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Crimes Act 1900 . . Page.. 741 ..

Page 17, line 27, clause 33, add the following subclause:

“(2) An order under subsection 31A(1) is enforceable, as far as practicable, in the same way as an order under subsection 556B(1) of the Crimes Act 1900 and for that purpose sections 556C, 556D and 556E of the Crimes Act 1900 apply in relation to such order, so far as the same are applicable, with the necessary changes.”.

The three amendments are basically supportive of the one object, which is to introduce a note of flexibility into the Bill as it is currently drafted. The Liberal Party raised this concern with the Bill last year and, unfortunately, did not have the chance to integrate this amendment into the Bill before it was tabled this year. What this does is prevent the situation where inadvertently a person could spend a long period in prison when, through the operation of, if you like, human nature, it is not intended that they should serve that period in prison.

At the moment, the Bill provides that, where a person is sentenced to a period of periodic detention, that represents the equivalent of a period that would otherwise have been served in full-time imprisonment. The theory goes that a magistrate decides, “Yes, this person deserves to be in prison for three months; but I have the option here of periodic detention, so I will sentence him to three months worth of periodic detention”, which is about 12 weekends of detention, under this form. The theory then goes that, if the person, halfway through this period of periodic detention, breaches the orders of detention and therefore is liable for the option of going back into full-time gaol, they simply serve full time the unexpired period of their period of periodic detention. In other words, if they have six weeks of weekend detention to run, they will serve six weeks of full-time imprisonment.

The problem with this arrangement - and I think this has been borne out by some anecdotal evidence, or even hard studies in New South Wales, where periodic detention has been used for some time - is that magistrates tend not to equate a weekend of periodic detention with a week of full-time imprisonment. Let us face it; in a sense, who would? They have tended to view, say, a three-month period of full-time detention as being the equivalent of, say, six months of periodic detention. Although the Bill requires that they not think in those terms, if it does occur it is better to have in the legislation a provision of this kind which ensures that the case comes back before the court and the court has the opportunity of deciding whether part of the sentence should be remitted, in effect, and a person has the right to enter into a good behaviour bond and not go to full-time imprisonment.

Obviously, each case will be assessed on its merits by the magistrate or judge, but I am confident that the courts will decide properly whether full-time imprisonment is the appropriate option. For a person who might have served a very substantial proportion of their sentence of periodic detention, it might be felt by the court that no period of imprisonment should be added on merely because they have gone off the rails towards the end of that period and they should, therefore, be able to come back and, for example, be put on a good behaviour bond. That is the effect of the amendments. They simply add an element of flexibility into the operation of the Bill, and I commend them to members.

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