Page 6079 - Week 18 - Thursday, 12 December 1991
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That is entirely appropriate in terms of the court exercising its powers for a number of offences. Often the courts do not do so. They do so on occasions here, and quite properly so. I have often been critical of courts being too lenient in the ACT. I do not resile from that. All the judges and magistrates know of my position because I have made it clear for the past 10 years. Subsection 443(3) is an entirely appropriate provision and it should be used more often.
However, rather than seek to amend what Mr Collaery has done, I am pleased to note that in subsection (7) of his amendment he has countered that criticism I have, that justifiable criticism, by providing that where a person is convicted under subsection (2) of his amendment further penalties can be imposed which would alleviate the need to have cumulative sentences. Basically, he has created further offences which carry a maximum of 14 years, or, indeed, for a more substantive offence, life.
Accordingly, that does alleviate the need for cumulative sentences. Those are substantive penalties and if they were not there I think any court which would give cumulative sentences would not give any more than that anyway. So, that is a practical amendment which takes care of my concern. I hate to see legislation which does not give courts ample power to adequately punish wrongdoers.
All in all, Mr Collaery, they are good amendments. The Attorney and his officers have assisted you greatly in rationalising your amendments. They certainly have my wholehearted approval and support, and that of my party. I wish the amendment and this Bill a speedy passage.
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (5.52): There is one point that I think it is important to get onto the record. Mr Collaery noted that the amendments that we had proposed and the drafting that the Law Office has assisted him with have resulted in the age at which this simpler procedure for child sexual offences will operate being lifted from 12 to 16 years. It was the view of the Government, on advice from the Director of Public Prosecutions, that it was inappropriate to have a cut-off point at the age of 12 years. He mentioned that there may be potential problems because of what persons of 14, 15 or 16 years may choose to do in their spare time.
I should point out that the defences available under the Crimes Act at present will apply to any charges under this new provision. There is a defence that the defendant can show belief, on reasonable grounds, that the person on whom the offence was alleged to have been committed was over 16 years of age or, and this is more important in the context of schoolchildren, that, at the time of the alleged offence, there was an age difference of no more than two years between the defendant and the accuser, and in both cases there was consent.
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