Page 2590 - Week 07 - Tuesday, 5 June 2012
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reduce sentence. The proposed new factor is whether the defence has engaged in conduct that assists the administration of justice. The example provided in the bill is where an admission is made either pre-trial or during the trial.
At the outset the Greens were intrigued by this amendment, as it appears to replicate the existing factor. The question was whether it was confusing and unnecessary to add in a factor that duplicates existing factors. The directorate has provided my office with further examples of the type of conduct that is envisaged to be captured by the new factor. When I read through the examples my position moved from one of intrigue to one more of concern. The examples provided would move the sentencing discretion of the court into an area that is far less certain than the existing factor. The existing factor of pre-trial disclosures is an open and shut case for the court to determine—either the offender made pre-trial disclosures or they did not. The proposed new factor of facilitating the administration of justice, while operating in the same space as the existing factor, is far less certain.
Another area of uncertainty is exactly how the new factor helps achieve any of the seven overarching purposes of sentencing as set out in the act. I have spoken about these before, and the purposes of sentencing are, in a nutshell, to punish, to prevent and deter crime, to protect the community, to rehabilitate the offender, and to denounce the behaviour of the offender. The Greens do not see how the proposed amendment helps to achieve any of these purposes.
In effect, what the government should also be doing in this bill is amending the list of purposes as well as saying up front that it is a legitimate purpose of sentencing to help the courts run more efficiently, if that is what it thinks is the case. That is what this amendment attempts to do. I think the interesting and unanswered question—one which I think warrants much further discussion—is whether sentencing is a legitimate tool to be helping to create court efficiencies. I think that is quite a significant question of jurisprudence and one that I feel has not been thoroughly fleshed out in the preparation of or the discussion on this bill.
The perfect way to look into this issue would of course be to conduct a complete review of the Crimes (Sentencing) Act, something which I have proposed in this place before and which members may well be tired of hearing me talking about. That proposal was not supported by any of the other parties in this place, but we consider that it remains necessary. This question that has come forth of whether we should allow discounts in sentencing to assist with greater efficiencies in the court is the sort of thing we would be wanting to consider and perhaps look at other jurisdictions, both in Australia and in the common-law world, around the appropriateness of that approach and the effectiveness, if it has been implemented in other places. Otherwise we end up operating in an ad hoc manner—either proposing drastic sentencing increases for some crimes or adding in new factors in isolation, both examples of which we have now seen in this Assembly. I believe the review is still necessary, and this matter of sentencing discount is another item that could be looked into in the context of that review.
The Greens understand the government’s rationale for the amendment. It fits with the overarching intent of the bill today to make our courts more efficient. However, we
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