Page 3429 - Week 11 - Wednesday, 13 October 1993
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I think that in most part judges will apply that; but there is some disagreement around the community about whether this policy of using sentencing to imprisonment as a last resort is being pursued equally across the board. Certainly there are differences between jurisdictions; certainly there are differences between individual judges and magistrates. Lawyers talk about getting a hanging judge or a lenient judge. I think that this Bill might help alleviate the latter problem at least, that is, differences between judges and magistrates in the ACT, and bringing policy into line with other States will, hopefully, have the effect of reducing differences in policy between jurisdictions.
Mr Deputy Speaker, there are some elements of the Bill, I must confess, which are slightly troubling and which I think we need to think about very carefully. Sentencing policy previously, and still, to a large extent, under this Bill, is a matter for judges, but the principles to be applied need to be examined very carefully. The principles to be applied in the ACT after the passage of this Bill are set out essentially in proposed new subsection 429A(1), and those factors are quite extensive. Something like 23 different factors are referred to in that subsection.
We have criteria such as the nature and circumstances of the offence; if an offence forms part of a course of conduct consisting of a series of criminal acts, that course of conduct; any injury, loss or damage resulting from the offence; the degree of responsibility of the person for the commission of the offence; the need to ensure that the person is adequately punished for the offence; the cultural background, character, antecedents, age, means and physical or mental condition of the person who has committed the offence; the prospect of rehabilitation; the degree to which the offence was the result of provocation, duress or entrapment; a jury recommendation for mercy; current sentencing practice; whether the person has demonstrated remorse; and the reason or reasons why the person committed the offence. There are very extensive reasons given there. All of those things, to the extent that they are relevant and known to the court, must be considered by the court when passing sentence.
Similarly, in proposed new section 429B there is a list of matters which courts may not take into account when passing sentence. They may not take into account legislation which has not come into operation; they may not take into account the fact that the person chose not to give evidence on oath - I will return to that question in a moment; they may not take into account the prevalence of the offence - I will also return to that - or the person's behaviour in court; or the fact that a person chose to plead not guilty.
There is an inconsistency, I believe, between one provision in each of those two proposed new sections. The court shall take into account, to the extent that it is relevant and known to the court - I quote here paragraph (i) of proposed new subsection 429A(1) - "the deterrent effect that any sentence or order under consideration may have on any person". Similarly, or conversely, in proposed new section 429B, paragraph (e) says that the court may not take into account "the prevalence of the offence". It is my opinion that, in fact, those two things are different sides of the one coin. When a court comes to consider a particular crime which has occurred on a certain number of occasions in the preceding period in, say, the ACT, it is inevitable that, in considering the frequency of that crime, the court will be taking into account, when passing sentence on a person who comes
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