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Legislative Assembly for the ACT: 2003 Week 4 Hansard (2 April) . . Page.. 1205 ..

MR STEFANIAK (continuing):

Where a court deviates from the standard guidelines if there are extenuating or mitigating circumstances, it must give reasons for doing so. That is important. Obviously, there may well be good reasons-for example, in a murder-to deviate from 20 years. It might be a particularly horrific crime. Something like the Anita Cobby murder might well demand life imprisonment-actual life.

A battered wife who kills her husband on the spur of the moment, after suffering misery for 15 years, might get a suspended sentence. There are those discretions for a court. A court is still able to use commonsense. Obviously, no two cases are ever the same. That is taken into account.

That leads me to the fourth part of the package, Mr Speaker-impediments to proper sentencing. There are a number of impediments to proper sentencing and there are some inconsistencies in the legislation, especially between sections 341 and 345 of the Crimes Act.

Dealing with section 345 of the Crimes Act, my bill would repeal this. There have been a number of comments made by judicial officers recently about the problems this section causes them. Magistrate Madden, in a case reported in the Canberra Times on 11 October 2002, stated that he would have sentenced a Mr So to 16 months jail, because his behaviour was absolutely reprehensible despite his schizophrenia, but he felt obliged by territory legislation to use jail only as a last resort.

The section states that a court shall not pass a sentence of imprisonment on any person for an offence against the law of the territory unless the court, after having considered all the available penalties, is satisfied that no other penalty is appropriate in all the circumstances of the case.

I do not think our courts should be placed in a situation where they cannot jail, and feel they cannot because they do not see that as necessarily the last resort. In Mr Madden's case, I think he would have preferred there to be another facility, but there was not.

The section is also contradictory when one looks at the subclauses. I will explain that further in my explanatory memorandum, which I undertake to table. It is not yet ready. I do not believe there is a need for a section like this. I think courts are capable of looking at sentencing matters without this sort of restriction.

Magistrate Somes also recently lamented the fact that he felt bound by this section, in imposing weekend detention in a nasty, culpable driving case which involved the death of a man in Belconnen. The relatives of the deceased were very upset. They made representations to me and, I believe, to the Attorney last year as well. This is an example of judicial officers in the past 12 months commenting on the problems associated with section 345.

Similarly, section 341 is in need of amending. At present, that section lists the principles of sentencing. There are five principles. Basically, any one of those can be taken into account by a court. They cannot take into account anything else for the purpose of imposing a sentence. The only reason you impose sentences is because of the principles of sentencing-and indeed they can take into account two or more. However, I think it is