Page 4382 - Week 14 - Tuesday, 22 November 2005
That is fine because that is traditional. It would be unfair if that were changed. The second one reads:
any alleged offences that the offender has not admitted in accordance with section 57 (Outstanding additional offences taken into account in sentencing);
That is a longstanding principle where an offender can plead guilty to a number of additional offences, which will be taken into account in sentencing. The third one reads:
that the offender chose not to give evidence on oath;
Again, that has been a longstanding principle, although we have done away with DOCS statements. That is a different thing entirely. Subclause (f) reads:
that the offender chose to plead not guilty;
A fundamental tenet of our justice system is “innocent until proven guilty”. That has been in our system basically since the dawn of time. A more recent addition is subclause (g), which reads:
that the offender chose not to take part, or chose not to continue to take part, in restorative justice for the offence under the Crimes (Restorative Justice) Act 2004.
That again is part of a provision of the restorative justice act, which was passed by this Assembly. I have no quibble with that but I have some concern with subclauses (d) and (e). Subclause (d) reads:
that the offender may have committed perjury or been guilty of contempt of court during the proceeding;
Subclause (e) reads:
the offender’s behaviour in court;
Firstly, the offender may have committed perjury or been guilty of contempt of court during the proceedings. Whilst it might be said that additional charges can be brought, I think it is important for the administration of justice—and indeed if someone is in the process of being sentenced—for matters like that to be taken into account. You do not have to be charged with another substantive offence but if a person has committed perjury or been guilty of contempt of the court during the proceedings, I think it is a relevant factor—certainly contempt of court—in deciding what the sentence should be and whether that is an aggravating circumstance justifying an increase in severity.
The offender’s behaviour in court is also important. If an offender shows contrition and genuine remorse in court—and we have that—that is something to be taken into account in mitigating the sentence. The corollary should surely apply—that is that, if an offender’s behaviour in court is so bad that the court thinks, “This person is just showing contempt for the system, contempt for the victims, contempt for this court, contempt for everyone concerned here today; there is clearly absolutely no remorse; in fact he or she