Page 3645 - Week 10 - Tuesday, 26 August 2008
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Assembly, the government knocked it back. I think it might still be included in the sentencing bill that is before the Assembly, and which I doubt whether we will have time to debate, as this is the last sitting week of this Assembly.
That provision is crucially important in that it enables the Magistrates Court, which deals with the vast majority of matters, to impose proper, adequate sentences for the serious matters that come before it. The Magistrates Court can deal with matters where there is a maximum sentence of 14 years imprisonment for certain categories of offences, while for others the sentence is 10 years imprisonment. It will now be 20 years in terms of aggravated burglary and aggravated robbery, if the court agrees that it is a minor matter in terms of those particular offences. So there is a significant penalty for the more serious matters, and a five-year maximum is very sensible.
It was interesting to note the Canberra Times article on the weekend which showed that the Magistrates Court is far more robust when it comes to sentencing than the Supreme Court and that, indeed, there is a lot of forum shopping. In fact, I fear that an adverse affect of this sensible measure might be to send even more people up to the Supreme Court, but I certainly hope that practitioners take it in the vein in which it is meant. It will simplify matters, ensure speedier justice and ensure that the Magistrates Court has a greater discretion—and it needs that. That is what is happening interstate, and I think it is sensible that it happen here. That is a good provision.
Another amendment requires, and enables through full disclosure of the prosecution’s case, a defendant to make an election at the time of listing of the hearing as to which court they wish to deal with their matter. Revocation of the election will be permitted if there is a significant change of circumstances. Again, I think that is a sensible measure. It helps to stop forum shopping. It saves time because you should have a pretty good idea, if you are representing a defendant, of what you are going to do before you get to court, whether the matter is going to be finalised in the Magistrates Court or not. I think it is very sensible to require that election earlier in the proceedings. If you intend to go to the Supreme Court, you should say so early on. You may be in two minds. You may think, “We’ll probably do it in the Magistrates Court.” That is fine; it is a good measure and it should keep you in that court. Again, it is a sensible measure. Of course, there is provision for people to revoke it if there is a significant change in circumstances.
Another amendment enables the Magistrates Court to commit matters to the Supreme Court for trial or sentencing without the need for oral evidence; rather, it will be based on written submissions and the full disclosure of the prosecution’s case. The new provisions enable the court to call witnesses for cross-examination in very limited circumstances when the court decides it is in the interests of justice. In other words, it is a paper committal—something that is done across the border in New South Wales on a regular basis. But there is still provision for the court to call witnesses for cross-examination.
There are limited circumstances and we will need to see how it operates. One of the traditional and sensible reasons for a committal is to tease out the prosecution case. We have already got an exemption now, in that it does not happen in serious sexual assault matters, and I think in serious violence matters. That is a sensible exception
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