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Legislative Assembly for the ACT: 1997 Week 12 Hansard (11 November) . . Page.. 3884 ..

MR HUMPHRIES (Attorney-General) (10.55), in reply: Madam Deputy Speaker, to close this debate: I am disappointed but not surprised at the view taken by members of this place on this matter. Mr Moore is right; this issue has been debated before. At the time it was debated, in 1994, the then Opposition, the now Government, indicated that it was concerned about provisions in the legislation, would monitor the operation of the legislation and would come back to the Assembly with amendments to the legislation if there appeared to be problems with its operation. There is evidence of problems with its operation, and I do not ask for me to be believed on that subject; but I do ask for the Director of Public Prosecutions and the Chief Justice of the ACT Supreme Court to be believed on that subject. They are people who deal with this problem on a day-to-day basis; they are at the coalface. They have argued strongly that that is the case, notwithstanding the decision in Stafford's case.

Mr Wood: They would not be worried now, after the Federal Court decision.

MR HUMPHRIES: That is not the case, Mr Wood. In a moment I will read you a letter from the Chief Justice to indicate that, and I hope it will change your mind. But let me run through a few of the arguments, first of all.

Mr Wood made the rather extraordinary statement, I thought, that judges already take prevalence into account, notwithstanding the legislation, when they sentence individual prisoners. That clearly is not the case; or, if it is, it clearly lies outside the law and is some sort of idiosyncrasy by an individual judge. The judges and the magistrates, for that matter, are specifically excluded from considering prevalence when they sentence a prisoner. I refer Mr Wood to paragraph 429B(e) of the Crimes Act, which reads:

The court shall not -

I repeat -

The court shall not, in determining the sentence to be imposed on a person, increase the severity of the sentence that would otherwise be imposed because of any of the following:

(e) the prevalence of the offence;

They are clearly not entitled to take that into account. Mr Moore made reference to paragraph (i) of subsection 429A(1), and it is true that that provision deals with the court having the right to take into account "the deterrent effect that any sentence or order under consideration may have on any person". But, clearly, those two provisions are meant to mean different things. This is a matter I drew to the attention of the Assembly at the time of the original debate, if my memory serves me correctly. Prevalence is fairly clear, and there is no difficulty in this debate about what it means. It means the extent to which a certain offence is occurring in the community. Clearly, that is a general provision, rather than the specific provision about deterrent effect in paragraph 429A(1)(i).

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