Legislative Assembly for the ACT: 1998 Week 2 Hansard (19 May) . . Page.. 316 ..
MR STANHOPE (continuing):
I think there is not a single judge or lawyer in town who does not believe that we have, at this stage, a Full Federal Court decision that basically accepts that the situation that we have is quite satisfactory; that it is not confusing. We do not need to beat up a supposed problem on the basis that a judge in the minority felt that there was an issue. To rely on the prospect of an appeal to the High Court from a Full Federal Court judgment seems to me to be an incredibly poor way to justify changing a fundamental principle of sentencing. I think the grounds are quite spurious. I think the amendments are completely unnecessary. I think the proposals attack, very directly, fundamental principles. People who confront the criminal law should be judged and punished on the basis of their actions. It is simply untenable that we should send people to prison on the basis of what somebody else did.
MR STEFANIAK (Minister for Education) (12.10): I disagree with a number of points which Mr Stanhope raised. Firstly, if he looks at proposed new section 429 he will see that there are five new principles of sentencing, as it were. A combination of two or more of the purposes referred to in paragraphs (a) to (e) inclusive must be apparent before a sentence can be imposed. So to say simply that prevalence of the offence is a thing a judge can rely on, and the only thing, is quite wrong.
Mr Stanhope: I never said that, Bill.
MR STEFANIAK: I am glad you did not, Jon. Good. You seemed to be saying that. I am very glad you appreciate that there have to be at least two purposes, and that is important.
A factor that I think is terribly important here, Mr Speaker, is that three of our judges have called for this particular requirement - Justice Gallop; the Chief Justice, Justice Miles, to whom Mr Stanhope referred in his comments; and our latest judge, Justice Crispin. Three of our judges actually called for this to be effectively reinstated. It was taken out of the legislation back in 1993. As Mr Stanhope said, this has been a principle of the common law, as the explanatory memorandum says, for many years. The prevalence of an offence is a very important principle for any court to take into account. How can you adhere to one of the principles of sentencing - deterrence - if you do not do so? When three of our Supreme Court judges call for its reintroduction, and call for it on a number of occasions, I think it is important for this Assembly to give due weight to what they say.
Mr Stanhope made a curious point, I felt, when he said he wonders how it is that judges who do not really have a research capacity can know about this particular matter. I think judges and magistrates are some of the best people at realising the prevalence of offences. They know how prevalent offences are simply from the fact that they sit in court on a daily basis. They see the passing parade on a daily basis. In terms of any people in our community, I would think that judges and lawyers who deal with the criminal law would be the most experienced people, with the exception of police who are there at the coalface, see offences on a daily basis and arrest these people to bring them before the court. I can think of few people with more of that relevant experience, Mr Speaker.