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Wednesday, 28 October 1914

Senator O'KEEFE (Tasmania) . - A good deal of what Senator Gould has said would be quite applicable if the clause provided that the maximum term shall be doubled. It must be borne in mind that what we are dealing with is the maximum term, and not the term of imprisonment which is actually to be meted out. It has been admitted by Senators Gould, Keating, and Senior that the question at issue is what the maximum term shall be. I think it is generally acknowledged that in every case wo have to leave a discretion to the Judge.

Senator Shannon - But this clause leaves nothing to his discretion.

Senator O'KEEFE - It does, because a maximum term is prescribed. It does not seem to me that there is much necessity for the clause, but I take it that it has not been included in the Bill just for the fun of the thing.

Senator Keating - It was taken out of the Queensland Criminal Code.

Senator O'KEEFE - It was not put in that code for the mere fun of putting it in. Probably the Queensland official who drafted the provision had what appeared to him to be good reasons, and, no doubt, the Commonwealth officer had what he deemed good reasons for lifting the provision out of the Queensland Act.

Senator Turley - Into which it was possibly lifted from another Act.

Senator O'KEEFE - At a later stage, perhaps, we may hear further reasons from the Minister for retaining the provision. If he will consent to the omission of the words " or of a State," I think it will remove the chief objection of Senator Senior to the clause, namely, that it creates a grave anomaly. It seems to me an anomaly to give an advantage to the States, so to speak. That is to say, the clause gives our Court the power to double the penalty for an offence of which a man has been convicted twice in a State. We cannot say to the States that they shall have the same power as the Commonwealth in this regard. The Minister has indicated that he is willing to consider the advisability of striking out the words " or of a State." If the words are omitted, and the Minister desires to retain the clause I will support it. The clause seems to me like a chip in porridge. It does not matter very much whether it is in the Bill or not.

Senator Senior - You are not a prisoner.

Senator O'KEEFE - I may be some day, but in every case the prisoner has to depend upon his own record and the fair-mindedness of the Judge.

Senator Keating - Do not run away with the idea that clause 23 protects us.

Senator O'KEEFE - Senators Keating and Senior base their objections to the clause mainly on the ground that there is an anomaly in allowing the State to be brought into the case at all. If that anomaly is removed, what serious objections can be offered to the provision ?

Senator GARDINER(New South Wales - Vice-President of the Executive

Council) [4.48]. - There has been a real reason given for striking out the words " or of a State," and I am prepared to assent to their deletion. As soon as I intimated my willingness to omit the words there was a demand made upon me to drop the clause. If it is the view of honorable senators generally that there should be no extra punishment provided for second offences they can have their way, but I hope that they will take no step of the kind. In this Bill we are not fixing any specific penalty. We are providing a system under which a Judge may impose a penalty. He may sentence a second offender to a term less than the maximum. If honorable senators generally think it is right that a second offender shall not be liable to a greater penalty than a first offender, the decision rests with them. Personally, I think that the clause is a necessary and very wise provision.

Senator Senior - Would a Judge have any option but to inflict a double penalty on a second offender?

Senator GARDINER - Certainly he would have an option, because the clause simply provides what the maximum penalty shall be.

Senator Mullan - Suppose that a Judge sentenced a man to twelve months' imprisonment, and that the man is brought before him for trial at the end of two years, what then?

Senator GARDINER - For a fraud against the Customs Act an offender may be sentenced to two years' imprisonment. If it is contended that the provision for a maximum penalty will influence a Judge, a man may make sufficient money out of a case of fraud against the Customs to be able to run the risk of being imprisoned again. I am prepared to accept an amendment to omit the words " or of a State," so as to make the clause applicable to the Commonwealth and its Territories. That will do away with the first objection of Senators Keating and Senior. We are very anxious to get the Bill passed ; in fact, its passage was wanted last week. I do not wish to strike out a clause by way of an experiment, as it might lead to a sitting of the Senate on Wednesday next. Probably I ought not to have put forward that suggestion. Unless some better reason is advanced for a change I do not see my way clear to consent to the clause being struck out; but, of course, the matter is in the hands of the Committee.

Senator Bakhap - Why does the Minister propose to except States when he does not consider it right to except the Territories 1

Senator GARDINER - I was prepared to except the States to meet the desire of Senators Senior and Keating, so that that anomaly should not be retained in the Bill. I do not know whether we have any convictions in Territories, but I would remind the honorable senator that the Territories are part of the Commonwealth.

Senator Senior - Hot according to this Bill.

Senator GARDINER -The Territories are under the control of the Commonwealth Government. I suggest that if we legislate to meet exceptional cases, we shall be going out of our way. If honorable senators really wish to improve the clause in the direction they have pointed out, they can move for the omission of the words I quoted, but I hope that the clause will be allowed to remain as it is.

Senator Lt.-Colonel Sir ALBERTGOULD (New South Wales) [4.52].- I ask the Vice-President of the Executive Council to keep in mind the fact that according to the particular offence a maximum penalty is provided for. For instance, for forgery there is one maximum, while for larceny or burglary there is another maximum. Whatever crime it may be, a maximum punishment is laid down. In fixing the penalty to be awarded, the Legislature Has always regarded the gravity of the offence. It is perfectly true that a Judge need not inflict the minimum, but what does that mean? It is tantamount to saying, " Here is a code making the maximum punishment for every offence imprisonment for life, and the Judge shall determine whether the penalty shall be imprisonment for a week, or for five years, or for life." It limits the power of the Judge, who, whatever his own opinion may be, will say that the Legislature did not regard one offence as being as heinous as another offence, and that, therefore, that fact must be taken into consideration. It has been urged that a Judge will have the power to double the sentence. A Judge may have that power, but at the same time he may say, " The offence was of so venial a character that I shall give a light punishment." I would point out to honorable senators that if a man who has been previously convicted is put on trial for a particular offence, the circumstances may show that the offence was comparatively venial or slight, and the Judge has the right to exercise a discretion as to the period of punishment. There are some Judges who, though most estimable men in themselves, have an extreme horror of certain crimes, and are prepared to inflict very severe punishment.

Senator O'Keefe - They ought to be removed from the Bench.

Senator Lt Colonel Sir ALBERT GOULD - Every man has a weakness in his character. One Judge has a great detestation of one offence; another Judge has a horror of some other offence, and he may be quite above suspicion as regards honesty, integrity, and ability. If we strike out the word " State," we shall proclaim to the world that this Parliament is desirous of inflicting vindictive punishment upon persons who commit certain offences. Surely it is very much better that we should be satisfied to visit offenders with reasonable punishment.

Senator O'Keefe - As a general rule, does the honorable senator attach more importance to a second than to a first offence 1

Senator Lt Colonel Sir ALBERT GOULD - I do.

Senator O'Keefe - That is why this clause has been inserted.

Senator Lt Colonel Sir ALBERT GOULD - The Judge will be acquainted with all the circumstances of any case, and, in the light of that knowledge, will determine the punishment which is to be inflicted. As a result, one man may be sentenced to twelve months' imprisonment for a first offence, whilst another man may receive two years' imprisonment for a second offence. If we carry our thoughts back a century, we shall recollect that then the law was full of vindictive punishments. The death penalty was inflicted for numerous offences. Transportation was the punishment for many offences which to-day would be amply punished by a fortnight's imprisonment. We do not desire the sympathies of juries to prevent them from convicting criminals. It is well that we should bear this aspect of the matter in mind. We know that many a man was sent out to Australia for a very venial offence - that the brand was put upon him for a breach of the law which to-day would be fully punished by fourteen days' imprisonment. Let us seek to provide for adequate, but not for vindictive, punishment which may influence juries in the direction of refusing to con.vict accused persons.

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