Page 1656 - Week 05 - Thursday, 11 May 2006
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Let me focus quickly on fine defaulters and why including fine defaulters in the current community service scheme would be detrimental to the criminal justice system overall. As I indicated earlier, the kind of community service administered under a sentence in the ACT is designed for offenders who would have been liable to serve imprisonment. When a court considers making an order for community service, it must request a presentence report and the person must be suitable for community service in terms of any drug or alcohol addictions, any medical problems, their criminal history and other factors.
The decision to impose community service instead of imprisonment is not a light decision. The community service work itself also has to be appropriate and available. It is the government’s view that community service should not be work that would normally be provided by a paid employee. It is not free labour for commercial purposes. Ours is a small community and the relationship between available resources and desired outcomes must be carefully balanced. The effect of shifting a further 40 to 50 people a year into community service simply would be too great a burden in one hit. It would overwhelm our system. Once the step was taken to enable the territory to provide community service as an alternative there would also be the unpleasant prospect that it would encourage a further marginal layer of people to default on fines. Again, that would add to the burden.
I am also advised that in other jurisdictions linking existing community service orders to fine defaults the influx of community service orders to pay off fines has resulted in the absurd situation where the cost of managing community service orders exceeds the amount of the outstanding fine. Not only is the community missing out on the fine but also it has to pay more than the fine was worth in the first place. In the meantime, it also burns up resources that would be better placed managing more serious offenders.
Finally, there is the issue of ACT public liability and liability for civil actions. As I explained, the process for a community service order requires the court to request a presentence report to determine an offender’s suitability for community service. This assessment process also helps to manage the territory’s liability. Dr Foskey’s amendments would circumvent that process and reduce the territory’s ability to manage the risk. In a community of our size, one bad incident would be enough to affect the whole scheme.
I am also concerned that the use of the existing community service scheme would create new problems. Firstly, the amendments would authorise the registrar to decide if a person had breached their community service order. This could be an allocation of power beyond the registrar’s appropriate role. It may also raise the human rights issue of fair trial because there needs to be consideration as to whether the powers are, in fact, judicial or administrative. Secondly, I am concerned about whether in fact it is possible to use the procedures in part 6 (2) of the Crimes (Sentence Administration) Act 2005 in abstract from the rest of the chapter. It raises serious questions about whether any breaches can be reported at all.
Under the sentence administration act, corrections officers can only report breaches to a sentencing court under chapter 6. Would this mean that the registrar is to be taken as a person imposing a sentence? Again, this does raise some human rights issues. If the
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