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The Bottom Line on Baseline Sentencing

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September 19, 2016

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On 17 November 2015, the Victorian Court of Appeal handed down its decision in DPP v Walters (a pseudonym) [2015] VSCA 303, finding that the baseline sentencing provisions are ‘incapable of being given any practical operation’.

To recap, the baseline sentencing provisions were enacted in 2014 – a signature policy of the Coalition Government’s ‘tough-on-crime’ agenda. The system required Victorian courts to base prison sentences for seven serious offences, including murder and incest, on legislated median sentences. However, the system was widely criticised by members of the legal profession for eroding judicial discretion in the sentencing of those offences.

In Walters, the appeal before the Court involved a sentence handed down in the Supreme Court for the offence of incest. In the relevant baseline sentencing provisions, Parliament’s stated intention was that, at some unspecified time in the future, the ‘median sentence’ for incest would be 10 years. At first instance, Justice Lasry sentenced the accused to four years and six months in prison on one of the counts of incest, noting that the case fell below the intended future median baseline sentence because of the plea of guilty, lack of aggravating factors and considerations of mental health and rehabilitation.

The Court of Appeal held (by a 4 – 1 majority) that the baseline provisions, while ‘comprehensible’, contained an ‘incurable’ defect because Parliament had not provided a mechanism by which to achieve the intended future median sentence. The Court held that it was beyond the function of the Court to devise a mechanism to achieve the intended future median, as to do so would be to legislate not interpret.

Following Walters, Attorney-General, Martin Pakula, asked the Sentencing Advisory Council (Council) to review baseline sentencing in Victoria and provide guidance on the most effective legislative mechanism to promote consistent sentencing of offenders and public confidence in the criminal justice system.

In June 2016, the Council released its 440 page report. The Report makes 18 recommendations, including repeal of the baseline sentencing scheme and an amended procedure for guidelines judgement, which would allow the Attorney-General to request a guideline judgment from the Court of Appeal, without the need for an appeal case. The Report also outlines an alternate ‘standard sentence’ scheme, which would work in conjunction with the amended guideline judgment procedure, but it is not the Council’s preferred model for a new sentencing regime.

On 10 June 2016, the Andrews Labor Government announced its plan to adopt 13 of the Report’s recommendations in full, modify two and continue to consider the remaining three. The proposed sentencing reforms will abolish baseline sentencing and introduce the ‘standard sentence’ regime.

Under the new scheme, a standard sentence will be created to represent the mid-point of seriousness for specific offences, such as murder and incest, and will be calculated at 40% of the maximum penalty. The standard sentence will act as a ‘guidepost’ to offence seriousness (in addition to the maximum penalty) and judges will be required to consider a standard sentence, as well as other relevant factors, in sentencing an offender. Judges will also need to provide reasons for departing from standard sentence lengths.

While the Sentencing Advisory Council has made it clear that a standard sentence scheme is not its preferred option, if such a regime is introduced, the Council has recommended that it only apply to offences for which there is evidence of significant problems that can be addressed by a standard sentence.

About the Author

John is partner of Armstrong Legal and head of the Criminal Law Division. The experience John possesses, being a high quality mix of defence and prosecution skills, together with his team at Armstrong Legal, mean you can be certain of accurate, dependable and practical advice on how your matter can dealt with.

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