Page 4105 - Week 13 - Tuesday, 15 November 2005

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Clause 10 (2) of the bill states:

The court may, by order, sentence the offender to imprisonment for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.

My motion would omit the clause. Whilst I agree that that clause is somewhat better than the old section 345 of the Crimes Act, which mentioned “all other possible alternatives” or something and was a little bit stronger than clause 10 (2), it still causes great problems. Basically it indicates that the court has to consider possible alternatives and consider that no other penalty is appropriate. In other words, it is imprisonment as a last resort.

This has caused our local courts here in the ACT considerable concern. I can recall a number of judicial officers commenting on the old section 345, and this clause is not dissimilar to that. I can recall Justice Gallop commenting. I think the former Chief Justice, Jeffrey Miles, may have commented at one stage. I well recall the most recent case, in which Magistrate Madden commented that, because of that provision—and this clause has its genesis from that provision—he was forced effectively to send someone who had some mental health problem out into the community. He actually commented that if he had not been constrained by the section he would have sentenced this man to 16 months imprisonment.

Other magistrates have, from time to time, lamented the fact that their hands are tied by sections such as this. Courts will always consider possible alternatives, and there are other parts of this act that would enable that to happen. A court must consider, and will consider, a plethora of things, including sentencing principles. But when it is restricted to a situation where no other penalty is appropriate, that is really restricting the discretion of the court. The courts and judicial officers have commented on that fact. Accordingly, I propose that that clause be omitted.

If that clause were omitted, the court would still have an incredibly wide sentencing discretion, in fact, probably a wider discretion because it would not be constrained by what the judicial officers themselves have seen as an unnecessary restriction that ties their hands—and they have said this on occasions—when they would like to take a certain course of action, having due regard to all the circumstances in the case, the offence, the prisoner’s circumstances, et cetera. All of those circumstances are covered in this bill. They were covered, too, under the old Crimes Act. I commend the amendment to the Assembly.

DR FOSKEY (Molonglo) (11.56): I oppose the amendment. It seeks to omit a provision that provides judges with discretion when deciding the length of time an offender must spend in incarceration. I cannot see any advantage in taking away the court’s discretion. Rather, I see many disadvantages, such as a loss of flexibility when deciding upon a combination sentence that best fits the offender, his or her family situation and the needs of the community.

MR STANHOPE (Ginninderra—Chief Minister, Attorney-General, Minister for the Environment and Minister for Arts, Heritage and Indigenous Affairs) (11.56): The

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