This year should bring interesting developments in the law of criminal sentencing in Victoria.
The story begins: baseline offences
In November 2014, the baseline sentencing provisions in the Sentencing Act 1991 (Vic) came into operation. The provisions applies only to specified offences, called ‘baseline offences’. These included murder and child sexual abuse offences.
For baseline offences, the Act specifies a baseline sentence; says that Parliament intends the baseline sentence will be the median sentence imposed for that baseline offence; and requires courts to impose sentences in a manner compatible with Parliament’s intention.
Next: a challenge
Baseline sentencing was tested in DPP v Walters  VSCA 303. Walters (a pseudonym) had pled guilty to offences of committing an indecent act with a child and incest, both ‘baseline sentencing’ offences. He was sentenced to 6 years and 8 months, with a non-parole period of 4 years. The DPP appealed on grounds of manifest inadequacy. The sentence, said the DPP, did not give effect to Parliament’s intention that 10 years should be the median sentence for offences of incest.
Priest JA gave the majority judgment for the Victorian Court of Appeal, dismissing the appeal. The baseline provisions, said the majority, were incapable of practical application. Parliament’s intention was that 10 years should be the median, said the majority, and the ‘median’ is the middle point in a set of numbers, but Parliament had not specified the future time at which the median should equal the baseline sentence. The median, said the majority, cannot be known until the end of the counting period over which it is to be calculated. And the sentencing judge has no way of knowing during the counting period what the median will be at the end, and therefore what particular sentence to impose for the particular case.
Further, said the majority, the provisions required the sentencing judge to compare the particular case with ‘a case for which the median sentence would be appropriate’, and then award a higher or lower sentence depending on whether the particular case was more or less serious. But the concept of ‘a case for which the median sentence would be appropriate’, said the majority, was unintelligible as a sentencing concept. It was fallacious to assume that the median sentence aligned with offences of medium seriousness. Sentencing law requires evaluation of the full range of factors concerning the offence and its circumstances, and the personal history and past history of the offender. The seriousness of the offence itself was just one of those factors.
A stirring dissent
Whelan JA dissented. He did not find the baseline sentencing provisions meaningless or incapable of practical application. Rather, he saw the baseline sentence as a new yardstick that must be taken into account, just like the existing yardstick of the maximum sentence.
Whelan JA worked through the provisions and applied them. He considered, like the sentencing judge, that the central charge of incest merited a sentence below the baseline. But not as far below the baseline as the sentencing judge had said. Applying the baseline and other applicable sentencing principles, Whelan JA would have increased the total sentence for the charges to 9 years and 4 months, with a non-parole period of 6 years.
After reading through the majority’s list of reasons why the baseline provisions are impractical and can’t be applied, it is refreshing to come to Whelan JA’s judgment and watch him simply apply them.
The Government’s reaction
The Government has accepted the majority’s decision. The Attorney-General has asked the Sentencing Advisory Council to advise, in the light of the decision, on the most effective way of providing sentencing guidance to courts in a way that promotes consistency of approach in sentencing, and promotes public confidence in the criminal justice system.
The Council’s report is due by mid April 2016; and then we will see how the Government responds.
A different approach
Once politicians start demonstrating their law and order credentials by specifying particular minimum, maximum or median sentences for particular crimes, the task never ends. There will always be another front-page crime. Another set of demands for a new label for something that was already a crime anyway (workplace bullying, spousal violence, one-punch assault), and for a new higher penalty. Then catch-up claims from the guardians of other crimes whose former high water mark penalties have been leapfrogged. The punitive voices will always be the loudest.
Compare Tasmania, where there is just one provision. Section 389(3) of the Criminal Code Act 1924 (Tas) sets the maximum penalty at 21 years for almost every crime, and then leaves it to the courts:
Subject to the provisions of the Sentencing Act 1997 or of any other statute, and except where otherwise expressly provided, the punishment for any crime shall be by imprisonment for 21 years, or by fine, or by both such punishments, and shall be such as the judge of the court of trial shall think fit in the circumstances of each particular case.
Simple and elegant.