Page 4112 - Week 13 - Tuesday, 15 November 2005
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Amendment negatived.
MR STANHOPE (Ginninderra—Chief Minister, Attorney-General, Minister for the Environment and Minister for Arts, Heritage and Indigenous Affairs) (12.21): I move amendment No 4 circulated in my name [see schedule 2 at page 4178].
The task of a judge or magistrate in sentencing an offender is to impose a sentence in a manner that applies sentencing principles and considerations to all cases equally. The sentencing court must balance the needs of the victim, the community and the offender, determine the factual basis upon which the sentence should be imposed and consider the circumstances of the offence. Those issues are set out in clause 33 of the bill.
Proposed new clause 33 (1) (fa) inserts additional matters that a court must have regard to when determining a sentence for an offence when it is known to a court that a victim of the offence was a pregnant woman. In that regard, the proposed new clause provides that the court shall have regard to the loss or harm to the pregnancy or to the child born alive as a result of the pregnancy; whether the person knew or ought reasonably to have known that the woman was pregnant; and whether the person intended to cause or was reckless about causing loss of or harm to the pregnancy or to the child born alive as a result of the pregnancy.
The inclusion of a consideration in sentencing will be an important balance to the government’s foreshadowed bill on offences against pregnant women, which will create an aggravated feature of an offence if the offence causes loss of the pregnancy, serious harm to the pregnancy or death or serious harm to a child of the pregnancy that is born alive.
If a person were found guilty of an offence against a pregnant woman, it would not be necessary to prove a fault element in relation to a factor of aggravation. Effectively, this enables a person to be found guilty of an aggravated offence although the person was not aware of the factor of aggravation. The person’s knowledge and state of mind when committing a simple offence will be taken into account by a court on sentencing through new clause 33 (1) (fa).
The clause is not limited to sentencing offenders convicted of the aggravated feature of pregnancy offences. It would also apply to the sentencing of offenders for any offence. When it is known to a court that a victim was a pregnant woman, a court may consider any harm caused to the pregnancy or child born alive as a result of the pregnancy and the knowledge of the offender in relation to the pregnancy and the offender’s state of mind when determining a sentence for any offence, whether or not the offence has an aggravated offence, and, when the offence has an aggravated offence, whether or not the aggravated factor was proven.
For example, in a matter where a person is convicted of assaulting a woman who is pregnant and it is established that the person knew the victim was pregnant and intended to cause serious harm to the pregnancy but the aggravated factor was not proven because the commission of the offence did not actually cause any serious harm to the pregnancy, the court will have regard to the fact that the offender knew the woman was pregnant and intended to harm her pregnancy in determining a sentence for a simple offence.
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