Legislative Assembly for the ACT: 2003 Week 13 Hansard (26 November) . . Page.. 4729 ..
MR STANHOPE (continuing):
Mr Stefaniak and the Liberal Party think criminals are so adept at actually acting and pretending that they are remorseful when they are not that the court should be prohibited from considering remorse, should actually not be able to take into account whether or not an offender is genuinely remorseful because the Liberals don't think that our judges or our magistrates have the capacity to make that determination, that they can't be trusted to judge whether or not a criminal is remorseful. We can't proceed on the basis that you can't trust your judiciary. Given the vast experience of our judicial officers, I trust and I believe the courts are able to identify genuine displays of remorse and should be able to take those into account.
Similarly, the Liberals express the view that considering the cultural background of an offender is discriminatory. Here is another ripper; it is almost like the anti-feminism that was exhibited by Mrs Dunne the other day-this sort of view that a real woman gets where she is on the basis of her merits, that we didn't need a feminist movement. Here we are with a continuation of the theme. Mr Stefaniak is expressing the view on behalf of the Liberals that courts should not take into account the cultural background of a particular offender because it is discriminatory.
It is the same black-armband view of history that the Liberals apply to Aboriginal reconciliation. We saw it the other day with Mrs Dunne suggesting that real women got where they are today without the benefit of the feminist movement or feminism. Here we have it again: it is not appropriate for the courts to consider the cultural background of an offender because that discriminates against those that perhaps don't have that same cultural background. What absolute arrant nonsense and what a total misunderstanding of the forces that affect and are relevant to the behaviour of all of us!
I think cultural background could, in some instances, be a very important factor in their behaviour. I think it applies particularly in relation to Aboriginals and perhaps the high rate of Aboriginal deaths in custody. The cultural background is acknowledged by everyone that thinks about these issues or is concerned about them; cultural factors are fundamental to some of the issues that have led to the unacceptable, high level of Aboriginal deaths in custody. We won't be supporting those amendments as well.
Finally, the bill would establish a new scheme of standard minimum sentencing for various offences, based on the scheme recently introduced in New South Wales. The judge may impose a greater or lesser sentence if there are aggravating or mitigating factors, but there is no choice about what the starting point will be. Despite everything that the Liberals will say about that, that is mandatory sentencing.
Mr Stefaniak: Nonsense.
MR STANHOPE: That is a form of mandatory sentencing. That is where it starts. It is a minimum sentence. The judge can take some mitigating factors into account or he can take some aggravating factors into account, but he has a starting point. He has a starting point as a minimum sentence; it is a mandatory sentence. Once again, it is the legislature interfering with the discretion of the judiciary. Once again, it is an interference that goes to the issue of the separation of powers.