Page 4230 - Week 13 - Thursday, 27 November 2014
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Section 25 deals with the issue of retrospectivity in two subsections. Section 25(1) is not relevant to what this bill is seeking to do because the subsection relates to new criminal offences, and the bill does not create new criminal offences. Section 25(2) of the Human Rights Act states:
A penalty may not be imposed on anyone for a criminal offence that is heavier than the penalty that applied to the offence when it was committed. If the penalty for an offence is reduced after anyone commits the offence, he or she benefits from the reduced penalty.
The explanatory statement to the bill addresses this issue in some detail today, and I will not repeat that at length now. However, I will say that this right is not engaged by the bill.
Part 3.2 of the sentencing act provides that a sentence of imprisonment can be served in three ways: in full-time detention, as a suspended sentence or as periodic detention. For all three, the sentencing court must conclude that imprisonment is the only appropriate sentence, and the act does not further differentiate between these three ways of serving that sentence. This bill does not increase the maximum penalty available for an offence, nor does it change the essential quality or character of an available sentence. All the bill does is change the way a sentence of imprisonment may be served.
As the bill applies to re-sentencing an offender in the same way it applies to sentencing, the issue of possible retrospectivity in those circumstances also deserves some consideration. In addition to the point I have just made about the penalty not being harsher, it should be remembered that when an offender is returned to court for re-sentencing it is because the Sentence Administration Board has concluded that they are unlikely to be able to serve the remainder of their periodic detention order. This means they are unlikely to be considered suitable for a further order of periodic detention in any event.
When the decision to abolish periodic detention was announced earlier this year, the legal profession did express some disappointment that an option was being removed without an alternative being in place. I understand this concern. However, as Mr Rattenbury has said, a replacement sentencing option is a primary focus of the justice reform strategy, and I intend to advance proposals in 2015 which will propose an alternative sentencing option. This is, of course, before periodic detention is removed as a sentencing option, so it is wrong to say that periodic detention will be removed without a replacement being in place.
The government are clear that the work of the justice reform strategy, which will be underpinned by evidence gathering and consultation, will deliver us the capacity to present to this place alternative sentencing options before periodic detention is removed from the statute book.
Mr Assistant Speaker, I will conclude my remarks at that point. I thank members overall for their comments in relation to this bill and I commend it to the Assembly.
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