Page 4164 - Week 13 - Tuesday, 15 November 2005

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Then there is a note:

For the power to make guideline judgments, see pt 4.1A.

This would introduce guideline judgments which, I indicated before, have been introduced in New South Wales and have operated quite effectively there. It gives courts guidelines in terms of certain types of offences. I gave an example in my speech earlier this morning in relation to how this could operate. Of course, it does not limit the ability of a court to do something completely different, but a court does have to give written reasons for the inconsistency. Again, it is something that has worked well in New South Wales.

I heard the Chief Minister say, as a reason for not doing this, “In New South Wales, you have got a big jurisdiction.” And you do. You have got about eight or nine Supreme Court judges; you have got a large number of District Court judges; I cannot remember how many magistrates there are but obviously there are a lot there. Yes, you can see the logic in that.

Because we are a small jurisdiction does not mean that something like this would not be very helpful. Again, it was something recommended to me by a number of lawyers and is supported by the AFPA, victims groups and others because it gives, for serious offences, a superior court the ability to say, “Right, let’s have a guideline judgment there.” It ensures consistency. Even though we are a small jurisdiction, I do not think anyone could truthfully say that, in the ACT, we have consistency. We do not. Each judge, each magistrate, is an individual. There has to be, by necessity, as human beings, a certain amount of subjectivity. That does make it hard for consistency.

It is a perennial problem in courts, no matter whether you have a small system where, if anything, it is possibly starker, or a larger system. That is why, as much as anything, for consistency of judgments, New South Wales went down this track. It would help immensely in terms of ensuring a greater consistency of judgments in our Supreme Court and obviously there would be a follow-on, flow-on, effect to the Magistrates Court as well. I commend the amendment to the Assembly.

DR FOSKEY (Molonglo) (5.37): Sentencing courts already must have regard to precedent. Consequently, I do not see the need for this amendment. I fear that it is yet another attempt to allow the government of the day to interfere with judicial independence. I envisage that it would unduly and improperly politicise the judicial process, as the government will come under media and public pressure to make particular cases into guideline cases.

I can say quite confidently that we would witness both of the major parties trying to outdo each other with tough-on-crime credentials, as happens in other jurisdictions, including the one we have been incised from, which is also the one that Mr Stefaniak gave as an example. This will be to the detriment of sensible, proportionate and individually tailored sentencing decisions. Not only are judges individuals but also offenders undergoing sentencing are.

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