Page 3437 - Week 11 - Wednesday, 13 October 1993
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The contrary view in the Law Reform Commission's report was, to paraphrase it, similar to that of Mr Humphries, who argues, in a sense, that you cannot distinguish between general deterrence and prevalence and it is foolish to try to do so.
Mr Humphries: There is overlap.
MR CONNOLLY: They are overlapping. When the Law Society commented on this legislation it seemed to be divided. The majority of the Law Society's subcommittee looking at that suggested that it should be deleted from proposed new section 429B but should not be included in proposed new section 429A - that is, that you should not consider it, but you should not not consider it either. The Law Society again acknowledges that there was a difference of views there. So we have the Law Reform Commission divided in its base report, coming down, on balance, saying that it should be excluded. We have the Law Society here divided and coming down, on balance, saying that it should not not be excluded. We are getting into double negatives here, but I think members know what I am saying. The Law Reform Commission agreed, on balance, that it should be excluded, which is the Government's view. The Law Society of the ACT seems to have taken the view that it should not not be excluded.
We would support the argument that there can be an injustice if a person has taken into account a perception of prevalence, and it can be difficult to judge that prevalence. The commission said at page 96 of its report:
A court may increase the severity of a penalty for a particular type of offence which the court believes is occurring too frequently with the purpose of deterring others from committing that type of offence, but without taking the view that the offence is inherently more serious than it had previously been seen to be. In this case, the court would be responding to a perceived 'crime wave'. In the Commission's view, to do so would be inconsistent with the principle that individual offenders should, as far as possible, be punished only in accordance with the severity of their particular offence and their own culpability. Secondly, there may be a perception that particular offences are more prevalent than they previously were. As more attention is focussed on these offences, the courts may conclude that they should be regarded more seriously than before. Increased penalties will result. The perceived 'crime wave' has caused the courts to reconsider the seriousness of the offence in all cases, not just for the limited purpose of 'stamping out' the perceived crime wave. The principal difficulty with both cases is that the courts are not designed to amass and digest the kind of information needed to base a policy decision of this kind - the detailed statistics necessary to determine whether there has been an increase in the particular offence and the appropriate way all elements of the criminal justice system should respond to it. Responses to the prevalence of offences should come, not from the courts, with their limited capacity to amass and digest the kind of information on which policy decisions of this kind should be based, but from the parliament or the executive, by adjusting appropriately all the elements of the criminal justice system.
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