Page 2595 - Week 07 - Tuesday, 5 June 2012
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That is an argument around what should be the appropriate sentence. That is a matter that can be dealt with, if Mrs Dunne wishes to agitate on that issue, by proposing changes to sentencing law per se.
Providing for a discount regardless of what the base sentence is is a valuable thing to do. Let me talk about some of the examples of actions that have been found to have assisted in the administration of justice in New South Wales. They have included things such as shortening a hearing by reducing the number of witnesses required to give evidence, enabling technical evidence to be adduced in a shorthand fashion rather than in a more lengthy manner and cooperating with the prosecution by allowing for the production of a statement of agreed facts.
This is all about sensible use of the court’s time. This is all about giving an incentive to the accused to cooperate without abrogating their right to argue their innocence, but enabling the court to focus on the matters that are in dispute rather than those that are not or focus on issues that are going to take up more and more of the court’s time during a trial. This concept of sentencing discount is not new. It works in New South Wales. It is a very efficient use of the court’s time in New South Wales. Why can we not have that here in the ACT? Why can we not have that here when we know that work practice in the Supreme Court must be reformed? The court itself has acknowledged that and is taking some very positive and constructive steps to address that. As a legislature, we should be supporting the court in this regard. That is what new section 35A is all about.
The concept of sentencing discount is not new to the ACT. The courts already have the discretion to reduce sentences where an offender pleads guilty to an offence or where an offender has assisted law enforcement agencies. But that does not go as far as the provision provided for in proposed new section 35A, which is about assisting in the administration of justice more broadly. Rather than assisting police or pleading guilty, you can potentially plead not guilty and still, if found guilty, have a potential discount added or taken into account in the sentence imposed because you have assisted with the conduct of the matter in the court overall. That is a positive and constructive thing to do. We should be supporting such a measure here in the ACT.
Any concerns about the exercise of the power resulting in sentences that do not reflect the seriousness of the offence and are not in accordance with community expectations have been mitigated by the provisions in this bill. First of all, the new power is discretionary. It is only one of the matters that a court must take into account when imposing a sentence. The court is also guided by the stated purposes of sentencing in section 7 of the ACT’s Crimes (Sentencing) Act, including to ensure that the offender is adequately punished in a way that is just and appropriate, to protect the community from the offender, to make the offender accountable for his or her own actions and to recognise the harm done to victims and the broader community.
In addition, the bill specifically requires that a lesser penalty imposed under the new power must not be unreasonably disproportionate to the nature and circumstances of the offence. The court would also be required to give a statement where it imposes a lesser penalty for the offence and must state the penalty it would have imposed and the reason for the imposition of a lesser penalty.
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