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Legislative Assembly for the ACT: 1998 Week 1 Hansard (30 April) . . Page.. 214 ..

MR HUMPHRIES (continuing):

matters which a court takes into account in determining a sentence. At present it includes some but not all of the factors in the new section 429 - that is, it is a bit of a jumble of the fundamental purposes of sentencing and of matters relevant to the particular circumstances of the offender and the offence. Clause 5 of the Bill does this tidying up.

I would point out that although reparation is not included in new section 429 it will continue to play an important role in the sentencing process. It is found in the list of matters to which a court must have regard in determining a sentence - at paragraph (f) of subsection 429A(1) - and detailed provisions for the making of reparation orders are found in section 437 of the Act.

Mr Speaker, the second problem that has become apparent in the 1993 amendments is found in paragraph (e) of section 429B of the Act. This provision prevents a court, when it determines a sentence, from increasing the severity of the sentence because of the prevalence of the offence. This is another instance of the 1993 amendments departing from the common law. Under the common law there is plentiful authority for the proposition that a court may impose a longer sentence than it otherwise would because of the prevalence of an offence. For instance, in the High Court in 1992 the present Chief Justice of Australia said that "an offence may be prevalent in one locality and rare in another, and sentences in those localities may properly reflect those factors".

When the 1993 amendments were debated I expressed concern about this provision and predicted that it was going to cause problems. I moved an amendment that it be deleted, but that amendment was defeated. The provision has caused considerable unease among the judiciary. One judge has strongly criticised the provision for needlessly restricting the discretion of the court in sentencing. The Chief Justice and the Director of Public Prosecutions - or at least the recently retired one - have also expressed concern. The way that prevalence is taken into account under the common law is shown in a case tried in the New South Wales District Court. An accused person pleaded guilty to conspiring to import heroin into Australia. The judge said that, owing to the prevalence of heroin in New South Wales, he was anxious to impose a sentence that would deter like-minded people from attempting the same crime. The judge sentenced him to 12 years' gaol with a nine-year non-parole period.

Mr Speaker, it is of great concern that the law in the ACT could prevent courts from acting as forcefully as they might think appropriate in order to deter people from committing crimes that are particularly prevalent in our community. It is equally worrying that sentencing courts may, in all cases and regardless of particular circumstances, be required to give particular importance to two sentencing factors and downgrade the importance of others.

The amendments to the sentencing principles proposed in this Bill are modelled on the approach taken in legislation in Victoria, Queensland and the Northern Territory. It appears that those jurisdictions were more successful in codifying the common law in this regard than was the ACT in 1993. I commend the Bill to the Assembly.

Debate (on motion by Mr Stanhope) adjourned.

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