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Legislative Assembly for the ACT: 1997 Week 12 Hansard (11 November) . . Page.. 3878 ..

Debate resumed from 25 September 1997, on motion by Mr Humphries:

That this Bill be agreed to in principle.

MR WOOD (10.33): Madam Deputy Speaker, the Opposition will be opposing this Bill. The Minister wants courts to take more notice of the prevalence of the type of offence when sentencing occurs. Of course, they do so already. With this Bill, the Minister also wants to see that the rehabilitation of prisoners and reparation are not more important than other considerations in sentencing. Our laws make it clear that sentencing clearly depends on the circumstances of each case. Mr Humphries has not made a convincing argument for change. The provisions which Mr Humphries's amendments propose to change arise from the Australian Law Reform Commission Report No. 44 of 1988. In general, it argued that prevalence is often seen as a court's reaction to a perceived crime wave. One problem with that is that the courts do not have the statistics-gathering role necessary to make good judgments. Courts could react to media coverage of certain offences and not the realities. Courts could take notice of members of parliament, for example, who may decide what they think are crimes which are prevalent. But, most importantly, the Australian Law Reform Commission argued that sentencing on the basis of prevalence was 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. So the offender may be punished, not on the basis of individual activities but rather because of the perceived frequency of a particular crime.

Our courts already have the flexibility to consider a number of factors when sentencing. There is ample scope, in the present principles, to allow courts to set the appropriate sentence, without risking a public perception that the sentence has to be closely related to the latest media scare, or other claim, about particular types of crime. In his speech, Mr Humphries said that the Full Court of the Federal Court, which serves as the Court of Criminal Appeal in the ACT, has not yet ruled on this issue. Well, it has now, in the interval between Mr Humphries's speech and today. Its ruling will set aside any of the Minister's anxieties. Its ruling makes it clear that these amendments are unnecessary. I am sure that Mr Humphries has carefully studied that ruling. It was a test case for the amendments introduced in 1993, the amendments which the Government seeks to change in this Bill. One justice made the point that the main objective was that a sentence should be just and appropriate to the offence. Judges in our courts can continue to make their judgments, using the considerable discretion they have. There is now clearly no need for Mr Humphries's amendments and no need to move away from the basic principle of our system of justice. Mr Humphries made no satisfactory case in his introduction speech, and any arguments he had were demolished by that outcome in the Full Federal Court.

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