Page 4395 - Week 14 - Tuesday, 22 November 2005
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the moderation of a sentence of imprisonment to enable the offender to rehabilitate. Mr Stefaniak’s proposed standard non-parole periods elevate jail time above the goal of rehabilitation, which the government supports, which the High Court advocates as the principal purpose of parole and which was the centrepiece of the Liberal Party’s submission to the sentencing review when the review was launched.
The New South Wales scheme of standard non-parole periods is relatively new, having come into effect for offences committed after 1 February 2003. There are already a number of New South Wales Court of Criminal Appeal cases testing the new provisions in New South Wales. In R v Way in 2004 and in R v Pellew, again in 2004, the Court of Criminal Appeal has interpreted the provisions as not reducing judicial discretion but as an exercise in assessing subjective and objective factors about the offence itself to determine whether a standard non-parole period should apply. Presently the scheme—and this is an emerging conclusion within New South Wales—seems to simply add another tier of judicial consideration and avenues for appeal rather than work as an expedient means of setting consistent non-parole periods throughout the courts of New South Wales.
It also needs to be said that, at the heart of the philosophy underpinning statutory non-parole periods, in a way that is a softer version of mandatory sentencing. If one looks at some of the standard missals, the other issue one would have is the assessment of what the standard non-parole period should be. Mr Stefaniak would claim a link to community sentiment in relation to what it is that the community would expect the standard non-parole period to be.
Mr Stefaniak believes that the standard non-parole period for murder should be 20 years. He suggests that the standard non-parole period for a murder involving a police officer, an emergency services officer, a health professional, a schoolteacher, et cetera, should be 25 years. I do not know on what basis Mr Stefaniak believes that expresses the sentiment of this community. Mr Stefaniak says, “It is the sentiment of the New South Wales community or the parliament of New South Wales, and we will simply accept that as appropriate and an expression of this community’s views in relation to some of these issues.”
But at the heart of standard non-parole periods is the question: what about judicial independence? What about the fact that we put in charge of our criminal process people learned in the law, experienced magistrates and judges, so that they can assess every single aspect of the case, undertake and receive advice, psychological assessments, counselling reports, reports from psychiatrists in relation to an offender, look at that offender’s history, look at the offender’s family circumstance and look at whether or not there are genuinely a range of aggravating or mitigating factors?
Mr Stefaniak will come back and say, “I allow for that. The provision is based on the fact that this section applies if a court is setting non-parole for an offender. Under a section where there is a standard non-parole, the court must set the standard non-parole period for the offence unless the court considers that there are reasons for setting non-parole for an offence that is longer or shorter than the standard non-parole period.”
I am sure Mr Stefaniak would insist, “It is only a guide. Essentially, this is what you would do unless you are going to set a higher or lower sentence.” You would ask, “What
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