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Legislative Assembly for the ACT: 1997 Week 12 Hansard (11 November) . . Page.. 3882 ..

MR STEFANIAK (continuing):

Prevalence of an offence is certainly a very important consideration when a court and a sentencing judge go through those five fundamental purposes for which a sentence may be imposed. To specifically remove that provision puts the ACT at odds with the criminal law systems throughout the rest of Australia. It does nothing to protect the community; it does nothing for the proper administration of justice. It is wrong, I think, for any of those five fundamental purposes for which a sentence can be imposed to have any greater weight than the others; they are all equally important. There are lots of factors that need to be taken into account in terms of sentencing.

Prevalence of the offence is something that every other jurisdiction recognises. Two out of the three judges of our own Supreme Court want to see it reinstated here, and for very good reasons. They are very experienced judges, and I think we should take heed of what they say because they are doing this on a day-to-day basis and are charged with protecting the community as, indeed, this Assembly is in terms of making sensible laws. I do not think members opposite, Mr Moore or anyone else who might be opposing this is properly doing their job of protecting the community; I think they should hearken to what the two learned judges want to see occur and bring the ACT back into line with every other jurisdiction in Australia. That is certainly, to my knowledge, and I have checked with the Attorney, who also indicates that he cannot think of any other jurisdiction that does not have this provision. Certainly, it is something the community, which is getting a little sick and tired of criminals perhaps not being treated as the community expects, wants. They are getting sick and tired of not having a provision such as this.

Mr Wood also mentioned the Federal Court. I am advised that is not a terribly persuasive decision if you actually look at the reasoning of the three judges. There are some very interesting obiter dicta and statements made by those three judges in relation to this issue. That is not as strong a decision as perhaps Mr Wood might think it is, when you actually look at it. The Attorney, no doubt, will speak more on that when he sums up. All in all, I think the community, the Chief Justice and Justice Gallop would expect this Assembly to assist the Supreme Court in its role by bringing in legislation such as the Attorney has. I would ask members opposite and Mr Moore to reconsider their attitude in relation to this.

MS TUCKER (10.50): I actually find this a very disturbing amendment, and we will certainly be opposing it. On the issue of the function of sentencing: Mr Stefaniak claimed that Mr Moore's statements were out of touch with the community and judicial expectations. I believe that this amendment is actually out of touch with fundamental concepts of justice. If we look at this, we will not see that fundamental concept being respected. I quote here from Moira Rayner's "Rooting Democracy. Growing the society we want". She says that one of the principles of the rule of law is this:

The law does not permit the arbitrary exercise of power ... No-one can be punished except for a breach of a law, and the punishment should be tailored to the crime, its consequences and the individual offender's circumstances.

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