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Legislative Assembly for the ACT: 1997 Week 12 Hansard (11 November) . . Page.. 3892 ..

Mr Whitecross: So he is criticising his brother judges, is he?

MR HUMPHRIES: Yes, he was. He said that. Go and read his judgment, Mr Whitecross. He was criticising them.

Mr Whitecross: He is not criticising the law; he is criticising his brother judges.

MR HUMPHRIES: He was, yes. If that is the case, there has to be some basis on which to distinguish those sorts of circumstances. It may be that the only distinguishing feature between the time of his coming to sentence and the time it was customary to impose suspended sentences is that at this point in time there is now a greater prevalence of that offence. If that is the case, the only basis on which he can sentence more severely than has previously been the case is if prevalence is a factor to which he can have regard when he sentences. If we do not pass this amendment today, he does not have that basis for acting.

Mr Moore: No; he can take deterrent effect into account.

MR HUMPHRIES: No, he cannot. Under section 429B he is not permitted to take into account prevalence of an offence. It is there.

Mr Moore: "Deterrent", I said. He can take deterrence into account under paragraph 429A(i).

MR HUMPHRIES: Mr Moore, let me ask you a question. What is the difference between deterrence and prevalence of an offence? The fact is, as I pointed out when we first debated this matter, that it is very hard to see what the difference is, because they look like two sides of the one coin. But, clearly, the court has taken the view that there is a difference between those things. It has taken that view already. There is a bit of a confused argument here. You and I might believe they can get prevalence in through the back door, but they do not believe they can. They believe that they are honouring the intention of the legislature by not having regard to prevalence. I have made that argument as clearly as I can.

Question put:

That this Bill be agreed to in principle.

The Assembly voted -

AYES, 6	 	NOES, 8

Mrs Carnell	Mr Corbell
Mr Hird		Ms Horodny
Mr Humphries	Ms McRae
Mr Kaine	Mr Moore
Mrs Littlewood	Ms Reilly
Mr Stefaniak	Ms Tucker
		Mr Whitecross
		Mr Wood

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