Page 2772 - Week 07 - Wednesday, 29 June 2011
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Indeed, this was a primary reason given for the government rejecting the Canberra Liberals’ bill in 2005. The problem with this approach is that this now has been before the Standing Committee of Attorneys-General for well over a decade with no real prospect of a resolution any time soon.
In rejecting the JACS committee recommendation, the government also noted that manslaughter is a very complex issue. At least the Attorney-General and I agree about that. But in its response to the JACS committee’s report, the government answered its own concern when it said:
The ACT’s sentencing framework is based on the maximum sentence for an offence being a reflection of seriousness. This guides the judiciary about the relative seriousness of an offence compared with other criminal offences.
Quite so, Mr Speaker.
Setting maximum penalties is the job of this legislature, but those penalties must reflect the seriousness of the offences to which they must be applied. Maximum penalties also provide some latitude to the courts to make sentencing decisions that are appropriate in the circumstances of each individual case. The government’s response added weight to that argument when it stated:
Judges use case law, including cases from other states and territories, to provide guidance.
So, Mr Speaker, we have come full circle. The government says that penalties are a reflection of the legislature’s view of the seriousness of offences. The government says that judges take guidance from case law in other jurisdictions. The courts say that they will take no guidance from penalty provisions in other jurisdictions if they are significantly different from those applying in the ACT.
A solution to that dilemma is to set maximum penalties that are comparable to those applying in other jurisdictions so that the message of the legislature as to the seriousness of offences is clear to courts. This bill seeks to bring that comparability into view. As well, as will be seen from appendix A to the explanatory statement, the proposed maximum penalties for manslaughter are much more comparable across the jurisdictions. I therefore look forward to the government’s enthusiastic support for these changes.
Mr Speaker, the bill includes an objects clause. This clause seeks to make the Assembly’s position very clear as to the seriousness of the offences covered in the bill. In doing so, it leaves the way clear to courts to judge the crime on the basis of the facts pertaining to each individual case. Further, it leaves the way clear to the courts to take some guidance from case law in other jurisdictions because the respective legislatures have a comparable view as to the seriousness of those crimes. The objects clause also recognises the role of the community in setting the penalties for these crimes. The community, quite rightly, as Mr Corbell so passionately argued in the context of jury trials, holds certain standards and expectations about the appropriateness of penalties.
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