Page 4689 - Week 12 - Thursday, 1 November 2018
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As with our whole criminal justice system, there is a balance to be maintained. Sentencing is not just for rehabilitation but to promote a respect for the law and the maintenance of a just and safe society. Community service orders are not just about the individual, which is why the number of hours that can be completed through therapy and education programs is capped at 25 per cent of the total number of hours.
This amendment bill gives our community corrections officers more tools to help offenders stop the cycle of reoffending. Allowing community service work hours to be partially completed through therapy and education programs gives the territory’s justice system an opportunity to better support offenders in developing essential skills for living harmoniously within our community. This bill also clarifies some elements of the intensive correction orders scheme introduced in 2016 and restructures parts of the sentencing and sentencing administration acts to align the procedure sentencing courts use when ordering reports about offenders.
Firstly, the bill clarifies what should happen where an offender is convicted of a further offence punishable by imprisonment while on an ICO. This amendment removes a potential ambiguity in the existing legislation identified by Justice Penfold in 2017 in the case of R v XH. If an offender is sentenced to an ICO and then goes on to be found guilty of a further offence punishable by imprisonment, the court must cancel the intensive correction order unless it is not in the interests of justice to do so. The offender may be able to serve only part of that remaining term in full-time custody if the judge or magistrate sets a non-parole period.
The amendments ensure there is fairness between offenders who have their ICOs cancelled and offenders who spend their entire sentence in full-time detention by providing rules about when a non-parole period can be set following an ICO cancellation. If an offender wanted to apply for parole they would need to apply to the Sentence Administration Board using the same practices and procedures that apply to other offenders serving a sentence of full-time detention.
As was highlighted in the explanatory statement to the bill, this amendment limits the right to liberty and security protected by section 17 of the Human Rights Act as it provides for full-time detention when an ICO is cancelled. This is a reasonable limitation on civil rights. The amendment leaves in place the ability for the judge or magistrate to find it is not in the interests of justice to cancel the order. If it is in the interests of justice for the order to be cancelled, there is further judicial discretion given to determine whether a parole order is appropriate.
Committing a further offence punishable by imprisonment is a serious breach of an ICO, which itself is a final alternative to full-time imprisonment. Requiring an offender to spend the remainder of their order term in full imprisonment, provided it is in the interests of justice to do so and allowing for the possibility of parole where appropriate, is the most proportionate response. Arising from this, the bill also clarifies what official notifications a court needs to make following the cancellation of an intensive correction order.
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