Legislative Assembly for the ACT: 2005 Week 13 Hansard (Tuesday, 15 November 2005) . . Page.. 4158 ..
I commend those amendments to the Assembly.
DR FOSKEY (Molonglo) (5.09 pm): Mr Stefaniak has moved a group of amendments. His amendment No 5, which sets out factors for consideration when sentencing, is obviously connected to his amendment No 9. Those factors include reparation and remorse. The key problem is that amendment No 5 links remorse necessarily with reparation. This implies that remorse of itself without reparation, which may be beyond the scope of the offender, lacks value. Since the amendment subtracts rather than adds to the clarity of these provisions, the Greens will oppose amendment No 5.
In respect of amendment No 6, I cannot support omitting cultures in this context. A person’s cultural background can have significant impact on the court’s decision about what makes an appropriate sentencing package. Courts are well placed to exercise commonsense and I do not have serious concerns that people will be excused for criminal behaviour on the basis of their cultural beliefs. As this bill is about sentencing and giving the courts discretion to find the most suitable sentence for an offender, I cannot support this amendment.
This is not an argument for cultural relativism, which is a concept that I deplore as excusing behaviour that often transgresses human rights; it is about finding sentences that are appropriate and actually assist the offender in learning about their behaviour. For instance, somebody who is being tried for an honour killing of a relative who they believe has transgressed a moral code by wanting to marry someone other than the chosen person will not change that opinion by being given a longer prison sentence. We only need look at the success of circle sentencing amongst indigenous people to see that appropriate sentencing can be achieved in line with cultural beliefs. So it is not going to help our community to throw away cultural considerations.
I am not sure if it is the intention but Mr Stefaniak’s amendment No 7 is an offensive amendment because it asserts that, in determining the most appropriate sentencing package for an offender, the court must not consider the impact on family or dependants. This is putting it very baldly that sentencing is about punishment, nothing else, and this is not a standpoint that the Greens can endorse. If that really is the Liberal Party’s position, I would like to see them show courage and honesty and actually tell the public that. That would give the community an opportunity to explain why that approach does not work in the criminal justice system. I am sure that if they came out and did that they would receive many interesting phone calls.
Amendment No 8 has a similar thinking behind it as amendment No 7—that sentencing is about punishment only—and this is a narrow point of view which I cannot support. In respect of amendment No 9, I do not agree that remorse could or should be equated with actions taken in reparation. While reparation is obviously desirable and often does reflect true contrition and remorse, as I said before when in speaking to amendment No 5, not all offenders are in a position to make full reparation. This amendment implies that remorse without reparation is worthless and reparation without remorse is also worthless. We do not agree with either of these ideas. They are too simplistic and they do not help.
I think the Stefaniak amendment No 10 would limit the court’s ability to take into consideration broader current sentencing practices by only looking at the states’