Legislative Assembly for the ACT: 2005 Week 14 Hansard (Tuesday, 22 November 2005) . . Page.. 4397 ..
mitigating factors, but this incremental shift to the removal of judicial discretion and the imposition of mandatory sentences is the first move towards a classic mandatory sentencing regime. This burglary offence, No 9, is: two strikes and you’re out—all these philosophies in relation to sentencing that require the hardest consideration.
We can all conjure up a scenario—and that is the difficulty with this; we are not sitting in court in judgment of somebody that committed a burglary five years ago—of some young, mad, out-of-control kid, 14 years old, charged and convicted of burglary five years ago. He is now 19; he is now an adult; and he does some mad thing again. You say, “You were mad when you were 14, an immature, unformed kid, running wild and out of control, from a dysfunctional home, et cetera”—we could paint the scenario—“You are now a man; you are 19; you should have learnt. Go to jail for a year.”
I honestly do not believe that that is good law, good sense and good corrections. We can all make such a scenario, if we go through each of these one by one. But anything that suggests, as your item 9 does, that a sentence for burglary should be based on whether or not you committed a burglary five years ago seems to me to be inherently flawed. It might be a factor that a court might take into account.
Then to say to the court, “Not only do you take it into account but you must then, unless you can find some other reason, sentence the person to a year in prison,” is not good law and certainly is not backed by a philosophy that will be supported by the government. The government opposes this move to apply statutory non-parole periods in the ACT.
MR STEFANIAK (Ginninderra) (11.39): I certainly disagree with a number of things the government has said. The attorney’s comments are quite predictable. This time around, in his argument, he at least acknowledged it is not mandatory sentencing. I thank him for at least coming that far, but I certainly do not agree with the comments he makes.
Fundamentally, again, yes, Canberra is different from Sydney. It is not Sydney, but it is not all that far from Queanbeyan and it is not all that much further from Goulburn. We are indeed surrounded by New South Wales. One of the problems the attorney has in any argument in relation to sentencing under the criminal law is the stark obviousness of the fact that we are an island surrounded by New South Wales and that these suggestions put before the Assembly by me are based on what a New South Wales Labor government has done, and has done with the concurrence certainly of the opposition in the state parliament and, I would imagine, of a number of Independent members.
In fact, there is debate as to whether they have gone far enough. We certainly think that what they have done is sensible and that they probably have gone far enough and have taken into account relevant considerations such as the fact that it is a recommended standard non-parole period and you can deviate from it. Yes, attorney, I am sure you and I could come up with a case where someone quite clearly should not get what is recommended in every single item here, because of the extenuating circumstances. Conversely, you can come up with cases where people should get more than that. There are always going to be cases like that. That is why there is a discretion with the court in relation to that.
There are aggravating circumstances and mitigating circumstances so that you do not get a situation where your example of a repeat offender in relation to a burglary would