Page 4386 - Week 14 - Tuesday, 22 November 2005

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to 10 years jail but your behaviour during this trial has been so appalling, so intolerable, that I am going to send you to jail for 12 years,” that would be a dangerous road to follow.

It is a remarkable position to put that a magistrate or judge, in determining the length of time somebody should be sent to jail, could say, “I sent the last 10 people who were convicted of this to jail for 10 years, but your behaviour is just appalling; I cannot stand your bad manners; you have been abusive and rude; and you are going to jail for 12 years.” I do not believe that is an appropriate consideration for a court to take into account. I think it is a truly irrelevant consideration. The government will not support the proposed amendment. We have previously discussed proposed amendment 16. It is the same as proposed amendment 13 and the government will not support it.

MR STEFANIAK (Ginninderra) (10.51): I think both members who have spoken against this have missed the point. Firstly Dr Foskey, and to a certain extent the Attorney, has missed the point. They both seem to assume that my amendment—and I speak specifically to (d) and (e)—says that the courts should have regard for these matters. My amendment leaves it entirely up to a court as to whether it does or not. Here we are dealing with matters under the heading of “irrelevant considerations”. It states:

…a court must not increase the severity of the sentence it would otherwise have imposed because of any of the following:

In other words, it precludes a court from taking these relevant matters into consideration. In relation to the Chief Minister’s comments about perjury, very few people in the ACT have ever been charged with perjury, and rightly so. When it happens occasionally it is usually not the defendant but rather a witness who has blatantly and deliberately lied to a court. There is the presumption of innocence and the offence must be proved beyond reasonable doubt. Of course defendants will gild the lily; of course they will probably be telling lies, but I do not think I have ever seen a defendant charged with perjury for simply defending their case in any way. I have on occasion seen witnesses have their papers referred to the commonwealth Attorney-General, but I have not seen too many people prosecuted for perjury in the ACT. If indeed anyone has been prosecuted, I could count them on a couple of my fingers. What we are talking about is very rare. I think the attorney misses the point there.

Dr Foskey indicated, and was quite correct, that judges and magistrates have the opportunity to observe a defendant during a trial or hearing. Judges and magistrates might have their own personal foibles; that is why there are sentencing guidelines in the criminal law. Whether it is what I am suggesting or what the government has in its bill, we are talking guidelines to help guide a court. Judicial officers are there observing a defendant during a trial and are well able to make decisions as a result of that, so why tie their hands? These two sections do exactly that. They take away from their discretion; they tie their hands saying, “You cannot, under any circumstances, take these two matters into account.”

I am less concerned about the perjury angle because, in my experience, that simply does not happen often in our justice system here in the ACT. I think an offender’s behaviour in court is very appropriate, just as an offender’s good behaviour in court, showing contrition, is something a court must take into an account in imposing a penalty. It is

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