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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-03-29 Daily Xml
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CRIMINAL LAW (SENTENCING) (NO CONVICTION ON ELECTION TO BE PROSECUTED) AMENDMENT BILL

Introduction and First Reading

The Hon. R.B. SUCH (Fisher) (10:50): Obtained leave and introduced a bill for an act to amend the Criminal Law (Sentencing) Act 1988. Read a first time.

Second Reading

The Hon. R.B. SUCH (Fisher) (10:51): I move:

That this bill be now read a second time.

This is a reintroduction that is necessary because of the proroguing of parliament. This bill proposes to amend current legislation to ensure that a contested expiation notice (for example, a speeding offence) cannot result in a conviction. Currently, an individual who believes that he or she is innocent of an expiable offence and elects to be prosecuted may receive a conviction whilst an individual who expiates the notice in full, guilty or otherwise, escapes with a fine but without a conviction. To me, this seems inherently unfair.

If an individual who elects to be prosecuted for an offence is found guilty of that offence, a conviction will be recorded on the individual's police certificate and will remain there until such time as it is considered spent. The bill will ensure that a conviction is not recorded against what would otherwise be an expiable offence which, by its very nature, is a minor offence.

I was not aware that this particular situation could occur, but I know from my own experience that it does. The law does not distinguish between a criminal conviction for a challenged expiation notice and any other criminal conviction. The current Attorney wrote to me and stated that there is no distinguishing between a conviction, it is a conviction and that is it.

I do not believe it is fair because, as I pointed out, if you were actually guilty of the alleged offence and you paid up, that is the end of it; so you have actually broken the law, you have admitted you have broken the law and you have paid the fine. However, if you believe you are innocent and you challenge it, you can end up with a conviction which goes on your police record as a criminal conviction. If anyone can tell me that that is a fair system I would be interested to hear their arguments during later debate.

The system is geared against the ordinary citizen anyway because of the cost of challenging an expiation, which could be an expiation for a boating offence or for a range of things. You end up with time lost if you challenge it in court, the cost of lawyers and any other penalties that are issued in addition to the conviction being recorded against your name. I believe it is inherently unfair and when I have raised this with the public they are shocked that that could be the case.

The system acts as a very powerful deterrent to people exercising a fundamental right to have a matter of an expiation adjudicated in court, because you run the risk of ending up with a criminal conviction which will be on your police record when you apply for employment or volunteer work. That is very unfair because there is no guarantee that the conviction was awarded fairly or appropriately. As we know, the court system does not always provide truthful outcomes in terms of what actually happened. It is an assessment by someone who makes a judgement (the magistrate) and who may or may not get it right. I think it is blatantly unfair and inappropriate to have a conviction recorded in those circumstances. People say that it is up to the magistrate. Well, that is theoretically the case, but in reality it often is not the case. I commend this bill to the house and ask members to give it their due consideration.

Debate adjourned on motion of Mrs Geraghty.

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