Thursday, July 21, 2011

Sentencing remarks of his Honour Magistrate Rosencwajg


Melbourne Magistrates' Court 21 July 2001


[16] Indeed, it was on the basis of your medical condition, that you asked I impose a form of a suspended sentence of imprisonment.

[17] In doing so, you also acknowledged, in court, the irony of that submission, coming from a man who had publicly advocated the abolition of suspended sentences, and no doubt, to whatever degree, influenced the public and political debate on that issue. Legislation has recently been passed restricting the ability of the County and Supreme Courts to impose suspended prison sentences with the intention to extend these legislative provisions to this jurisdiction in the future.

[18] Your present situation before this court in fact highlights the significance of judicial discretion in the sentencing process and that each case has its unique factors requiring a balancing process which results in tailoring sentences to the distinct facts of the offence and the individual circumstances of the accused. A 'one size fits all' approach, without judicial discretion, will result in courts being transformed into vehicles for injustice.

[19] Solely for reason of your medical condition, I have had you assessed for a Home Detention Order which will permit you to serve your sentence of imprisonment in your home, subject to certain conditions. You have indicated that you are more than willing to accept such an order and indeed you have been assessed as suitable.

[20] Ironically, as we speak, a Bill is before Parliament which will amend the Sentencing Act and deprive courts of such a sentencing option. You may very well be the last person in this state to be sentenced to a HDO in its current form.

[21] It would be well for you to reflect on these matters when next you enter the public debate, as indeed you have in the past, on such issues as the abolition of suspended sentencing or even more pressing, the current issue of mandatory minimum sentences as contemplated by the government.


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