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Legislative Assembly for the ACT: 1998 Week 2 Hansard (19 May) . . Page.. 313 ..

MR STANHOPE (continuing):

In the context of this debate I think it is worth our while to have regard to some of the personnel who were involved with the commission at the time that the report was prepared. During the period of the sentencing reference that was considered by the Australian Law Reform Commission, the following people were involved at one time or another in the development of the report: Justice Elizabeth Evatt; the Hon. Xavier Connor; Justice Kirby, now of the High Court; Justice Wilcox; Mr Greenwell; Mr Zdenkowski; Professor Chappell; Sir Maurice Byers; Professor Crawford; Mr J.Q. Ewens, QC; Professor Harding; Professor Hawkins; and a number of other very learned and experienced academics, judges and legal professionals.

The provision which we are dealing with and which is the nub of these particular amendments relates to whether or not the prevalence of an offence in an area should be taken into account when determining an appropriate sentence for an offender found guilty of that particular offence. My purpose in mentioning the range of people or commissioners who were involved in this report is to make the point, in relation to the recommendations by the commission as to whether or not the prevalence of a particular offence should be taken into account in sentencing, that only one of those people, only one commissioner, namely, Mr Greenwell, did lodge a dissent.

Of course, I think as everybody knows now - we have had this debate a number of times - the ALRC does not believe that the prevalence of an offence in a particular jurisdiction should be a factor taken into account by a court in determining an appropriate sentence. I think it is relevant for us to note that Mr Greenwell's dissent - I have no doubt that some play will be made of the fact that there was a dissent by the ALRC - was a very considered dissent. It was not a question of complete opposition. To some extent, he even supports the majority, but he does not support it in toto. It is not actually a dissent which says, "I do believe that prevalence should be taken into account".

The matter of principle here is whether it is appropriate that we, in our criminal justice system, when we as a community impose a sentence on an individual, take into account the actions of other individuals caught up in the criminal justice system. Should we take into account even a perception of the extent to which a particular crime is prevalent within the community? In punishing one individual, after taking into account the whole range of factors that one takes into account in relation to that person, things which quite justifiably should be taken into account and which the law and the courts now do take into account, should we add to that list a consideration of what other people do?

Our law has been founded on the basis that we should not do that. As a matter of principle it is not appropriate that a particular offender who has committed an offence should have added to the punishment which we as a community seek to impose on that person a measure of punishment which is a response to what other criminals do. I think that is a sound principle. I think it is a principle which we should not move away from. It is a principle which the Australian Law Reform Commission has felt and has recommended, I guess to all governments in Australia, that we should not move away from.

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