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Legislative Assembly for the ACT: 2003 Week 4 Hansard (2 April) . . Page.. 1206 ..

MR STEFANIAK (continuing):

desirable-and my committee agreed-that they should take into account all of the principles of sentencing. Obviously, depending on the circumstances of a case, more weight could be given to one or two principles than the others, but all the principles need to be looked at.

There has been great concern in recent times, on many occasions, that our courts place far too much store on rehabilitation-one of the principles in sentencing-and not enough on the other principles such as punishment, deterrence and denunciation-and also the need to protect the community from the offender.

Section 342 also deals with matters for which the court has to have regard. It does not limit the court, but lists a whole series of matters for which the court has to have regard. I feel there is a need to change some of the matters here. Part of subsection (1) (i) states that cultural background is something to be looked at. My committee was concerned that that may well be discriminatory and inconsistent with the Discrimination Act. We feel that is something that could be deleted. If that is a factor, again, there is nothing to stop the court looking at it, but there may be problems there.

We felt it desirable to delete subsection (1) (j), which is about the probable effect that any sentence or order under consideration would have on any of the criminal's family or dependants. Whilst the action of a criminal may bring a lot of sadness to that person's family-and I have certainly acted for people who have brought a lot of sadness to their families-the effect a criminal's actions have on his or her own family I do not think is something a court must take into account. I suppose that, if the court felt there was some particular relevance there, there is nothing to stop it doing so. However, for a court to have to consider that, I do not think is necessarily desirable.

In relation to subsection (m) where the recording of a conviction, or the imposition of a particular sanction, would be likely to cause particular hardship to the person-that is the defendant-at present, that is something a court has to take into consideration.

Invariably, a person committing a crime brings consequences upon himself or herself. It can be said, in many instances, that a sanction or recording of a conviction could certainly cause a person hardship. However, that hardship may well be justified by what the person has done. If there are extenuating circumstances, the court obviously has a wide range of discretionary powers to vary what it does. If it feels the crime was minor and certain sanctions are not appropriate, because they would have an adverse effect, that is something it would naturally take into consideration. The concern here is that that particular section has to be looked at by a court, even for the most serious of matters.

Given that we are moving towards similar legislation across the states, and given that already our courts tend to look at what happens in other jurisdictions, I think it is entirely desirable that another section be amended. That is a section which at present states that courts must look at current sentencing practice. My amendment would simply add "in other states", to ensure that they do not look only at their own jurisdiction, but across Australia. I think that is a desirable amendment.

My committee also looked at whether a person has demonstrated remorse. It is often very hard for a court to really understand whether a person has done so. Sometimes remorse is

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