Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .

Legislative Assembly for the ACT: 1997 Week 10 Hansard (25 September) . . Page.. 3265 ..

MR HUMPHRIES (continuing):

It has been argued that subsection 429(2) gives rehabilitation and reparation greater importance than the other sentencing factors. The Full Court of the Federal Court, which serves as the court of criminal appeal for the ACT, has not yet ruled on this issue but is expected to do that the next time it hears an appeal against sentence. Mr Speaker, the Government's view is that it would be unfortunate if this argument were to prevail. There is no doubt that the rehabilitation of an offender is a very important factor in sentencing and that offenders should be encouraged to make reparation to victims. However, these should not be elevated in importance above other sentencing factors.

The present Bill addresses this by repealing section 429 and replacing it with a statement of the traditional common law purposes for which a sentence may be imposed. The five factors are those I mentioned earlier. The factors are in no particular order of importance. It is up to the court to assess the weight to be given to each factor in the light of the particular circumstances. The amendment to section 429 requires a small amount of tidying up to section 429A. Subsection 429A(1) contains a list of particular matters which a court takes into account in determining a sentence. At present it includes some, but not all, of the factors in the new section 429; that is, it is a bit of a jumble of the fundamental purposes of sentencing and of matters relevant to the particular circumstances of the offender and the offence. Clause 5 of the Bill does this tidying up. I would point out that, although reparation is not included in new section 429, it will continue to play an important role in the sentencing process. It is found in the list of matters to which a court must have regard in determining a sentence, at paragraph (f) of subsection 429A(1), and detailed provisions for the making of reparation orders are found in section 437 of the Act.

Mr Speaker, the second problem that has become apparent in the 1993 amendments is found in paragraph (e) of section 429B of the Act. This provision prevents a court, when it determines a sentence, from increasing the severity of the sentence because of the prevalence of the offence. This is another instance of the 1993 amendments departing from the common law. Under the common law there is plentiful authority for the proposition that a court may impose a longer sentence than it otherwise would because of the prevalence of the offence. For instance, in the High Court in 1992 the present Chief Justice of Australia said that "an offence may be prevalent in one locality and rare in another, and sentences in those localities may properly reflect those factors".

When the 1993 amendments were debated I expressed concern about this provision and predicted that it was going to cause problems. I moved an amendment that it be deleted, but that amendment was defeated. The provision has caused considerable unease within the judiciary. One judge has strongly criticised the provision for needlessly restricting the discretion of the court in sentencing. The Chief Justice and the Director of Public Prosecutions have also expressed concern. The way that prevalence is taken into account under the common law is shown in a case recently tried in the New South Wales District Court. An accused person pleaded guilty to conspiring to import heroin into Australia. The judge said that, owing to the prevalence of heroin in New South Wales, he was anxious to impose a sentence that would deter like-minded people from attempting the same crime. The judge sentenced him to 12 years' gaol, with a nine-year non-parole period.

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .