Leave sentencing to the courts, warns Liberty Victoria

Liberty Victoria is concerned that the Attorney-General has elected to introduce a standard sentence scheme, contrary to the clear advice of the Sentencing Advisory Council’s report in response to the Terms of Reference provided in November 2015, Sentencing Guidance in Victoria. 

Liberty Victoria supports the Sentencing Advisory Council’s statement that sentencing guidance is best delivered by the Court of Appeal, and supports the proposed reforms to the Guideline Judgment regime.

Liberty Victoria notes that the Sentencing Advisory Council did not nominate the standard sentence scheme as its preferred model for sentencing guidance, and stated that if any scheme were to be introduced, it should be done in conjunction with amendments to the guideline judgment scheme and should only apply to a restricted set of offences using an evidence-based approach.

“The research demonstrates that, when fully informed, a majority of community members agree with the sentences being handed down by judicial officers”, said Liberty Victoria Vice-President and Barrister, Michael Stanton.

“The Court of Appeal has demonstrated over the past few years that it is more than capable of increasing sentencing practices where necessary – which it has done with glassing, burglary and some driving offences.” 

“It would be much better if the Government supported the Courts and explained to the public why there is the need for independent judicial officers to have discretion in sentencing, together with the fact that the evidence demonstrates that the Courts get it right”.

“Traditionally Victoria has had one of the lowest rates of incarceration and recidivism in Australia – why do we want to go down the American path of more prescriptive sentencing models given the potential for injustice and the great cost to the taxpayer?” 

The evidence from New South Wales does not suggest that the standard sentence scheme is operating justly or promoting a more consistent approach to sentencing. It risks inappropriately pressuring accused persons to plead guilty to a lesser charge to avoid facing a charge that carries a standard sentence. 

If the matter cannot resolve to a lesser charge, then a standard sentence scheme makes it makes it much more likely that accused persons will take matters to trial at great cost to the public, together with complainants, witnesses, and investigating police.

Liberty Victoria is gravely concerned about the inclusion of the offence of ‘culpable driving causing death’ in the list of nominated offences to receive a standard sentence. This offence involves a wide-range of offending behavior and two statutory forms of the offence, meaning that there is not one range of objective offence seriousness on which to fix a mid-range. 

The Government’s statement that courts will need to provide reasons for deviation from the standard sentence is likely to lead to a two-staged sentencing process, contrary to the established instinctive synthesis approach endorsed by the High Court of Australia and long applied in Victoria. 

Liberty Victoria’s submission to the SAC discussion paper is here.