sexual offence to take into account that a sexually transmissible medical condition has been transmitted to the victim of the offence. This factor will be in addition to the factors to which the court is already required to have regard under the Sentencing Act, some of which are mitigating factors and some of which are aggravating factors.

It is clearly a factor of considerable aggravation that a victim of a sexual offence should not only have suffered the trauma of the actual assault but be later subjected to the knowledge that they have acquired a disease as a result of the assault. Not only is the fact of this infection likely to cause further and prolonged distress and emotional harm to the victim but it may require them to undertake extensive medical treatment, adding to the physical invasion that they have already suffered in the assault itself. In the most serious cases, a victim may be inflicted with a permanent medical condition, for example, where a person suffers infection from the Human Immunodeficiency Virus (HIV). One can only guess at the level of distress that such knowledge must bring.

The fact of the transmission of one of these medical conditions is bad enough. However, the seriousness of this fact is heightened in cases where the offender actually knew of their own infection and disregarded entirely the health of the victim in their attack. This additional matter, that is, whether the offender was aware that they had a sexually transmissible medical condition, is a further factor to which the court is required to have regard under this amendment.

In order to facilitate the court’s consideration of these matters, the bill also provides for an amendment to the Victim Impact Statement and Victim Rep ort provisions of the Sentencing Act. This amendment will allow specific reference to the harm that has been caused to the victim by way of the contraction of, or fear of the contraction of, a sexually transmissible medical condition. Even where a victim has not contracted a disease or other medical condition as a result of the assault on them, the fact is, that the fear of being infected is a real one. In the case of serious infections such as HIV, it will be many months before a victim can be safely reassured that they have not contracted that infection. The trauma associated with that fear is a proper matter of regard for the court.

I would like to acknowledge that the impetus for these amendments came from the member for Macdonnell, Mr John Elferink MLA. The member, in response to my ministerial statement in the Assembly in February, drew to the parliament’s attention, that the law did not currently make specific provision for the transmission of disease, to a victim of sexual assault, to be taken into account in sentencing an offender for a sexual offence. The member suggested that a possible means of emphasising the significance of this matter would be to make it a circumstance of aggravation under section 192 of the Criminal Code for which there would be a mandatory minimum sentence. Having considered the means by which this matter might be enacted, it has been determined that the path suggested by the member may be better achieved by amending the Sentencing Act. Making the transmission of a disease or other condition an aggravation of the assault would require the adducing of evidence during a trial to prove that fact. It might permit the introduction into the trial of the complainant’s past or present sexual history where that would otherwise not be admissible.

One of the reforms of the criminal law relating to sexual offences, in this jurisdiction as in others, has been to limit the introduction of evidence of sexual history in trials of sexual offences. Introducing transmission of a disease as a circumstance of aggravation, though desirable in itself, might have the unintended consequence of resurrecting this evidence. The path that we have chosen to follow still emphasises, that weight is to be given to this matter in sentencing, without the other consequence. I do, however, thank the member for Macdonnell for raising the issue because his consideration of this matter has brought us to this reform.

I commend the bill to honourable members.

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