Worth Richard: Third Readings — 
Text is incorporated into the Bound Volume 
Worth Richard: Third Readings — 
[Sitting date: 24 July 2007. Volume:640;Page:10638. Text is incorporated into the Bound Volume.] 
Dr RICHARD WORTH (National) 
: 
 National has reservations about this legislation and has not concealed right from the outset its deep dislike of it. It is not really a case of an Homeric nod by the Law Commission; rather it is the case of a massive blunder. I simply cannot agree with the earlier speaker who made comments about the attractiveness and excellence of this legislation. I would rather say that there is no place for sophistry in this legislation and that this legislation is unfailingly bad. 
It started off life of course as the Criminal Justice Reform Bill. I would like to emphasise that word “reform” because reform can have two meanings. Reform can simply mean change or it can mean change that has an element of added benefit and it is that latter sense we generally understand the word “reform” to refer to. But here in this criminal justice reform legislation there is no element of added benefit. I make three general comments about this legislation as it proceeds through its final stages and is split up into four or five parts. In that splitting up all pretence of reform is abandoned; in fact in these divided parts there is no mention of reform at all—none at all. 
I respond to some comments made by the previous speaker Charles Chauvel in relation to the Sentencing Council and the word “guidelines”. Guidelines are intended to be markers providing assistance but these are not guidelines in that same sense that we see in this legislation. Clause 40 of the original Criminal Justice Reform Bill introduces new section 21A which is headed: “Court must adhere to sentencing guidelines”. There is something very odd in the use of that form of the words “Court must adhere to sentencing guidelines” when guidelines are simply guidelines. The provision in fact reads: “When sentencing an offender a court must impose a sentence that is consistent with any sentencing guidelines that are relevant in the offender’s case unless the court is satisfied that it would be contrary to the interests of justice to do so.” 
I was intrigued when the Minister spoke by the view he propagated and that presumably we were asked to accept—because he is not legally qualified—that what was occurring with this legislation was something that was consistent with what is occurring in other common law jurisdictions. That is wholly wrong. Although others have a greater knowledge of this than I have I ask members to look at three jurisdictions—and I take New South Wales as a starting point. We find there that the role of the New South Wales Sentencing Council is starkly limited. It is not into the world that this legislation is involved in; it is more concerned with reporting to the Minister on sentencing trends and practices— 
Christopher Finlayson 
: And advising. 
Dr RICHARD WORTH 
: —yes—and advising as Mr Finlayson has said. I also made the point at the Committee stage that in the United Kingdom the structure and pattern of what exists there is completely different. I spoke about the Sentencing Advisory Panel. There is also the Sentencing Guidelines Council. In that jurisdiction there truly are guidelines that the judge is required to have regard to but it is not the case that the judge must follow those guidelines as is the case here. 
I look at what goes on in the United States with the United States Sentencing Commission. But of course that commission is a judicial branch of Government. In this legislation we have a very queer mix that constitutionally offends the separation of powers doctrine where the role of the Sentencing Council has aspects of the executive of the legislative and of the judicial. All of that is quite wrong and that is why I say that the Law Commission has made a massive blunder. 
Of course the sentence must fit the crime. Of course there must be broad-based consistency in sentencing. That is why we have an appellate structure; that is why we have a system of rules in place at the moment and the doctrine of precedent which is concerned with consistency. But let us not ever be blinded by the fact that cases are very similar. Each case so often turns on its own particular facts and on the particular circumstances touching the offender. But that is to be swept away. In fact I understand that much work has already been done on these guidelines. In discussions I have had with certainly one member of the commission I have been told that the guidelines are highly prescriptive. There is no room in many cases for any movement at all. So these are much more than guidelines. That is the first point. 
The second point which I believe is probably even more appalling is that there is an agenda in this legislation that is related to controlling prison numbers. And why does the Government want to control prison numbers? It is because of the costs of containment: the costs of building jails and the costs of keeping prisoners in prisons. That should never be a factor to be considered by judges in imposing appropriate sentences. That agenda is driven by a whole lot of things. The cost of building prisons—the cost of containment—is substantially about a view that prisoners should be separately housed in conditions of high creature comfort. I believe that to be quite wrong. Why is it that the military have to share barracks? Why is it that the navy have to sleep on mess decks? Why is it that prisoners are somehow deserving of treatment that is in every sense superadded? 
That is why I think it is very important just to focus for a moment on three provisions in the original bill that underscore the point I am making. The first concerns clause 9 which states in part: “The purposes of the Council are—(a) by producing guidelines about sentencing … to—(iv) facilitate the provision of reliable information to enable penal resources to be effectively managed:”. Sentencing is a discrete concept. It is the event that occurs after the finding of guilt; it has nothing to do with penal resources. Then in clause 15 where there is provision made about the “guideline or group of guidelines” this statutory directive occurs: “A draft guideline or group of guidelines that is available for inspection must be accompanied by a statement of the guidelines’ likely effect on the prison population.” Further in the provisions relating to parliamentary scrutiny there is comment about the fact that the Minister must present each guideline together with a statement of the guidelines’ likely effect on the prison population. All of that is constitutionally very very wrong but it seems the Government does not really care about those issues. 
So I criticise the concept of the guidelines and the way the Government has picked up that concept. I criticise substantially the fact that this bill has an indirect and perverse purpose—that is it proceeds on the basis of setting guidelines in the way the previous speaker has endeavoured to exhort to us but the reality is that there is this oblique and wrongful purpose. 
I would just like to say in the short time available something about parole. We have sat in this House since the time the Sentencing Act was passed and heard from Labour members opposite of how magnificent that legislation is on the issue of parole. As others have said in earlier speeches the deal in that legislation—much vaunted much praised by the Government—was that the rapist sentenced to 9 years’ jail could get out in 3. That is to be marginally moved so that under this legislation that same person will get out in 6 years. Truth in sentencing is the claim; I say “Not so!”.