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Law reform commission to examine principles of sentencing offenders



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53

- LAW REFORM COMMISSION TO EXAMINE

* PRINCIPLES OF SENTENCING OFFENDERS

The Attorney-General, Senator Peter Durack,

y Q.C. has asked the Law Reform Commission to examine in

depth the principles involved in sentencing offenders.

In the examination of the principles of

sentencing, Senator Durack has asked the Commission to

take into account:-

. the costs and other unsatisfactory

characteristics of punishment by imprisonment

. the desirability of ensuring that offenders

against a law of the Commonwealth receive

uniform sentences

. whether principles and guidelines for the

1 imposition of prison sentences should be

formulated

. the interests of the public and the victims

of crime, and

. whether existing laws providing alternatives

to imprisonment are adequate.

Senator Durack said that to assist the Law

Reform Commission in its work, Professor Duncan

Chappell, an eminent international criminologist, had

been appointed a full time member of the Law Reform

Commission for 12 months.

Professor Chappell, 39, has just recently

been Visiting professor at the Department of legal

Studies at La Trobe University in Melbourne. After

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graduating from the University of Tasmania and

obtaining a Doctorate from Cambridge, Professor

Chappell has held senior positions as a criminologist

in American Universities. His most recent appointments

have been in the Department of Sociology and the

' Department of Political Science at the University of

Washington in Seattle. He takes up his appointment as a

full time member of the Commission on September 11 this

year.

The Attorney-General said he had asked the

Law Reform Commission to collaborate with the

Australian Institute of Criminology in the preparation

of its report.

The Commission had been asked to take into

account the conclusions of the Fifth United Nations r

Congress on the prevention of Crime and Treatment of

Offenders held in Geneva in 1975.

Australia would be the host nation for the

Sixth United Nations Congress in 1980. Over 2000

delegates, specialising in law, criminology and other

related disciplines would be attending the Conference

at the Opera House in Sydney.

Senator Durack said it was expected that the

report of the Law Reform Commission on sentencing would

be an important part of Australia's contribution to the

1980 conference.

A major aspect of the inquiry would be to

examine the need for greater uniformity in sentencing.

The Commonwealth Government felt it was desirable that · „

as far as possible, people being dealt with under

Commonwealth law should be treated uniformly throughout

Australia.

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It was expected that the Commission would

» examine new concepts of sentencing, particularly in the

. United States where guidelines Were set out to help

those passing sentences to be more consistent in the

’ penalties they imposed for similar offences. The

Commission had been asked to examine whether a

sentencing council or commission might assist in

achieving greater uniformity.

In examining alternatives to imprisonment,

the Commission will look at the effectiveness, cost

benefit, and public interest of options such as

compensation orders, restitution orders and community

service orders.

When making recommendations to revise the

law, Senator Durack said he had asked the Commission to

ensure that any new proposals did not trespass on

personal rights and liberties and did not unduly make

* the rights and liberties of citizens dependent on

administrative rather than judicial decisions. The

proposals should also be consistent with the

International Covenant on Civil and Political Rights.

The Attorney-General said the recommendations

would take into account the need for uniformity between

the laws of the Territories and the laws of the States.

' He believed the report would assist greatly

all those involved in the administration of criminal

justice in Australia, particularly judges and

* ’ · · magistrates who were being constantly confronted by the

problems of sentencing.

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Senator Durack said he had asked the

Commission to present an interim report by 1 June next

year. »

The terms of reference to the law Reform

Commission are attached.

Canberra

13 August 1978

43/78 ,

* * * * *

LAW REFORM COMMISSION ACT 1973

REFERENCE OF MATTERS TO THE LAW REFORM COMMISSION

I, PETER DREW DURACK, Attorney-General, HAVING REGARD

TO - _

(a) the function of the Law Reform

Commission, in pursuance of reference to

the Commission made by the

Attorney-General, of reviewing

Commonwealth and Territorial laws to

which the Law Reform Commission Act 1973

applies;

(b) the costs and other unsatisfactory

characteristics of punishment by

imprisonment;

(c) the desirability of ensuring that

offenders against a law of the Common­

wealth are treated as uniformly as

possible throughout the Commonwealth in

respect of the sentences imposed on

them;

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(d) the need for a revision of laws of the

Commonwealth and the Australian Capital

Territory, with particular reference to

the questions -

(i ) whether principles" and guide­

lines for the imposition of

sentences of imprisonment should

. be formulated; and

(ii) whether existing laws providing

alternatives to imprisonment are

adequate;

(e) the conclusions of the Fifth United

Nations Congress on the prevention of

. Crime and Treatment . of Offenders

concerning the use of imprisonment, as

set out in the report of the United

Nations Secretariat in relation to the

Congress (E.76.IV.2); and

(f) the matters to be considered at the

Sixth United Nations Congress on the

prevention of Crime and the Treatment of

Offenders to be held in Australia in

1980, with particular reference to the

agenda topic relating to the de-institu­

tionalization of corrections,

HEREBY REFER the following matter to the Law Reform

Commission, as provided by the Law Reform Commission

Act 1973.

FOR REVIEW AND REPORT ON the laws of the Commonwealth

and the Australian Capital Territory relating to the

imposition of punishment for offences and any related

matters.

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IN ITS REVIEW AND REPORT the Commission -

1. shall collaborate with the Australian Institute of

criminology;

2. shall have particular regard to -

(a) the formulation of principles and guide­

lines for the imposition of a sentence

of imprisonment;

(b) the question whether legislation should

be introduced to provide that no person

is to be sentenced to imprisonment

unless the court is of the opinion that,

having regard to all the circumstances

of the case, no other sentence is

appropriate;

(c) the adequacy of existing laws providing

alternatives to sentences of imprison­

ment;

(d) the need for new laws providing altern­

atives to sentences of imprisonment,

with particular reference to restitution

orders, compensation orders, community

, service orders and similar orders;

• (e) the need for greater uniformity in

sentencing, with particular reference to

. laws with respect to the grading of

offences and orders and with respect to

processes designed to structure

discretion in sentencing by means of the

establishment of guideline sentences and

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the use of a sentencing council,

institute or commission for this pur­

pose;

(f) the laws that would be required to give

effect to the recommendations of the

Commission;

(g) the provisions of Section 7 of the Law

Reform Commission Act providing that, in

the performance of its functions, the

Commission shall review laws to which

the Act applies, and consider proposals,

with a view to ensuring -

(i) that such laws and proposals do

not trespass unduly on personal

rights and liberties and do not

unduly make the rights and

liberties of citizens dependent

upon administrative rather than

judicial decisions; and

(ii) that, as far as practicable,

such laws and proposals are

consistent with the Articles of

the International Covenant on

Civil and Political Rights; and

(h) its function in accordance with Section

6(1) of the Act to consider proposals

for uniformity between laws of. the

Territories and laws of the States;

3. shall -

(a) consider the question whether, in the

■ determination of the punishment for an

offence, an emphasis should be placed

on -

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(i) the state of mind of the

offender in the commission of

the offence; or

(ii) the personal characteristics of

the offender and the need for

treatment; and

(b) take into account the interests of the

public and the victims of crime.

THE COMMISSION IS REQUIRED to submit by 1 June 1979 an

Interim Report on the subject matter of the reference

dealing in particular with those aspects of the

reference that are relevant to expediting and maxim­

izing de-institutionalization of punishment.

*****

JUDGE FOR NORFOLK ISLAND

The Attorney-General, Senator Peter Durack,

Q.C., announced today that Mr Justice St. John had been

appointed a Judge of the Supreme Court of Norfolk

Island.

Mr Justice St. John is a Judge of the Federal

Court of Australia and of the Australian Industrial

Court and is also an additional Judge of the Supreme

Courts of the Australian Capital Territory and the

Northern Territory.

He was first appointed to the Bench in 1975.

Canberra

17 August 1978

44/78

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