Liberty Victoria made a comprehensive submission in June 2017 on why the Sentencing Amendment (Sentencing Standards) Bill 2017 (Vic) is unnecessary and threatens to undermine the separation of powers. Unfortunately it appears that it will obtain bipartisan support.
We're very pleased that Sue Pennicuik MP from the Greens referred extensively to our submission in Hansard. To read Sue's contribution please clink here.
In short, while supporting the repeal of the fatally flawed baseline sentencing regime, Liberty Victoria strongly opposes the introduction of a NSW style standard non-parole period scheme. The problem with such a system is that it leads to a distortion of the judicial task and results in cases such as Muldrock v The Queen (2011) 244 CLR 120, where judicial officers fail to give appropriate weight to matters in mitigation (in that case intellectual disability) because of giving too much weight to the standard period.
While the bill is expressed in a manner that does not bind judges, and purports to preserve the 'intuitive synthesis', there is a real issue as to whether it will result in two-stage sentencing in practice and lead to an artificial compression in sentencing towards the standard sentence.
Liberty Victoria supports the primary recommendation of the Sentencing Advisory Council in its comprehensive report on Sentencing Guidance, which is to make greater use of guideline judgments. There has only ever been one guideline judgment in Victoria, on community correction orders.
It is important to remember that, when fully informed of the circumstances of a given offender and offence, jury studies demonstrate that usually judicial officers get it right. When mistakes are made, there are already mechanisms to correct errors, just as appeals against sentence by the DPP and guideline judgments.
Before we go down another flawed path as with the baseline sentencing debacle, why don't we preserve the independence of the judiciary and make greater use of guideline judgements as a mechanism that has been expressly designed to ensure greater consistency and public confidence in sentencing?