Page 5198 - Week 12 - Thursday, 27 October 2011
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coalface of the criminal justice system. The Liberal Party are not doing that today; they are ignoring the views of a key statutory officer. They are ignoring the views of the Director of Public Prosecutions.
At the same time, the government does not lightly make changes to individual maximum penalties, so we took the time to carefully evaluate the DPP’s proposals. In doing this we undertook a review of comparable offences, looking at their relative seriousness and penalties. You cannot simply make amendments to penalties in isolation. You have to look at how they relate to other comparable offences. The review initially compared ACT penalties for culpable driving offences and the offence of intentionally inflicting grievous bodily harm with penalties for similar offences in other jurisdictions. This was not done so that the ACT may blindly follow other jurisdictions; rather, it was the first step in a process to evaluate the concerns raised by the DPP about the penalties for the three offences.
The analysis was confined to the two jurisdictions that are our closest neighbours, Victoria and New South Wales, and to the penalties under the model criminal code to ensure that only those comparisons most relevant to the ACT were considered. Special attention was paid to the model criminal code due to the desirability of amendments that bring our law into closer alignment with the code, recognising our commitment to achieve such an outcome.
The finding of this part of the review was that ACT penalties for these three offences are significantly lower than the penalties available in Victoria. I draw Mr Rattenbury’s attention to that. These penalties are lower than those in place in Victoria, in New South Wales or under the model criminal code. This confirmed that the issue of maximum penalties merited further investigation.
The second part of the review considered these offences in terms of the overall scheme of ACT maximum penalties for offences against the person. This exercise involved close reference to the particular elements of each offence and to the balanced scale of penalties, which must progress logically according to the seriousness of each offence. The community expects that the penalty fits the crime; that is, that the maximum penalty for a particular offence should reflect the seriousness of the offence relative to other less or more serious offences.
Maximum penalties in the ACT must not be considered in isolation. Consideration of penalties for these three offences in terms of the overall scheme showed that the penalties did not adequately reflect the seriousness of the offences because they were not high enough compared with other similar ACT offences—not offences in other jurisdictions; ACT offences—a point Mr Rattenbury fails to acknowledge.
For instance, the offence of culpable driving causing death has the same consequences as the offence of manslaughter. Manslaughter is currently punishable by a maximum of 20 years imprisonment, meaning there is a 13-year gap between the current penalties for the two offences. Manslaughter does require proof of a slightly higher level of fault—that is, criminal negligence—than does culpable driving. On this analysis it is certainly appropriate that manslaughter have a higher penalty. However, a 13-year gap is too great, as the level of fault required for manslaughter is only slightly higher than that for culpable driving causing death.
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