Page 3244 - Week 11 - Tuesday, 17 September 2013
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Mr Hanson: Yes, I do wish to speak.
MADAM DEPUTY SPEAKER: Yes, Mr Hanson.
MR HANSON (Molonglo—Leader of the Opposition) (11.50): The Canberra Liberals will be supporting the Crimes (Sentencing) Amendment Bill. Put simply, the bill, through the insertion of new section 35A, would permit the courts to impose a reduced sentence, including a reduced parole period, in cases where an offender assists in the administration of justice by cooperating in the trial process.
There are a couple of riders, however. Firstly, the lesser sentence must not be disproportionate to the nature of the offence. This would seek to ensure that this flexibility does not create excuses for sentencing leniency. Secondly, application of this flexibility does not apply where the assistance consists only of a plea of guilty or where the assistance is given to law enforcement agencies as distinct from the court process. To do so would double up on already existing provisions in that regard. Finally, as already applies to the other circumstances in which a lower penalty might be given, the court is required to provide a statement outlining the penalty it otherwise would have given and the reasons for the lower penalty. This, again, reduces the risk of sentencing leniency.
I also note that a similar provision exists in New South Wales in the Crimes (Sentencing Procedure) Act 1999. This similarity allows ACT courts to take some guidance from precedents created in New South Wales and, again, will assist in ensuring our courts maintain proportionality.
We will give this bill our support with a caveat. On 8 June this year the Canberra Times reported that the Law Society had concerns about this bill. Their primary concern was that this measure could “reverse the onus of proof back onto the accused”. The society was also concerned that it could “water down fundamental safeguards, including the accused’s right to silence”.
Countering this argument, the bill’s accompanying explanatory statement makes the bald, unsupported claim that this change in the law does not interfere with the right to silence, the right to plead not guilty or the right to be tried according to the law. With the government putting forward no basis for this claim, I was concerned that the Law Society’s caution on this matter has some substance. Accordingly, I followed up with the Law Society. For the record, I will quote their further advice to me in full. They say:
The proposed amendment could appear beneficial in some situations. However, there is concern that the proposed amendment undermines the notion that it is the prosecution’s responsibility to prove each case beyond reasonable doubt.
The amendment, effectively casts that responsibility back upon the accused, by failing to grant a benefit if the accused does not assist the prosecution and thereby treating the accused, who does no more than hold the prosecution to a burden it carries at law, pays a price for that.
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