Page 2330 - Week 06 - Thursday, 10 May 2012
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The second set of amendments that the bill contains is to the framework for ordering and preparing pre-sentence reports under the Crimes (Sentencing) Act 2005. Amendments clarify that the Magistrates Court can order a pre-sentence report at the time they commit an offender to be sentenced in the Supreme Court. The amendments will assist in facilitating the early ordering of pre-sentence reports, supporting the court’s proposed pre-sentence disclosure requirements. Ensuring that information is exchanged prior to sentencing hearings, that issues in dispute are identified and that the judiciary receive the information necessary to complete the hearing in a timely fashion should help to reduce adjournments and unexpected delays in completing sentencing hearings.
The amendments also remove a provision in the act dealing with the distribution of pre-sentence reports from the courts to the parties. This is a procedural matter which would more appropriately be dealt with in the court procedures rules.
Finally, the bill contains amendments to the Crimes (Sentencing) Act to permit a reduced sentence to be imposed where an offender has facilitated the administration of justice by cooperating to ensure that a trial is focused as efficiently as possible on the real issues in dispute.
New section 35A enables the court to impose a lesser penalty, including a shorter non-parole period, on an offender than it would otherwise have imposed, having regard to the degree of assistance provided in the administration of justice. The provision is designed to encourage cooperation in ensuring that the trial is focused as efficiently as possible on the real issues in dispute. The provision will extend to allowing a reduced sentence to be imposed where an offender, while maintaining a not guilty plea through to trial, has nevertheless facilitated the administration of justice through pre-trial disclosures, disclosures made during trial or otherwise. A similar provision exists in New South Wales and, accordingly, the case law that exists on this provision in New South Wales will serve as a guide to the ACT judiciary in applying new section 35A.
New section 35A ensures that a lesser penalty imposed must not be unreasonably disproportionate to the nature and circumstances of the offence. The new section also clarifies that the power is not intended to limit the operation of existing sections 35 and 36 which allow for reduced sentences in certain circumstances. While a plea of guilty or assistance provided to law enforcement agencies can be considered to meet the requirements of facilitating the administration of justice, the new sections are designed to provide that other actions are required to trigger the reduction under the new section.
The court will be required to give a statement where it imposes a lesser penalty for an offence under the new power. The court must state the penalty it would have imposed and the reasons for the imposition of the lesser penalty. This will ensure the visibility of reductions, for two reasons: firstly, to ensure that the community are able to satisfy themselves that sentences continue to reflect the seriousness of the offence; and, secondly, to ensure that defence counsel can advise their clients of the benefits of pre-trial and trial cooperation which ultimately may facilitate greater efficiency in cases before the courts.
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