Page 3428 - Week 11 - Wednesday, 13 October 1993
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The Bill flows from a 1988 report on sentencing by the Australian Law Reform Commission, which dealt in detail with developments on sentencing around the country and proposed a series of recommendations that provided for greater consistency and greater fairness. This Bill, which results very substantially from that report - I understand that some of the people involved in preparing this report were involved in preparing the Bill - does not reflect exactly the policy of other States, but it is close to the policy in the other States, in terms at least of those States that have codified their practice. Therefore, by passing this Bill, we are also taking the step of creating a measure of common practice around the country. Given the width of that practice, putting it into statute is a major step forward.
I want to quote briefly from the sentencing report of the Australian Law Reform Commission. It sets out the principles which the framers of the report believed were important in establishing sentencing policy and which I believe we in this Assembly should also use as the principles we apply in the same area. The report states:
Punishments imposed by the criminal justice system for offences must be just, that is, they must be of an appropriate severity, having regard to the circumstances of the offence and the offender.
Consistently with a just punishment, rehabilitative goals and restitution for victims may also be pursued.
Inhumane, cruel or vengeful punishments such as capital punishment, corporal punishment, and torture should in no circumstances be permitted.
Goals such as the incapacitation of the offender or general deterrence should not be objectives of the imposition of punishment.
Punishment must be consistently applied. This implies not only that offenders should be punished for the crimes they commit but also that similar offenders who commit similar crimes in similar circumstances should be punished in similar ways. It further implies that offenders who commit more serious offences should be punished more severely than those who commit less serious offences.
I think all those principles to some extent ought to be applied by us. It is important that, in doing so, we acknowledge that there have been different weights attached to those principles in different degrees by different benches. The Bill describes sentencing as being an option of last resort, and I quote particularly from proposed new subsection 429C(1):
A court shall not pass a sentence of imprisonment on any person for an offence against a law of the Territory unless the court, after having considered all other available penalties, is satisfied that no other penalty is appropriate in all the circumstances of the case.
That is, I would respectfully suggest, in fact the policy of our courts, to a large extent anyway. I do not believe that there is any magistrate or judge sitting on our benches in the ACT who genuinely believes that it would be a good idea to impose a term of imprisonment as a device to achieve what could be called other goals than the rehabilitation of an offender or the protection of the community.
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