Page 4394 - Week 14 - Tuesday, 22 November 2005
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Mr Stefaniak’s amendment includes a table of 13 offences providing standard non-parole periods. The amendment states that the court must impose these periods unless there are reasons for not doing so. When setting a non-parole period the court must consider 26 aggravating or mitigating criteria. Apart from the extra workload upon courts, the amendment gives the impression of significantly reducing judicial discretion and would create unnecessary disputes for appeal.
Mr Stefaniak reasons that standard parole periods create greater certainty about the time the criminal spends in jail and are necessary because ACT sentences are out of kilter now with New South Wales. Mr Stefaniak, in speaking to his amendment now, also suggests that they are out of kilter with community expectations in relation to sentences that have been handed down for particular offences.
It has to be said, however, that Mr Stefaniak does not, in addressing this amendment, acknowledge that the treatment of parole periods in New South Wales and the ACT is fundamentally different. In New South Wales the time an offender spends on parole is counted towards completing the whole sentence. In the ACT an offender’s parole time is not counted towards completing the sentence until the whole sentence is finished. If an ACT offender breaches parole the offender must serve the whole parole period in prison unless parole is again granted. If a New South Wales offender breaches parole they are only obliged to serve the remaining time of their sentence. Consequently, the incentive to abide by parole in the ACT is far greater than it is in New South Wales.
It can also be argued that Mr Stefaniak’s amendment contradicts the Liberal Party’s 2003 submission to the sentencing review itself. The Liberal Party made a submission, through the then spokesperson Mr Smyth, on 31 January 2003. Under the heading “Purposes of sentencing”, Mr Smyth, in his submission, wrote what appears to be the crux of the submission. Mr Smyth said, on behalf of the Liberal Party:
I believe that the most significant outcome we can strive for is to reduce future crime by improving the performance of our corrections system in rehabilitating offenders. In my approaches … to this area I emphasis rehabilitation not to elevate it above the other statutory objectives, but rather because it is the element which has the greatest significance for the post-trial management of offenders.
Those are most laudable aims, and in this bill the government has, in fact, acted on Mr Smyth’s submission. But Mr Stefaniak would now seek, essentially, to contradict the position put by his leader, namely, that the most significant feature of a corrections system should be rehabilitation, not that it should be put apart from other objectives, as Mr Smyth says. It is the element with the greatest significance. That is a position that the government accepts.
The key purpose of parole is certainly to moderate a sentence of imprisonment to enable the offender to rehabilitate. It is the submission that Mr Smyth made on behalf of the Liberal Party and is the philosophy that underpins the sentencing legislation and this government’s commitment to sentencing and corrections.
It is a position that is also supported by the High Court. In the case of R v Shrestha, (1991) 173 CLR, at page 48, the High Court acknowledged, as a key purpose of parole,
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