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Legislative Assembly for the ACT: 1997 Week 12 Hansard (11 November) . . Page.. 3891 ..

MR MOORE (continuing):

Yes, a judge should take into account whether the weapon used in the armed robbery was actually a plastic gun, whether it was a first-time offence and whether it was so botched, and so on, that the judge says, "It was such a pathetic pretence at armed robbery that I am going to give a suspended sentence". One could imagine that sort of possibility. But the reality is that to suggest that a 25-year penalty for armed robbery encourages somebody in this Territory to commit armed robbery is just claptrap. For you to repeat it is appalling because it is not true. For you to repeat such claptrap in this kind of debate is nonsense. It goes back to the same stuff of law and order thumping of the drum. That is what it is about.

Mr Stefaniak: Tub.

MR MOORE: Tub, if you like; I do not care. I do not care which cliche you prefer to use. It seems to me that when Mr Humphries came up with this sort of pathetic attempt to support his argument on this issue he really put the last nail in the lid of his coffin. Since we are into cliches, we might as well use them properly. It seems to me that when we dealt with this issue in the Second Assembly we got it right. That has been confirmed by the Federal Court. Yes, there is a different opinion amongst some legal practitioners, and I accept their right to hold that opinion. Things such as the letter from Chief Justice Miles and the opinion of the Director of Public Prosecutions do have an influence on people like me. But the reality is that it is unjust when someone in January gets a two-year penalty compared to somebody in April getting a four-year penalty for exactly the same offence. I will not be a part of that.

MR HUMPHRIES (Attorney-General) (11.20): Madam Deputy Speaker, I also seek leave to make a further contribution.

Leave granted.

MR HUMPHRIES: I will try to be brief, Madam Deputy Speaker. I want to explain the situation in case members have genuinely misunderstood what has been said. Mr Moore says, first of all, that the Federal Court has considered the question of prevalence. It has not. It has not touched the question of prevalence. The only issue dealt with in the Stafford decision was rehabilitation. It did not touch the question of prevalence. That issue was not resolved by the decision in Stafford's case. I suggest Mr Moore go and read it.

The second point I want to make is that Mr Moore says that, if the maximum penalty in the Crimes Act is 25 years, a judge should be able to impose that without any problem, or something including a custodial sentence. There is a fundamental flaw in that argument, and it goes like this: If the court, over a period of time, has been sentencing armed robbers, with certain characteristics of their crimes, to a suspended sentence, for argument's sake - and there was a period during which precisely that was happening in this Territory; they were customarily, for first offences, getting suspended sentences - and if a judge is faced with another prisoner with exactly the same characteristics as the earlier prisoners, whose offence is as serious as the others and in all other respects is in the same class as the others, the judge has a positive obligation under the law to be consistent with his brother judges, and they are all brother judges, and impose the same kind of sentence. That is the law.

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