Page 2593 - Week 07 - Tuesday, 5 June 2012
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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.
It is important to note also that new section 35A ensures that any 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 section is designed to provide that other actions are required to trigger the reduction under the new section. Therefore, this is not a duplication of existing provisions; this is a new, additional provision recognising and creating greater incentive for cooperation throughout the trial process.
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 reason for the imposition of the lesser penalty. This will ensure the visibility of reductions for two reasons: (1), to ensure that the community are able to satisfy themselves that sentences continue to reflect the seriousness of offences; and, (2), to ensure that defence counsel can advise their clients that the benefits of pre-trial and trial cooperation ultimately may facilitate greater efficiency in cases before the courts.
I note that both Mrs Dunne and Mr Rattenbury have indicated their opposition to new section 35A. That is of concern to me. This is an important provision, one which will create a new incentive to allow for more timely and efficient trials. That must be a very important consideration for this place. It is a mechanism which has worked very well in New South Wales. It acts as an incentive to ensure that the accused does not seek to use procedural or technical argument to delay a trial but, instead, narrows the matters in dispute to those which are truly in dispute between the accused and the prosecution.
It does not mean that the accused abrogates their right to plead not guilty. It does not mean that the accused is unable to mount an adequate defence. What it does mean is that issues that might be used or raised for tactical reasons to delay or string out a trial can still be used but, if they are not used, then those matters can be taken into account by the sentencing judge if the accused is found guilty. It is, I believe, a sensible mechanism, a mechanism that will encourage the more effective and productive use of the court’s time. I would encourage members to reconsider their position on the matter.
Finally, the amendments in this bill will assist the Supreme Court to change aspects of its case management and listing practice with a view to reducing the time taken to finalise matters lodged in or committed to the court. The reforms in the bill represent a firm commitment to assisting the court to improve waiting times and form part of our broader commitment to improving access to timely justice for the community. I would ask other members to reflect on those overriding objectives and not handicap this legislation by removing new section 35A. I commend the bill to the Assembly.
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