Ivana Bacik (Independent)

As proposer, I believe I can speak on this one more time. In answer to Senator Walsh, I have no problem with the idea that a fine should be less than what would be otherwise appropriate because that is in ease of the defendant. The principle of interpretation of a criminal statute is that what is in favour of the accused or the defendant would apply. That is not the difficulty which, as Senator Regan noted, is not that the court can impose a greater fine by virtue of the accused's financial circumstances but the fact that the fine is greater than what would otherwise be appropriate. What would otherwise be appropriate, by applying the principle in DPP v. M and that adopted by sentencing courts generally, is the reasonable and proportionate fine. The danger is that the current formulation allows a court to impose an unreasonably and disproportionately high fine simply because an offender has greater means. That may be a difficulty.

As Senators Regan and Walsh stated, we all agree with the Law Reform Commission's principle of equality of impact and the idea that financial circumstances be taken into account. However, in proposing that we amend the section by taking out subsections (3) and (9), I am simply trying to ensure the court stays within current parameters of sentencing in having regard to the financial circumstances of an accused.