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Legislative Assembly for the ACT: 1997 Week 12 Hansard (11 November) . . Page.. 3881 ..

MR MOORE (continuing):

Yet, many people do not feel that way because of the way the perception is created. We do not want judges taking that perception into account. That is our role. It is our role, this Assembly's role, to take into account the public perceptions of crime and to respond to the public perceptions.

It is terribly unfair that the person in April gets a four-year sentence when the person in January got a two-year sentence for the same crime. That is what this amendment is about. It is part of the same thumping of the tub on the law and order campaign. It seems to me that the arguments that have been put up again in favour of this process are similar arguments to those that you can find at page 796 of volume 1 of the 1993 Hansard; and page 3427 later in that year, in volume 3, will show the same sorts of arguments. The Assembly rejected it then, and I hope that this Assembly rejects it again.

MR STEFANIAK (Minister for Education and Training) (10.45): I listened with interest to what Mr Moore said. With the greatest respect to him, I think he is completely out of touch with reality, and out of touch with community expectations and, indeed, with judicial expectations in this instance. I would ask members who are going to oppose this Bill to tell me what other jurisdiction in Australia does not have a similar provision in its legislation. I think the answer to that is: All of them have the provision that prevalence of the offence is something that can be taken into account in the sentencing process.

Mr Moore: And they are all wrong.

MR STEFANIAK: No; they are not all wrong, Michael. I think commonsense, precedent over many years and experience in the criminal law dictate that it is essential that one of the factors to be taken into account in sentencing is prevalence of an offence. I think that is something that the ACT community would want to see occur. I note that the Chief Justice, Jeffrey Miles, wants to see this provision back in there. I note that a very experienced judge who has dealt with many criminal law matters over the years, Justice John Gallop, also has commented that he wants to see this provision in there. I note that the Director of Public Prosecutions has indicated that they want this provision in there. If you asked most practitioners, even those in the private sector who are not with the DPP, the defence counsel, they would expect and probably want a provision such as this in there. There are very good reasons for that. It is an essential part of considerations before a court.

Two learned judges in the ACT have already commented that they feel they have been stymied by not being able to take this particular provision into account, when relevant. My colleague Mr Humphries, the Attorney, said when he introduced this Bill:

... there are five fundamental purposes for which a sentence may be imposed. They are to punish the offender, to deter the offender or others from committing criminal acts, to rehabilitate the offender, to express the community's disapproval of the crime, and to protect the community from the offender.

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