Legislative Assembly for the ACT: 2005 Week 13 Hansard (Tuesday, 15 November 2005) . . Page.. 4165 ..
MR STANHOPE (Ginninderra—Chief Minister, Attorney-General, Minister for the Environment and Minister for Arts, Heritage and Indigenous Affairs) (5.38): This amendment, in conjunction with Mr Stefaniak’s foreshadowed new part 4.1, would introduce guideline judgments to the territory. The government will oppose these amendments. During the development of the government’s Crime Sentencing Bill, not a single stakeholder advocated guideline judgments. In his speech introducing the amendment, Mr Stefaniak gave no reasons why the ACT needs guideline judgments at this time, apart from bringing the ACT into line with New South Wales. Mr Stefaniak’s proposal does indeed follow the New South Wales act.
Guideline judgments are judicial statements on the suitable range, starting point or factors to be considered when imposing sentences for a type of criminal offence. Guideline judgments aim to improve the consistency of sentencing where the decisions of inferior courts are too variable to be consistent. Usually the superior court issuing the guideline judgment will use a case that typifies the facts in forming the prosecution of an offence.
As I indicated earlier, New South Wales has three tiers of courts—local, district, and supreme. The 190 local courts in New South Wales are geographically spread across the state. In 2002-03, all New South Wales courts imposed a total of 15,971 custodial sentences. Conversely, the two ACT tiers of courts are the Magistrates Court and the Supreme Court. The two courthouses are both located in Civic. In fact, they are 100 metres apart. In 2003-04, both tiers of the ACT courts imposed a total of 822 custodial sentences. The size of the ACT simply does not warrant guideline judgments, nor is the ACT experiencing a problem with precedent.
Further, while not ruling out guideline judgment as a whole, the High Court ruled, in Wong v the Queen, against the guideline judgment that substitutes for the role of the parliament to set penalties. The High Court also found that the New South Wales court had acted beyond its power under the Criminal Appeal Act of 1912, because, while it had jurisdiction in respect of the particular offenders before it, the court had no jurisdiction to publish a table of future punishments over other offenders not before the court.
The High Court did not determine whether the guideline judgment issued in Wong offended the separation of traditional and executive powers. However, reference was made to the Canadian Supreme Court’s deliberations on the matter. The majority in that Canadian case decided it was not for the court to create subsets of legislatively identified offences. In his judgment, Justice Kirby stated that the introduction of subclassifications for statutory offence by reference to quantity alone is incompatible with the scheme devised by the parliament.
Rather than decide this issue, it seems that this reasoning of the majority of the High Court supported their decision that the New South Wales court’s guideline judgment is contrary to sentencing principles, which include many contradictory elements of decision-making and require proportionality from the sentencing court. Guideline judgments become a legal and political problem when the court substitutes for the role of parliament and begins to prescribe particularities of facts to sentences, rather than identifying an appropriate range, relevant factors or starting point for a type of offence.