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As an organisation Liberty Victoria is deeply concerned about the gradual erosion of judicial discretion in sentencing and the move towards mandatory and/or more prescriptive models of sentencing. Part of that concern stems from the need for the legislature to carefully protect the separation of powers so that a strong and independent judiciary is able to ensure that justice is done in the individual case.
The Attorney-General requested the Sentencing Advisory Council to advise him on the most effective legislative mechanism to provide sentencing guidance to the courts in a way that:
(1) Promotes consistency of approach in sentencing offenders; and
(2) Promotes public confidence in the criminal justice system.
Liberty Victoria takes issue with what must be inferred as the foundation for the reference, which is that the Victorian criminal justice system has failed to promote consistency in sentencing, and therefore the public has lost confidence in it.
The reforms potentially contemplated by the reference are too important for its foundation to rest on an incorrect premise that there is unacceptable inconsistency in sentencing. The dogmatic assertion from some in the media and the legislature that there are significant problems and therefore the system requires wide-ranging reform should be rejected.
Liberty Victoria submits that the foundation of the reference is flawed – there is no evidentiary basis that there is unacceptable inconsistency in Victorian sentencing, or that members of the public, when fully informed of relevant facts, consider that judicial officers impose inadequate sentences.
When individual sentences are inadequate the Crown can appeal. If there is a systemic issue and it appears that sentences are not meeting the intention of Parliament, then Parliament can increase the maximum penalty or the Crown can seek to have the Court of Appeal declare that current sentencing practices are inadequate, or seek a guideline judgment, the express purpose of which is to ensure consistency in sentencing and to promote public confidence. The executive has a wide range of options to ensure that there is consistency in sentencing and to ensure there is public confidence in the Victorian criminal justice system.
What undermines public confidence in the criminal justice system is the enactment of rushed and fatally flawed legislation such as the Baseline Sentences Act. In that context, the legislature needs to accept a measure of responsibility for perpetuating a sense of crisis in the Victorian criminal justice system. Parliament should be proactive and take a lead in the public arena with regard to explaining the need for there to be a strong and independent judiciary, and to assist the public to understand that we all have a significant interest a criminal justice system that gives due weight to the rehabilitation of offenders.
Read the full Liberty Victoria submission below.