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Legislative Assembly for the ACT: 1997 Week 10 Hansard (25 September) . . Page.. 3264 ..

MR HUMPHRIES (Attorney-General) (10.36): Mr Speaker, I present the Crimes (Amendment) Bill (No. 4) 1997, together with its explanatory memorandum.

Title read by Clerk.

MR HUMPHRIES: I move:

That this Bill be agreed to in principle.

Mr Speaker, this short Bill proposes two quite significant amendments to the sentencing principles contained in the Crimes Act 1900. Those principles were inserted into the Act in 1993 by legislation introduced by the previous Government. That legislation was influenced by a report on sentencing that was prepared by the Australian Law Reform Commission in 1988. A main aim of the legislation, as explained by the then Attorney-General in his presentation speech, was "to promote consistency in approach amongst sentences and to state clearly the principles upon which sentencing decisions are made". Until 1993 there were no statutory provisions dealing with the determination of a sentence in the ACT. When the courts made a decision about sentencing, they were bound by common law principles. When the 1993 Bill was debated I supported, with some qualification, the codification of this area of the common law. I said it would be helpful to have a clear statement of the principles to be taken into account in relation to sentencing.

Since the amendments came into effect two problems have become apparent, and the present Bill aims to overcome those problems. The problems have occurred because, in two areas, the 1993 statement of sentencing principles appears to have departed from the common law. The result is that courts may from time to time be required, depending on the particular circumstances of a case, to impose a more lenient sentence than if the common law continued to apply. The aim of the present amendments is to make it clear that the sentencing principles in the Crimes Act are a reflection of common law principles.

The first of the amendments is to subsection 429(2) of the Act. This provision deals with an offender's rehabilitation into society and the making of reparation to a victim. These are important factors to be taken into account in sentencing and would be taken into account under common law. However, this provision can be interpreted as requiring a court to give these factors greater importance than would be the case under the common law. Under the common law there are five fundamental purposes for which a sentence may be imposed. They are to punish the offender, to deter the offender or others from committing criminal acts, to rehabilitate the offender, to express the community's disapproval of the crime, and to protect the community from the offender. In determining a particular sentence, these factors provide the underlying framework for the court's decision. The importance of each factor varies according to the circumstances of each offender and the facts of each case. For instance, in the case of a young offender or a first-time offender, rehabilitation will be of particular importance and may outweigh the other factors. In other cases, such as where the crime is serious and the offender has previous convictions, punishment and community protection may be the dominant factors.

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