‘Pusey law’ could result in people being jailed unfairly
What happens when the solution to one problem is the cause for a dozen more?
Last week the government introduced a bill to parliament which will see the creation of a new criminal offence of “grossly offensive public conduct”. This offence will carry a maximum sentence of five years’ imprisonment.
Chief Commissioner Shane Patton laying a wreath at a memorial to the fallen officers.Credit:Simon Schluter
The Crimes Legislation Amendment Bill 2022 is the culmination of a campaign in response to Richard Pusey’s offensive behaviour after the Eastern Freeway crash in 2020 that left four police officers dead.
Pusey’s actions were reprehensible and the public outrage which followed made clear that there is no place for his behaviour in our society.
Pusey served a total of 10 months in prison, three of which were for the common law offence of outraging public decency.
The motivation behind the new legislation is the view – expressed primarily by a family member of one of the deceased officers – that this common law offence, though rarely applied, is an inadequate response to Pusey’s behaviour.
Senior Constable Kevin King (left), Constable Josh Prestney, Leading Senior Constable Lynette Taylor and Constable Glen Humphris were killed on the Eastern Freeway.Credit:Victoria Police
A key factor in Pusey’s reduced sentence is that he pleaded guilty to all charges. Guilty pleas often result in reduced sentences in our courts as they are considered a demonstration of remorse and responsibility for one’s actions. Guilty pleas also contribute to the more expeditious and efficient operation of our courts and justice system.
It is important to acknowledge the human motivation behind this legislative push. The families of the four officers killed have had their lives devastated, their grief exacerbated by Pusey’s appalling behaviour in the aftermath of the tragedy.
But we need to be careful that any legislative “solution” does not produce unintended consequences.
Richard Pusey (right) on his arrest.Credit:Nine News
The Law Institute of Victoria has significant concerns with the Crimes Legislation Amendment Bill 2022.
The proposed new law creates an offence to engage in conduct that grossly offends community standards of acceptable conduct.
But who decides this? What one person might find “grossly offensive”, another person may not.
This law has come about as a response to a very specific, highly exceptional example of human behaviour.
But the law has general application, and the potential impact of this proposed new legislation would deprive a convicted person of their liberty for up to five years.
Given that there was an offence under which Pusey could be charged and did plead guilty, is this really a problem we need to solve through the introduction of new legislation?
The concern expressed by lawyers across the Victorian legal community is that this new legislation may result in a disproportionate application of the law, adversely affecting vulnerable people, including those with mental health issues.
The government maintains that this is not the intention of the new law and that safeguards have been drafted in the proposed legislation.
Suggested safeguards include a reasonable person test, expressing that the commission of this offence will not occur “just because” a person uses profane, obscene or indecent language, or is intoxicated. But how will that apply to someone who is acting out in a potentially “grossly offensive” manner in the context of a psychotic episode?
By including a “reasonable person test” that comprises those who know or ought to have known that their conduct would meet this threshold, are we really excluding the vulnerable and mentally ill?
The Director of Public Prosecutions must also provide his or her consent before a charge can be laid.
While providing for this safeguard (which is required for many offences in any event), may provide an additional hurdle, it does not overcome the issue.
The law constantly evolves with changing societal values and attitudes. What might once have been considered acceptable conduct may now be recognised as dangerous or destructive.
The inverse is just as true. Legislation should be clear and not subject to the vagaries of public outcry or opinion.
We urge the government to reconsider this issue.
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