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Legislative Assembly for the ACT: 2014 Week 13 Hansard (Thursday, 27 November 2014) . . Page.. 4223 ..

Crimes (Sentencing) Amendment Bill 2014

Debate resumed from 30 October 2014, on motion by Mr Corbell:

That this bill be agreed to in principle.

MR WALL (Brindabella) (4.14): The Crimes (Sentencing) Amendment Bill 2014 seeks to set the closure date of periodic detention in the ACT. It does that with amendments to the Crimes (Sentencing) Act 2005 as well as through consequential amendments to the Crimes (Child Sex Offenders) Act 2005, the Crimes (Sentence Administration) Act 2005, the Electoral Act 1992 and the Spent Convictions Act 2000.

This bill places restrictions on the judiciary when considering sentencing options. A sentence of periodic detention that would continue beyond 30 June 2016 will no longer be allowed, nor would a combination sentence of full-time imprisonment and periodic detention.

These changes are set to be applied retrospectively, meaning that any individual sentenced or resentenced after the commencement of this bill will be captured by these changes. This issue in respect of the Human Rights Act 2004 is explored in both the explanatory statement and the report from the scrutiny committee. The explanatory statement accompanying the bill states:

The Bill may engage the right at section 25(2) of the Human Rights Act 2004, which provides that ‘[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 the offence is reduced after anyone commits the offence, he or she benefits from the reduced penalty.’

In this instance the question is whether or not the changes this bill seeks to make will increase or decrease the severity of a penalty. Whilst there is no change to minimum penalties relating directly to offences, the bill seeks to change how a judicial officer can apply the penalties.

As an example, currently the courts may sentence an individual to a sentence of full-time custody followed by a term of periodic detention. Under these changes the courts will only be able to apply a sentence of periodic detention or full-time custody. The result of this will be that in situations where a judge previously would have considered a combination sentence as appropriate, a decision will need to be made for one option or the other. A sentence of periodic detention most likely would be considered a reduced penalty. However, if a full-time custodial sentence is handed down I imagine that the penalty will be compared to those made in the past, prior to the enacting of this legislation, to determine whether or not a breach of the Human Rights Act has in fact occurred.

The Attorney-General himself identified in the presentation speech that this bill is being introduced without an alternative sentencing option. Ultimately, what this bill will do is remove what is an acceptable sentencing option from the suite of options

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