Page 797 - Week 03 - Thursday, 25 March 1993
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It is widely recognised that the prison system is a destructive environment and that the cost is extremely high, in both financial and social terms. While there will always be some crimes for which imprisonment is the only appropriate penalty, significant punishment can be imposed through other means which have added value for the community, for example, through community service. This Bill includes a statement that imprisonment is to be the punishment of last resort. This was one of the key recommendations of the Royal Commission into Aboriginal Deaths in Custody in 1991 and was a theme echoed by the Corrections Review Committee in its report to the Government in 1992.
This Bill recognises that the overriding purpose of a criminal sentence is to impose a punishment which is just and appropriate in the circumstances. Within that context, other considerations, such as appropriate reparation to any victim of the offence and rehabilitation of the offender in an effort to break the cycle of criminal behaviour, are encouraged.
The Bill sets out factors which must be considered by the court in determining the appropriate penalty. Such factors include the nature and circumstances of the offence, whether any loss or injury was suffered, whether the offender was affected by alcohol or other drugs and the circumstances in which those drugs were consumed, and whether the offender abused a special position of trust. Similar factors have been included in Commonwealth and South Australian legislation. In addition, the ACT has taken the initiative of listing those factors which may not be taken into account so as to increase the severity of sentence. Examples are the defendant's choice not to give evidence on oath, which is one of the fundamental rights of a person charged with committing a crime, and the imminent commencement of legislation which might affect the penalty to be applied.
The Bill also requires the court, before imposing a fine, to take into account the offender's financial circumstances in so far as they can be ascertained. This is to avoid imposition of a fine where severe hardship would be caused to the person or his or her dependants, with a consequent likelihood that the person will default on payment and be committed to prison. Similar provisions are in the Commonwealth, South Australian and Victorian legislation. Mr Deputy Speaker, that is a very important principle because, clearly, a $1,000 fine to a person in quite affluent circumstances is far less severe than a $1,000 fine to a person in straitened circumstances, and the principle that like offenders be treated in a like manner must be modified when a financial penalty is imposed, to ensure that social justice considerations are taken into account and that the levels of imposition on persons' financial means are the same rather than the actual monetary term.
Another significant reform is to recognise in legislation the pre-sentence reports prepared for the courts by ACT Corrective Services. While such reports are frequently requested by the courts in order to assist in determining the appropriate sentence for an offender, their preparation, content and use are governed for the first time by legislation. The final provision of this Bill prevents the court from releasing a person on recognisance or condition that he or she performs a certain number of hours of community service. Whilst the community service order scheme is a valuable scheme, it is considered desirable to keep this option as a distinct sanction, as the legislation intended, and to avoid any confusion as to revocation procedures and other administrative measures necessary for the successful operation of the scheme.
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