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Legislative Assembly for the ACT: 1998 Week 3 Hansard (26 May) . . Page.. 553 ..

MR HUMPHRIES (continuing):

It would be undesirable for a sentencing court to attempt to ascertain the state of the common law in 1993 as a guide.

Mr Speaker, the common law in 1993 is as I have suggested it is. It is as the Bill, in fact, proposes that it should be. That is that the prevalence of offences is a matter which the court may take into account when passing sentence on a particular offender. That is the common law, as I understand it, and that is as succinct a statement of the law as I can make. If members want to know what the common law was in 1993, with great respect, they should look at what the Bill says. That describes it to them. (Extension of time granted) If they seek some further explanation or clarification of exactly what the common law meant, Mr Speaker, I cannot help them. The Government is merely reinstating the common law. It is not up to the Government to describe fully the common law beyond what is contained in the Bill.

Bear in mind that the common law was changed by the legislation which came forward in 1993 and said that, in sentencing somebody, the prevalence of an offence will not be taken into account. That is section 429B of the existing Crimes Act. We are simply removing that provision. So, we will be reinstating the common law. To accurately and fully describe what the common law might be, in all the possible permutations on that, is not the job of the Government, with respect; nor is it possible for any government to do that. I would respectfully suggest to the Justice and Community Safety Committee that these comments are very unhelpful and simply raise a point which, in a sense, is axiomatic or obvious, but which does not actually advance the argument very far. It is true that the explanatory memorandum does not fully explain the common law; but to do so would require, potentially, in some cases, many volumes. In any case, there are very good commentaries on the common law available in other places. I suggest that people refer to those, as judges and magistrates will, if they have to take into account those principles when sentencing particular offenders.

Mr Speaker, I want to make one more comment before I sit down. In this debate, members have also made reference to the undesirability of looking at the conduct of others when passing sentence in a court. Mr Stanhope, for example, said:

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.

My first quibble with that is that that is not what our law is based on. Our law is based on the principle of prevalence being taken into account. But let us assume for a moment that he was right, and that we should not take into account what other criminals do. There is already a principle in the Crimes Act - specifically, in paragraph 429A(1)(i) - which allows the court to take into account the deterrent effect which any sentence or order under consideration may have on any person.

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