Updated comment – 9 August 2017:
Liberty Victoria made a comprehensive submission in June 2017 (see below) 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?
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If enacted the Sentencing Amendment (Sentencing Standards) Bill 2017 would repeal the baseline sentencing regime in the Sentencing Act 1991 (Vic) and introduce a new “standard sentence” regime for twelve criminal offences.
Liberty Victoria agrees that the baseline sentencing regime should be repealed, but opposes the introduction of a standard sentence scheme.
We explained some of the history of the baseline sentencing regime and called for its repeal in our comprehensive submission to the Sentencing Advisory Council (‘SAC’) Reference on Sentencing Guidance, which can be found here.
Despite almost uniform criticism from the legal profession (including judicial officers, prosecutors and defence lawyers), the baseline sentencing regime was enacted through the Sentencing Amendment (Baseline Sentences) Act 2014 with bipartisan support.
The baseline regime was found to be incurably defective in DPP v Walters. That was because the legislation did not provide any mechanism for the achievement of the intended future median sentence. Further, the Act erroneously conflated the idea of a median sentence with a sentence of mid-range seriousness. It was held that there was no way to properly overcome those defects without the judiciary exceeding the limits of its interpretive power in order to try to “fill a gap” in the legislation. Further, the Court of Appeal observed that the Baseline Sentences Act was plainly contemplated to create a two-stage sentencing methodology in practice. That was notwithstanding the claim in the Explanatory Memorandum that “[t]he baseline sentence is not a starting point for sentencing judges nor does it require two-stage sentencing”.
In contrast, the proposed standard sentencing scheme is unlikely to be found to be incurably defective. The Bill attempts to address some of the above criticisms from the Court of Appeal and is modelled on the New South Wales model of standard non-parole periods, except it applies to head sentences. In short:
- The Bill applies to twelve offences;
- It sets a “standard sentence” for those offences, which is an offence where the objective (not subjective) circumstances place it in the middle of the range of seriousness for the given offence;
- The sentencing judge must have regard to the standard sentence and give reasons for sentencing above or below the standard sentence;
- It is expressly stated that the standard sentence regime does not interfere with the intuitive synthesis approach to sentencing; and
- The Bill sets mandatory minimum non-parole periods as a percentage of the head sentence for standard sentence offences, unless it is in the interests of justice to not impose the mandatory minimum. For example, if the total effective sentence for a standard sentence is less than 20 years’ imprisonment the non-parole period must be at least 60% of the total effective sentence unless that is not in the interests of justice.
While the Bill will most probably be found to be functional legislation, that does not mean that it is necessary or desirable. 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.
Further, the Bill creates a worrying precedent. The standard sentence mechanism can easily be ratcheted up over time to cover more offences, and to make exceptions more difficult to satisfy.
Why is the Bill needed? As noted in the SAC consultation paper for the sentencing guidance reference, the research clearly demonstrates that when informed of the facts relevant to sentencing, members of the public do not generally consider that the sentences imposed by judicial officers are too lenient. The limited exception to that is in relation to some sexual offences against children.
As noted in the SAC discussion paper, there are many mechanisms in Victoria that are designed to ensure adequacy and consistency in sentencing offenders.
The Court of Appeal can find that current sentencing practices are inadequate, and that judicial officers are no longer bound by them pursuant to s 5(2)(b) of the Sentencing Act 1991.
The Court of Appeal regularly provides authority and guidance for sentencing courts at the level of sentencing principle.
The Court of Appeal may give a guideline judgment.
In its report on sentencing guidance, the SAC’s primary recommendation was for the greater use of guideline judgments rather than the introduction of a standard sentence scheme. Liberty Victoria supports the greater use of guideline judgments.
To that end, Liberty Victoria supports the proposal in the Bill to enable the Attorney-General to commence proceedings for a guideline judgment. However, it remains unclear why the Government has not sought to make more use of guideline judgments before embarking down the path of seeking to introduce a standard sentence regime.
Utilising guideline judgments rather than introducing a standard sentence regime would preserve judicial independence and the separation of powers while providing an additional mechanism for ensuring that sentencing practices are commensurate with community expectations.