Franks Stephen: Parole (Extended Supervision) and Sentencing Amendment Bill — In Committee 
Franks Stephen: Parole (Extended Supervision) and Sentencing Amendment Bill — In Committee 
[Volume:618;Page:14173] 
STEPHEN FRANKS (ACT) 
: 
 Part 2 of the Parole (Extended Supervision) and Sentencing Amendment Bill has a whole raft of minor patch-ups to the Sentencing Act. I want to look at one or two of them. The first one is in clause 15 “Proof of facts”. In the Sentencing Act Mr Goff’s brave new gift to criminal justice in this country we had a complete code about the evidence that a judge has to take into account on sentencing. It is in section 24 of the Act. Let us look at what Mr Goff is now proposing: that in section 24(2)(c) the words “beyond a reasonable doubt” must be inserted. It now states that a prosecutor the guy who is trying to get a decent sentence must prove beyond reasonable doubt the existence of any disputed aggravating fact. That means any fact that would increase the sentence must be proved beyond reasonable doubt. The prosecutor must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence—that is the guy who is trying to get the offender off a sentence. 
Let us then look at what the offender has to do. The offender must prove on the balance of probabilities the existence of any disputed mitigating fact not related to the offence. So let us think what a disputed mitigating fact may be that is not related to the nature of the offence. It is something such as the offender had been nice to his or her mother. How can the prosecutor prove beyond a reasonable doubt that the offender was not? Or the mitigating fact may be that the offender gave lots of money to the SPCA. How is the prosecutor going to disprove that beyond a reasonable doubt? Whose interests is Mr Goff serving when he comes forward with that sort of fatuous amendment? 
Ron Mark 
: “I’ve become a Christian.” 
STEPHEN FRANKS 
: The offender may say he or she has become a Christian so the prosecutor must disprove that. The offender may say he or she has become a Christian and will never commit the offence again. Mr Mark has raised an excellent example of what seems to be deep at the heart of Mr Goff’s priorities for the reform of our criminal justice system. 
Judith Collins 
: Any chance of Mr Choudhary becoming a Christian? 
STEPHEN FRANKS 
: I am not sure whether it would be of sufficient mitigation. If Mr Choudhary became a Christian I do not think people would forgive him either. However looking back at section 24(2)(c) in clause 15 I cannot even see an explanation of why that is being done. I have no doubt that Mr Goff has a reason to now make the prosecution negate beyond a reasonable doubt the claim by an offender that he or she has become a Christian but I would really like to see how that would be done. 
Clause 17 states that when reparation is ordered against the poor dear offender the court must not impose a condition that it be paid as a lump sum unless it is satisfied that the offender has sufficient means to pay it immediately. The poor offender may have to sell his or her house. Reparation of course is simply compensation to the poor victim but now in all the toughening-up that Mr Goff has been telling us about he is making sure that a court does not make the mistake of putting the offender under time pressure. We would not want that! 
Then I look at clause 19 which refers to section 86 of the principal Act. Section 86 is the provision that has been put in to do what the Court of Appeal told Mr Goff was needed. Mr Goff told the Court of Appeal that in his judgment it was unnecessary because he had already assumed that the court could do it. But the Court of Appeal said it needed to know when it could set longer non-parole periods because the Act stated that it could be done only in extraordinary circumstances or words to that effect. Section 86 is now to state that a longer non-parole period than the minimum can be set in order to hold the offender accountable denounce the conduct deter the offender or protect the community from the offender. Those are the purposes of sentencing. Mr Goff has had to state that when the court wants to set a longer non-parole period it can apply the conditions of sentencing. What can it do? It can then set a non-parole period that extends to two-thirds of the sentence. In other words the court can now go back to what the law was before Mr Goff changed it. Before it was changed violent offenders had to serve two-thirds of their sentence. Now in all his toughness Mr Goff has gone back and stated that a court can reinstate the conditions that prevailed before he changed the law. What a toughening-up that is! He has gone back to the position that Mr Ryall had imposed when he was the Minister. Mr Goff has stated the court can now get us back to where we were before he started to change the law.