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Legislative Assembly for the ACT: 1997 Week 12 Hansard (11 November) . . Page.. 3883 ..

MS TUCKER (continuing):

Report No. 44 of 1988 of the Australian Law Reform Commission on sentencing outlined a number of key principles of sentencing which have guided its recommendations. Amongst those principles is this:

Goals such as the incapacitation of the offender or the pursuit of general deterrence should not be objectives of the imposition of punishment.

Consideration of prevalence in sentencing will result in inconsistency of punishment. Similar offenders who commit similar crimes in similar circumstances should be punished in similar ways. Where a particular crime is prevalent in a locality and prevalence is a consideration in sentencing, the principle of consistent application of punishment cannot be upheld. Consideration of prevalence in sentencing punishes offenders for the crimes of other offenders and is therefore unjust. In a just society people are treated as individuals in a way that is proper for them.

The other thing I find particularly odd about this is that it does not recognise, if you like, the ability of the client group that we are dealing with. Using the language of the consumer society, the customers - in this case, the clients - are the people who apparently are going to be aware of the prevalence factor in sentencing; therefore, they will be aware of the fact that the crime they are committing is becoming more prevalent; and, therefore, they will be deterred because they will know this and will know that the sentence is going to be greater because more people are doing it.

If you look at the life stories and case histories of most of the people our courts are dealing with, they do not watch the news every night; they do not read the paper every day; they are not aware necessarily at all of what is going on in the community around them. They do not premeditate; they do not think, "Okay; I might commit this crime, but I will not commit that one because there is a prevalence issue about that and I will be sentenced more".

Surely we need to be acknowledging that if we actually want to reduce crime in our society we have to look at the root causes of it and work out how to support people in our community so that they do not turn to crime. We cannot continue to have a law and order response which will just mean that we will be incarcerating more and more people in our community. They will become brutalised by the experience of incarceration; they will then be released back into the community; and so it goes on. It is not a very progressive or intelligent way of dealing with the issue of crime in our society.

The other issue for debate today, of course, is the focus of section 429. In our view, this section in the current Act is satisfactory and appropriate in its direction and emphasis. The Act provides that facilitation of rehabilitation and encouragement of reparation are matters of consequence in sentencing. This focus reflects the need of the wider community to be assured that action is being taken to protect their safety by rehabilitating offenders rather than by taking the simpler and initially cheaper option of punishing offenders without regard to the potential for further harm. The five fundamental purposes for which a sentence may be imposed - punishment, deterrence, rehabilitation, protection of the community and denunciation - are considered adequately in the current Act. The principle of punishment in sentencing is self-evident, and it is not truly necessary for it to be mentioned in the Act.

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