Page 3246 - Week 11 - Tuesday, 17 September 2013

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efficiently as possible on the real issues in dispute they are entitled to a discount if they are found guilty.

New section 35A will allow a court to impose a lesser penalty, including a shorter non-parole period, on an offender than it would otherwise have imposed having regard to the degree of assistance provided. The provision is designed to encourage offenders and their lawyers to cooperate to ensure that issues in dispute are the focus prior to trials. The consequence of this is a more efficient system. The ability for an offender to obtain a sentencing discount by narrowing the issues that are not in dispute before a trial saves the time of the court and the justice system overall.

The provision will extend to allowing a reduced sentence to be imposed where an offender, while still maintaining a plea of not guilty through to trial, has nevertheless facilitated the administration of justice through pre-trial disclosures, disclosures made during the trial or otherwise. Importantly, the bill will ensure that if the offender accepts parts of their conduct at sentencing the courts can take into consideration any assistance the offender has given and sentence them accordingly.

The assistance can take a number of other forms which not only help to streamline the hearing of matters but also have the potential to significantly alleviate the distress experienced by victims and their families through the trial process. This is because the victim and their family are less likely to be required to endure drawn-out or protracted inconsequential evidence that unfortunately can sometimes characterise matters heard in Australian criminal courts.

Despite seemingly “similar provisions” in the Crimes (Sentencing) Act 2005, there is currently no express power for the courts to take into consideration when sentencing the extent to which the offender assisted the administration of justice, and then offer a discount. A similar provision does exist in New South Wales and, accordingly, the case law that exists on this provision in New South Wales will serve as a guide to the ACT courts in applying new section 35A. The ACT judiciary will be able to use the New South Wales law as a guide and apply their own judgement to each individual case to achieve a fair and just sentencing outcome.

New section 35A also ensures that a lesser penalty imposed must not be unreasonably disproportionate to the nature and circumstances of the offence. This does not impinge on the separation of powers. The power to provide a discount is simply subject to the qualification that the lesser penalty imposed because of the discount is not to be disproportionate to the nature and circumstances of the offence. This is clearly saying to the courts that the legislature has given you this power and the intention in giving it to you is not so that you give an unreasonably disproportionate discount.

The intention of the Assembly in passing this amendment is clear. Being clear about intentions is not the same as expressing any doubt about the integrity or professionalism of the body that the legislature is expressing its intentions towards. I note that should there ever be an appeal in relation to what is an unreasonably disproportionate penalty it will be the courts themselves that consider and rule on that question.

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