Legislative Assembly for the ACT: 1998 Week 1 Hansard (30 April) . . Page.. 213 ..
MR HUMPHRIES (continuing):
The first of the amendments is to subsection 429(2) of the Act. This provision deals with an offender's rehabilitation into society and the making of reparation to a victim. These are important factors to be taken into account in sentencing and would be taken into account under the common law. However, this provision can be interpreted as requiring a court to give these factors greater importance than would be the case under the common law.
Under the common law 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. In determining a particular sentence, these factors provide the underlying framework for the court's decision. The importance of each factor varies according to the circumstances of each offender and the facts of each case. For instance, in the case of a young offender or a first-time offender, rehabilitation will be of particular importance and may outweigh the other factors. In other cases, such as where the crime is serious and the offender has previous convictions, punishment and community protection may be the dominant factors.
It has been argued that subsection 429(2) gives rehabilitation and reparation greater importance than the other sentencing factors. The Full Court of the Federal Court, which serves as the court of criminal appeal for the ACT, held by a two to one majority in the Stafford case last year that the 1993 amendments did not change in "any significant way, the fundamental objectives of sentencing from punishment to the rehabilitation of the offender and restoration of the victim to his or her situation pre-offence".
However, given that the minority judgment of Justice Miles concluded that the effect of the 1993 amendments was that "rehabilitation and reparation are elevated in importance beyond all other criteria which are specified" - of course, Justice Miles is also the Chief Justice of our own Supreme Court - uncertainty as to the effect of the amendments remains. The High Court might take a different view from the Federal Court and the split decision in the Stafford case could encourage further testing of this issue.
Mr Speaker, the Government's view is that it would be unfortunate if the view that the 1993 amendments elevate rehabilitation and reparation above other sentencing factors were to prevail. There is no doubt that the rehabilitation of an offender is a very important factor in sentencing and that offenders should be encouraged to make reparation to victims. However, these should not be elevated in importance above other sentencing factors. The Government favours amending the Crimes Act to put the matter beyond doubt.
The present Bill achieves this by repealing section 429 and replacing it with a statement of the traditional common law purposes for which a sentence may be imposed. The five factors are those I mentioned earlier. The factors are in no particular order of importance. It is up to the court to assess the weight to be given to each factor in the light of the particular circumstances. The amendment to section 429 requires a small amount of tidying up of section 429A. Subsection 429A(1) contains a list of particular