Page 4396 - Week 14 - Tuesday, 22 November 2005
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is the problem?” He says, “The court has this discretion to take into account a range of aggravating or mitigating factors if it does not want to accept this period; this is just sending a signal.” But it does not work quite like that. The New South Wales Court of Criminal Appeal, in the cases of Way and Pellew, is interpreting the provision as not reducing this judicial discretion but as an exercise of assessing subjective and objective factors.
It is this overlay of issues that have to be taken into account. Subject to the conclusions you reach in relation to the list, you either impose the standard non-parole period or you impose a higher one or a lower one, on the basis that we, as a community, are now saying, “We expect a sentence of this unless you can find a reason to increase it or decrease it.”
I am concerned at any legislation which moves or impacts on judicial discretion or the way in which sentences have been traditionally handed down in Australia. It is not good enough just to say, “This is how they do it in New South Wales.” As I say repeatedly, Canberra is not Sydney; we do not need just to parrot what it is that the government in Sydney does, albeit a Labor government—and a good Labor government, at that. This is a good Labor government; in fact, this is a better Labor government. We will not do what they do in the New South Wales parliament and hold that up as a benchmark or as a measure against which we should mark or measure ourselves.
For instance, if one goes to the table setting out the standard non-parole periods—and I have issues with this—item 9 states:
Offence against the Criminal Code, section 311 (Burglary), if the offender has been convicted of a burglary offence in the previous 5 years …
There is a mandatory sentence of imprisonment of one year. That requires a debate in itself. Mr Stefaniak simply presents us with an amendment with columns. I am sure Dr Foskey could give a half-hour speech on the considerations that one should take into account in relation to just that: where there is a burglary offence, if the offender has been convicted in the last five years of a burglary offence, then you have to go to jail for a year before you can get parole. This is my concern. I have issues with that. I would even debate that by itself.
Item 12 states:
Offence against Drugs of Dependence Act 1989, section 164 (2) (Sale or supply) if the quantity of the drug to which the offence relates is at least 30 but less than 50 times the quantity prescribed as a trafficable quantity—
the sentence is a minimum 10 years in jail. Item 11 states:
Offence against Drugs of Dependence Act 1989, section 164 (2) (Sale or supply) if the quantity of the drug to which the offence relates is at least 50 times the quantity prescribed as a trafficable quantity—
the sentence is 15 years in jail. As Mr Stefaniak knows, it is a form of mandatory sentencing. You have got your ifs and your buts, and your aggravating and your
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