DPP v Walters (a pseudonym) [2015] VSCA 303 (17 November 2015)

CRIMINAL LAW – Appeal – Sentence – Crown appeal – Baseline sentencing – Incest – Median sentence – Median as statistical product of series of numbers – Parliament’s intention that future median sentence be 10 years’ imprisonment – Statistical period not specified – Absence of legislative mechanism for achievement of intended median – Gap in legislation – Whether court can fill gap – Non-judicial function – Whether necessary implication – Provisions incapable of practical operation – No sentencing error – Appeal dismissed – Sentencing Act 1991 s 5A.

STATUTORY INTERPRETATION – Legislative intention – Sentencing – Baseline sentencing – Median sentence – Median as statistical product of series of numbers – Parliament’s intention that future median sentence be 10 years’ imprisonment – Statistical period not specified – Absence of legislative mechanism for achievement of intended median – Gap in legislation – Whether court can fill gap – Non-judicial function – Whether necessary implication – Function of explanatory note – Extrinsic materials – Whether statements in second reading speech can fill gap in legislation – Presumptions – Presumption against overturning common law doctrines – Provisions incapable of practical operation – Sentencing Act 1991 s 5A.

1 As so often in the work of an appellate court, this appeal turns on a question of statutory interpretation. And, as so often in the work of this Court, it is the provisions of the Sentencing Act 1991 which fall to be interpreted — in this case, provisions inserted in 2014 to introduce what is described as ‘baseline sentencing’.

2 Interpreting statutory provisions requires consideration of the legislative context and — where relevant — the legislative history. But, as the High Court has repeatedly emphasised, the task of statutory interpretation begins, and ends, with the words which Parliament has used.[2] For it is through the statutory text that the legislature expresses, and communicates, its intention.

3 As this Court said in The Treasurer of Victoria v Tabcorp Holdings Ltd,[3] there are

4 The duty to give primacy to the statutory text has two important corollaries. First, a court construing a statutory provision must strive to give meaning to every word of the provision,[7] and to the provision(s) as a whole.[8] Secondly, except in extremely limited circumstances, the court has no power to fill a gap in a statute or otherwise to read in words which the legislature has not used.[9] The limits of the judicial role require that courts ‘abstain from any course which might have the appearance of judicial legislation’.[10]

5 In the baseline sentencing provisions, Parliament’s stated intention (as applicable to the present case) is that, at some unspecified time in the future, the ‘median sentence’ for the offence of incest will be a sentence of 10 years’ imprisonment. Parliament has thus expressed its intention using the language of statistics. ‘Median’ is a statistical term used to identify the middle number in a series of numbers.

6 Thus expressed, the statement of intention is comprehensible, although there remains a lack of precision arising from the lack of any specified time in the future, or specified time period, by which the intended median is to be achieved. Crucially, however, the legislation is wholly silent as to the means by which a judge imposing sentence for incest is to do so ‘in a manner compatible with’ the intention to achieve the intended median sentence in the future.

1. Where legislation specifies an objective but is silent as to the means by which that objective is to be achieved, the interpreting court has no authority to fill the gap by reading in powers or duties which the legislature might have conferred or imposed for that purpose.[11]

2. Nothing said in a Minister’s Second Reading Speech can displace the meaning and effect of the statutory text, or be used to fill a gap in the text.[12]

3. An explanatory note to a legislative provision may be used to clarify the meaning of the provision but cannot be used to fill a gap in its substantive content.[13]

8 In the present case, the defect in the legislation is incurable. Parliament did not provide any mechanism for the achievement of the intended future median, and the Court has no authority to create one, as the Director of Public Prosecutions (‘the Director’) properly conceded. To do so would be to legislate, not to interpret. Acknowledging the absence of the necessary statutory language, the Director was constrained to rely on the aspirations of the Minister as stated in the second reading speech, but those statements could never have been a substitute for the missing statutory language.

9 For these reasons, as more fully explained below, the baseline sentencing provisions are incapable of being given any practical operation. The sentencing judge concluded that the provisions did not require him to impose a sentence different from that which he would otherwise have imposed. Although our reasons are different from his Honour’s, the conclusion was correct. The Director’s appeal against the sentence must therefore be rejected.

10 In view of our conclusion that the legislation is incurably defective, it is unnecessary to set out in any detail the reasons of the sentencing judge. We wish to acknowledge, however, the great care with which his Honour approached the task which confronted him. It was an unenviable task. These provisions are without precedent in Australian sentencing law and this was the first occasion on which a court had been called on to interpret them.

11 As will appear, much of his Honour’s analysis of the provisions was accepted by the Director on the appeal. His Honour rejected, however, the Director’s submission that the provisions required a ‘scaling-up’ of incest sentences by reference to the intended future median. As his Honour correctly stated, there is ‘no mechanism or guidance in the legislation’ as to how a process of scaling might be approached. More generally, as we have said, the legislative gap consists in the failure to provide any mechanism for the achievement of the intended future median. That is the legislative gap which it is beyond the judicial function to fill.

12 We wish also to acknowledge the considerable assistance received from the respective submissions of the Director (who appeared on his own behalf), Mr T Marsh, Chief Counsel of Victoria Legal Aid (for the respondent), and Ms L Taylor QC, representing the Criminal Bar Association, which appeared as amicus curiae.

13 On 15 July 2015, the respondent pleaded guilty in the Supreme Court to two charges of committing an indecent act with a child under 16 [14] (charges 1 and 2) and four charges of incest[15] (charges 3, 4, 5 and 6). On 30 July 2015, the sentencing judge imposed a total effective sentence of six years and eight months’ imprisonment, upon which he fixed a non-parole period of four years’ imprisonment, according to the following table:[16]

14 Since the foundational events for charge 6 occurred on 15 November 2014, it is a ‘baseline offence’.[17] Incest is an offence by virtue of s 44(1) of the Crimes Act 1958, which provides that a person ‘must not take part in an act of sexual penetration with a person whom he or she knows to be his or her child or other lineal descendant or his or her step-child’, and specifies a maximum penalty for the offence of 25 years’ imprisonment. By s 44(1A), the baseline sentence for the offence of incest under s 44(1) ‘is 10 years if the court is satisfied beyond reasonable doubt that the victim was, at the time of the offence, under the age of 18’.

15 The Director has appealed against the sentence on the ground of manifest inadequacy. The notice of appeal contends that the inadequacy was the result of two errors of law in the judge’s application of the baseline provisions, namely, that he:

(a) failed to treat the baseline sentence ‘as a guidepost’ in the imposition of sentence on charge 6; and

16 As already indicated, the statutory provisions are incapable of implementation. It is therefore unnecessary to consider either of the Director’s complaints about the way in which the judge endeavoured to apply the provisions. There being no other challenge to the sentence imposed, the appeal must be dismissed.

17 The statutory regime for sentencing for a baseline offence was created by the Sentencing Amendment (Baseline Sentences) Act 2014. The ‘baseline’ provisions thus added to the Sentencing Act 1991 apply to any ‘baseline offence’ committed on or after 2 November 2014.

18 By virtue of s 3(1), baseline offence ‘means an offence for which an Act specifies a baseline sentence’; and baseline sentence, ’in relation to an offence, means the period specified by an Act as the baseline sentence for the offence’. The new s 5(2)(ab) requires the sentencing court to have regard to ‘the baseline sentence for the offence’.

20 The key provisions are s 5A(1)(b), which declares Parliament’s intention (‘the statement of intention’), and s 5A(3)(a), which requires the court when sentencing an offender for a baseline offence to ‘do so in a manner that is compatible with Parliament’s intention’ (‘the compatibility directive’). We deal first with the statement of intention.

21 Parliament’s intention is expressly stated in s 5A(1)(b), as follows. Where (as here) the offence for which sentence is to be imposed is a baseline offence, then

22 No definition of ‘median’ is provided. Although the word has other technical meanings, in both anatomy and geometry,[19] it is common ground that when used in these provisions the word ‘median’ is to be given the technical meaning attributed to it in the discipline of statistics.[20]

23 The Australian Bureau of Statistics has published the following explanation of the median as a statistical tool:

24 The median is thus the middle point of a set of numbers, in which half of the numbers are above the median and half are below. The median of a numerical set may be contrasted with the mean (or average), which is the total of a set of numbers divided by the number of items in the set. Parliament’s intention as expressed in s 5A(1)(b) must therefore be taken to be that, for a particular baseline offence, the period specified as the baseline sentence for that offence is to become (at some unstated future time) the numerical value separating the higher half of sentences for that offence from the lower half.

25 Over the last decade, sentencing courts have become increasingly familiar with the concept of a median as a way of presenting statistics. Since its establishment in 2004, the Sentencing Advisory Council has at regular intervals published sets of statistics — known as ‘Sentencing Snapshots’ — for the purpose of illustrating sentencing trends in the higher courts of Victoria. Each such Snapshot tabulates sentencing outcomes for a particular offence over a five-year period. By collecting together all of the sentences imposed for that offence over that period, the Council is able to identify the median sentence in the series.

26 Relevantly for present purposes, the Council has published successive Sentencing Snapshots for the offence of incest in February 2008, June 2010, August 2012 and, most recently, in August 2014. A more limited set of statistics was published in August 2015. The following extract from the 2014 Snapshot illustrates how the concept of the median is used by the Council:

27 The median sentence, then, is the statistical end-product of the series of sentences for the relevant offence over the specified period. The number of sentences included in any given series will, of course, vary according to the number of persons sentenced for that offence in the years making up the selected period and the number of incest offences committed by individual offenders. When a person is sentenced on multiple incest charges, the sentence on each charge becomes part of the series.

28 A comparison of the successive Snapshots [23] for the offence of incest reveals significant variations, both in the number of sentences making up the series and in the median value itself, as follows:

29 The nature of a median — as a statistical product — means that the median sentence for an offence is unknown, and unknowable, until the end of the relevant counting period. Thus, at any given time, a sentencing judge imposing sentence for incest has no way of knowing what the median will be at the end of the counting period. Nor, more particularly, does the judge know whether the sentence about to be imposed will affect the median figure which is eventually arrived at. That sentence will, of course, be part of the statistical series but — depending on the number and distribution of sentences in the period — may have no effect on the median.

30 Importantly — as both the Criminal Bar Association and the respondent pointed out — the median sentence is not a measure of offence seriousness, and has never been so regarded for the purposes of sentencing. In other words, the median does not necessarily fall at a known point on the spectrum of culpability; where it falls will be determined only by the number of sentences in the series. As has already been explained, the median is an accidental or contingent statistic, wholly dependent on the particular composition of the statistical series for the specified period. Thus, the median sentence will be higher, or lower, depending on whether the preponderance of offending in the particular period was more or less serious.

31 As the Director conceded, it would therefore be a misconception to view the median sentence as representing the sentence which would be imposed for an offence of ‘mid-range seriousness’. It follows that it would also be wrong to consider that the median can be used as a guidepost to sentence an offender for a mid-range culpability offence. This reveals why a legislative specification of a median is so different from the setting of a new maximum. By contrast with the maximum, which is reserved for the worst instance of offending for a particular offence, the median is not reserved for offending of mid-range seriousness.

32 The baseline offence here being incest, Parliament’s intention as expressed in general terms in s 5A(1)(b) can be reformulated in specific terms applicable to the present case, as follows:

33 This may be contrasted with a statement of intention with respect to the maximum penalty for an offence — for example, manslaughter — to the effect that

That was the intention which the legislature expressed through the 1997 amendment of s 5 of the Crimes Act 1958, which changed the maximum penalty for manslaughter from 15 to 20 years’ imprisonment. In that case, Parliament’s intention had to be — and was able to be — effectuated immediately. That is, from the date of the amendment, 20 years became the maximum penalty for the offence, operative immediately as a sentencing ‘yardstick’.^[24]

34 A statement of intention with respect to a median sentence is quite different. For the reasons already given, Parliament cannot declare something to be the median. The median does not exist — and will not exist — except as a statistical product, calculated at some time in the future, once the period chosen for the collection of statistics has ended.

35 This being so, the phrase ‘to be the median sentence’ in para 5A(1)(b) must be taken to mean ‘to become the median sentence’ at some future time. As already explained, that will occur when a sufficient series of sentencing decisions has been assembled of which the median is 10 years.

36 That is how the sentencing judge interpreted the statement of intention. In his Honour’s view, the Court was required

His Honour considered that this interpretation was consistent with the literal meaning of the words of the section, and with

38 On the appeal, as at first instance, the Director accepted that the judge had correctly interpreted the legislative direction that 10 years is ‘to be the median sentence’. More particularly, the Director’s submissions in this Court accepted — correctly, in our view — that the baseline provisions gave no indication of the period over which the intention with respect to the median was to be realised. Parliament’s intention was therefore to be understood as being that, at some indefinite time in the future, there will have been created a statistical series of sentences for incest of which the median will by then be 10 years.

40 As noted earlier, the sentencing judge must, when imposing sentence for a baseline offence, do so ‘in a manner compatible with Parliament’s intention’ as stated in s 5A(1)(b). Several unusual features may be noted about this legislative command.

41 First, while it is not unusual for an Act to require its provisions to be interpreted consistently with stated purposes or objects,[28] it is most unusual for Parliament to include an explicit statement of its own intention, and to give that statement operative (as distinct from interpretive) force.[29] Secondly, the imposition of an unqualified statutory duty upon a court to act ‘compatibly with’ such a statement is without precedent in Victorian law.[30]

42 Thirdly, and most significantly, there is no precedent in Australian sentencing law — or, so far as we are aware, in the sentencing law of any comparable jurisdiction — for a sentencing judge being obliged, in imposing sentence on a particular offender for particular offending, to do so by reference to the intended statistical product of a series of sentences, being a series of indefinite length and indeterminate content.

43 It may be that a judge could be said to be acting ‘compatibly with’ the statement of intention simply by imposing a sentence which would become part of the statistical series from which the intended median will eventually emerge. The Director conceded that it would be impossible for a judge to anticipate how the median might change in the future, once other judges had passed sentences for incest which were then added to the statistical series. That concession was plainly correct.

44 What, then, is to be made of the compatibility directive? The task of the Court is to seek to discern from the provisions how the legislature intended that the individual judge would comply with the statutory duty thus imposed. But the provisions are silent on this critical matter. They provide no guidance of any kind as to what a sentencing judge must do in order to impose sentence ‘in a manner compatible with’ the statement of intention. The Director frankly conceded that this was so. In the same way, the provisions give no content to the new obligation in s 5(2)(ab) to ‘have regard to’ the baseline sentence.

45 The silence of the provisions on this matter is especially significant because the combination of s 5A(2) and s 5A(3)(b) gives primacy to the intention that the period specified as the baseline sentence is to be the median sentence for the relevant offence. The requirement in s 5A(2) — that sentencing practices must give effect to that intention — is reinforced by the direction in s 5A(3)(b) to disregard other governing principles of sentencing in pt 2 of the Act ‘if not to do so would be incompatible’ with the statement of intention. (Those principles include, for example, that regard must be paid to the nature and gravity of the offence (s 5(2)(c)); the offender’s culpability and degree of responsibility for the offence (s 5(2)(d); the impact of the offence on any victim of the offence (s 5(2)(daa)); whether the offender pleaded guilty to the offence (s 5(2))(e)); and the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances (s 5(2)(g)).)

46 The statement of what is to be the baseline sentence is not simply another ‘yardstick’ for sentencing, nor does it purport to be. It is not a sentencing principle to be taken into account as one amongst many orthodox sentencing principles. Instead, the statement of intention in s 5A(1)(b) (reinforced by s 5A(2) and s 5A(3)(b)) elevates the need to sentence compatibly with the intended future median to be the primary or dominant sentencing principle. In those circumstances, the need for the Parliament to specify a coherent and practical mechanism was imperative, and the absence of a legislative mechanism for achievement of the intended median is all the more significant.

47 Reference should be made here to the Note to s 5A(3) (‘the Note’). Although the full text of relevant parts of s 5A is set out above, it is convenient to set out the text of the Note once more:[31]

49 When dealing with the status of the Note, the sentencing judge correctly stated as follows:[32]

50 On appeal, the Director eschewed reliance on the Note as giving any content to the judge’s obligation to sentence ‘compatibly with’ the statement of intention. He was, with respect, quite correct to do so. The relevant rules of statutory interpretation are clear. Although a note such as this forms part of the Act,[33] it is subordinate to the substantive provisions, of which it is merely explanatory or illustrative.

51 In some circumstances, a note such as this may be used as an aid to the construction of the substantive provision to which it relates. Thus, if two interpretations are open on the text of the substantive provision, a note might assist in determining which of the two interpretations was to be preferred. As observed earlier, however, if there is conflict between the substantive provision and the note, the note must give way.[34] And, if the substantive provision fails to deal with a particular matter, nothing in the note can make good the deficiency.

52 In this case, two separate obstacles stood in the way of placing any reliance on the Note. First, it purported to ‘explain’ a methodology which s 5A(3) itself did not create. Secondly, the methodology in the Note purported to treat the median sentence as a starting-point, whereas Parliament’s stated intention was that it be an end-point.

53 But even if the Note could have been relied on, it would not have provided any meaningful guidance to a sentencing judge. As already mentioned, the Note appears to contemplate that the sentencing court would compare the case before it ‘with a case for which the median sentence would be appropriate’. As the Director properly conceded, this is a concept wholly unknown to sentencing law. No sentencing judge would ever characterise the case before the court as one ‘for which the median sentence would be appropriate’. Put simply, the nature of the median — as the contingent by-product of a set of numbers — means that to speak of the median sentence as being ‘appropriate’ for particular criminal conduct is unintelligible in this sphere of discourse.

54 Having disavowed reliance on the Note, the Director was constrained to concede that there was ‘no mechanism set out in s 5A in respect of ... how the mechanics of [this scheme] are going to work’. He also conceded — correctly, in our view — that it was impermissible for a court to construct a mechanism which, in the court’s view, might serve to effect the statutory purpose.

55 The Director maintained, nevertheless, that the 10-year period specified as the baseline sentence for incest was intended to become ‘the guide post or yardstick’ which the sentencing judge should ‘steer by’. It followed, so the Director submitted, that the sentencing judge should have treated the 10-year period as a starting-point. Put another way, the judge was bound to impose a sentence which bore some proportionate relationship with the 10-year baseline, that being the sentence to be imposed for ‘a median case’.

56 These submissions rested, as the Director readily acknowledged, not on the statutory provisions themselves but on what the Attorney-General had said in the second reading speech for the amending Bill, as follows:[35]

57 As the Director properly conceded, however, extrinsic materials cannot be relied on to fill a gap in the statute itself. Parliament’s intention must be discerned from the words actually used in the legislation. As the High Court observed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:[36]

58 Contrary to the Minister’s statement to Parliament, the legislation does not

As we have explained, the statutory provisions say no such thing. Nor could any such requirement be said to arise as a matter of necessary implication.^[37] In any event, for the reasons we give below, there is a fallacy in assuming that a court can identify ‘the sort of case’ that should incur a mid-point sentence given that, as the Director conceded, the statistical mid-point does not necessarily reflect mid-level seriousness of offending.

59 In summary, then, while it is possible to give a meaning to the statement of intention, it is impossible to give meaningful content to the obligation to impose sentences ‘compatibly with’ that intention. Stating that Parliament intends a certain statistical outcome to be achieved, at some indefinite time in the future, gives no guidance to a sentencing judge as to how to impose a sentence for a particular offence.

60 The baseline provisions are therefore incapable of being given any practical operation. As we have explained, that is the consequence of the legislature having expressed its intention not by reference to a starting-point taken from sentencing law, but by reference to an end-point taken from the field of statistics.[38]

61 It should be emphasised that this is no mere technicality. What these reasons have demonstrated is that the problem is a fundamental one. Parliament’s stated intention cannot be given effect to because the provisions contain no mechanism for its implementation and it is beyond the function of the Court to devise one.

62 As has also been made clear, this conclusion follows from the application of established rules of interpretation. Whenever Parliament legislates, it does so in the knowledge that the task of interpretation will be governed by such rules. These are not obscure rules known only to technical specialists. On the contrary, as the High Court has emphasised, statutory interpretation is ‘an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws’.[39] It is ‘by the application of rules of interpretation accepted by all arms of government’ that the court determines how a statute is to be construed.[40]

63 One important rule of interpretation to which reference has not yet been made is the presumption against the alteration of common law doctrines. The classic statement of the presumption was that of O’Connor J in Potter v Minahan,[41] where his Honour said (quoting from Maxwell on Statutes):

64 As Gleeson CJ said in Electrolux Home Products Pty Ltd v Australian Workers’ Union,[43] in terms often quoted with approval,[44] this principle:

65 The sentencing method propounded by the Attorney-General — had it been enacted — would have ‘overthrown fundamental principles’ of sentencing law. As appears from the second reading speech, the Attorney-General envisaged that the sentencing judge would take the baseline sentence for the relevant offence as the starting point for sentencing. (As we have already pointed out, by contrast with the second reading speech the statutory provisions themselves treat the baseline sentence as the end-point, not a starting-point). The judge would then

66 The Minister evidently contemplated that the judge would decide whether the case before the court was:

(a) similar to ‘the sorts of instances of the offence that have incurred a median sentence’ (‘median instances’), in which case the new median (the baseline sentence) must be imposed;

(b) ‘deserving of’ a greater sentence than the median instances, in which case the sentence to be imposed must be greater than the baseline sentence (while bearing some proportionate relationship to it); or

(c) ‘deserving of’ a lesser sentence than the median instances, in which case the sentence imposed must be less than the baseline sentence (while bearing some proportionate relationship to it).

67 Such an approach to sentencing — had it been enacted — would have displaced established common law sentencing principles:

(a) by requiring a process of ‘two-stage sentencing’, that is, by requiring the judge to start with a particular sentence (the baseline) and then, by a process of ‘increments and decrements’ referable to aggravating and mitigating factors, arrive at the sentence to be imposed;[46] and

(b) by requiring the judge to make comparisons between cases on the basis of ‘numerical or mathematical equivalence’.[47]

The Minister’s approach would also have seriously distorted the application of the principle of proportionality, and the related principle of totality, which are fundamental aspects of just punishment.^[48]

68 Thus, had Parliament sought to enact provisions establishing such a methodology, the intention to displace or subvert these fundamental common law principles would need to have been expressed with unambiguous clarity.[49] Finally, it must be pointed out that, even if the legislation had included provisions giving effect to the Attorney-General’s aspirations, the putative methodology would still have been unworkable. The point may be explained simply, as follows.

69 As we pointed out earlier, the notion of ‘a case for which the median sentence would be appropriate’ is unintelligible as a sentencing concept. Similar difficulties attach to the Attorney-General’s suggestion that a sentencing judge would impose a sentence above, or below, the new median (the baseline sentence) by comparing the case before the court with ‘the sorts of instances of the offence that have incurred a median sentence’ in the past. This appears to reflect the assumption, shown to be erroneous above, that the median sentence is reserved for offending of mid-level seriousness.

70 As appears from the table set out above, the statistics collected by the Sentencing Advisory Council showed that the median sentence for incest over the most recent period reviewed (2009–10 to 2013–14) was five years. The Council’s further work revealed that a sentence of five years had been imposed on 89 incest charges, committed by 36 offenders, over that period. Of those 36 cases, sentencing reasons had been obtained for 13.

71 The Director prepared for the judge a table summarising the features of the offending, and of the offender, in each of those 13 cases. We have reviewed those 13 cases, and the sentencing reasons provided. Unsurprisingly, the circumstances of the offending and the personal histories of the offenders are so diverse and various that the only common features of significance are that the offender was sentenced on one or more charges of incest and that, on at least one of those charges, the offender was sentenced to five years’ imprisonment. The latter is, of course, the feature of ‘numerical equivalence’ to which we have referred.

72 The fallacy of the suggested approach is that it begins with the statistical end-point — the median calculated at the end of the five-year period — and then looks back at the cases in which the median sentence was imposed during that period. The assumption appears to be that an examination of those ‘numerically equivalent’ cases will reveal some common characteristics which can be said to define ‘the median case’, to which other cases can then be compared.

73 That assumption rests on a fundamental misapprehension. It is a tenet of sentencing law that the sentence imposed in a particular case reflects the judge’s evaluation of the full range of factors bearing on the nature and circumstances of the offending and the personal circumstances and past history of the offender. The mere fact that two offenders received the same sentence for the same offence provides little or no information as to whether the cases are in any way comparable.

74 As the High Court has pointed out, what matters is not that the same sentence was imposed but why, in each case, the particular sentence was arrived at.[50] In the case of incest, for example, a sentence of five years’ imprisonment might have been imposed on a first offender whose offending was extremely serious, and the same sentence might have been imposed — for quite different reasons — on a repeat offender for offending which was much less serious.

75 Examination of the sentencing reasons in the 13 cases bears this out. Put simply, there is little or no commonality between the cases. As would be expected, there is enormous variation from one case to the next, both in the nature and

circumstances of the offending and in the personal circumstances of the offender. It would have been a very burdensome task for the sentencing judge to have reviewed all of those sets of reasons and — for the reasons given — he would have derived no relevant assistance from doing so.

76 Of course, as the Director pointed out, sentencing decisions are informed by reference to comparable cases. They stand as ‘a yardstick against which to examine a proposed sentence’.[51] But, for a previous sentencing decision to be of any assistance, it will ordinarily need to involve offending of comparable seriousness.[52] And, as we have pointed out, the fact that the sentence imposed in a particular case turned out, at the end of the statistical series, to be the median sentence for the period is no indication of the seriousness of the offending in that case.

78 On 2 November 2014 significant new provisions of the Sentencing Act 1991 (‘the Act’) came into operation.

80 Section 5(2) of the Act was amended so as to read (with the amendment underlined):

81 Incest where the victim is below 18 years is a baseline offence. The baseline sentence is 10 years.[53]

82 On 12 June 2015 the respondent pleaded guilty to an indictment containing six charges, four of which were incest. The victim was under 18 years. The new provisions applied to one of the four incest charges (charge 6). In relation to that charge the sentencing judge stated that the new provisions required him to:

83 The sentencing judge, however, imposed a sentence on charge 6 which was unaffected by the new provisions. This was because he concluded that the new provisions did not affect sentences in cases which are properly characterised as ‘falling below the median’.[55] The appellant contends this was an error.

84 Before turning to the judge’s reasons and the matters raised on the appeal, it is necessary to describe what the concept of a ‘median’ is in the context of sentencing, to address some of the relevant principles of sentencing law which are potentially altered by the new provisions, and to address some authorities on other legislative provisions which have altered or affected those principles.

The role of the ‘median’ in sentencing prior to the baseline amendments

85 The median is the middle number in a given sequence of numbers. Half the numbers in the set are below the median and half are above it. For some years sentencing statistics compiled by the Sentencing Advisory Council have included calculations of the median sentence. In the last five years this Court has referred to the median when addressing sentence appeals on approximately 60 occasions.[56] In many of these cases the Court has emphasised the limitations upon the role that statistics can usefully play in the determination of sentences.[57] Judges of the High Court have observed that the statistical analysis of sentences is ‘fraught with danger’.[58] Very recently, judges of the High Court have observed that the value of sentencing statistics varies between offences, and that sometimes no meaningful pattern can be discerned because the number of sentences in the applicable set is too small.[59]

87 Similar concerns have been expressed by this Court on many other occasions.[61]

88 According to the approach which has been adopted in this Court, consideration of the median is not irrelevant. It can be of assistance, but the assistance is necessarily limited. It may be a ‘rough cross check’.[62] A clustering of sentences around a low median may demonstrate that current sentencing practice has departed from the proper parameters set by the maximum penalty.[63]

89 The legislation’s use of the concept of a ‘median’ is the use of a concept well-known to sentencing courts. But it is a concept which has been used by the courts with care and with a recognition of its significant limitations.

90 The legislation in issue in this appeal seeks to elevate the concept of ‘the median sentence’ to a role very significantly different to that which the concept has previously played.

91 The process by which sentencing is undertaken in Victoria is referred to as ‘instinctive synthesis’. In Markarian v The Queen (‘Markarian’) McHugh J described it as follows:

92 The process of ‘instinctive synthesis’ is to be contrasted with what is referred to as ‘two-tier sentencing’. McHugh J described this as being where the judge first fixes on a sentence determined by ‘the objective circumstances’ of the case and then increases or reduces the hypothetical sentence incrementally by reference to other factors.[65]

93 There may be much to be said for Kirby J’s view, expressed in Markarian, that much of the debate between those who favour instinctive synthesis and those who favour a ‘two-stage approach’ is a matter of semantics.[66] But after Markarian it is clear that instinctive synthesis is the correct approach. This does not mean that the sentencer is precluded from proceeding sequentially or from making specific numerical or proportional allowances, or from quantifying those allowances.[67] Nor does it mean that the sentencing conclusion is to be devoid of a transparent path of reasoning.[68]

94 One consequence of the instinctive synthesis approach to sentencing is that appellate courts cannot proscribe outcomes by reference to particular identified considerations. To do so erroneously distorts the sentencing process.[69]

95 Appellate courts cannot proscribe outcomes in this manner, but the legislature can.[70] McHugh J in Markarian explained that legislative provisions are amongst the matters which ‘confine the scope’ in which instinctive synthesis operates.[71]

96 In the field of sentencing, inconsistency itself constitutes a form of injustice. Sentencing must be ‘systematically fair’. In Wong v The Queen (‘Wong’) Gleeson CJ said:

97 Systematic fairness and reasonable consistency require both that like cases should be treated alike and that different cases should be treated differently.[73] But systematic fairness is not synonymous with numerical equivalence and is incapable of mathematical expression.[74]

98 The requirement for systematic fairness and consistency interacts with the role of the maximum penalty for an offence.

99 The maximum penalty operates as a legislative yardstick requiring a notional comparison between the worst possible case and the case before the court at the time.[75] In this context this Court observed in Hogarth v The Queen (‘Hogarth’) that while the maximum is reserved for the worst example of an offence likely to be encountered ‘it is to be expected that there would be a spread of cases across the statistical range’.[76] The Court quoted what Vincent J had said in Mallinder v The Queen:

100 One reason why a ‘two-tiered’ approach to sentencing has been rejected is because it is seen as irreconcilable with an important sentencing principle, proportionality.

101 The principle of proportionality requires the judge to make a judgment concerning the relationship of the penalty to the particular facts.[78] In Markarian McHugh J said:

102 But even the principle of proportionality can be altered or affected by statute. In Magaming v The Queen (‘Magaming’) the High Court considered the mandatory minimum sentences required to be imposed on certain ‘people smuggling’ offences by the Migration Act 1958 (Cth).[80] French CJ, Hayne, Crennan, Kiefel and Bell JJ referred to the principle of proportionality and then said:

New South Wales standard non-parole periods and Commonwealth mandatory minimum sentences

104 Legislative provisions which affect or alter sentencing principles have been considered by the High Court in decisions concerning legislated standard non-parole periods in New South Wales and mandatory minimum sentences proscribed for ‘people smuggling’ offences in the Migration Act. McHugh J referred to the New South Wales provisions in Markarian when he said:

106 Section 54B required the standard non-parole period to be taken into account and required that reasons be given for either a longer or a shorter period.

107 The High Court considered these provisions in Muldrock v The Queen (‘Muldrock’).[84] The Court (constituted by French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) said:

108 The High Court observed that the provisions would have the effect of generally increasing the length of non-parole periods and then said:

109 In Magaming the High Court considered an argument that the minimum mandatory period of imprisonment required for ‘people smuggling’ offences was unconstitutional. Addressing the effect of the proscribed minimum terms, French CJ, Hayne, Crennan, Kiefel and Bell JJ said:

110 Finally, reference should be made to this Court’s treatment of the Commonwealth mandatory minimum terms of imprisonment in DPP v Al Haidari (‘Al Haidari’).[88] Harper JA, with whom Weinberg and Priest JJA agreed, said that the Commonwealth mandatory minimum terms did not oust either the sentencing principles of the common law or the principles of sentencing required generally by statute, but that it ‘necessarily modifies both’.[89] He went on:

The sentencing judge’s analysis and application of the baseline provisions

112 The sentencing judge set out the key provisions of the legislation and summarised them by observing, as I have already said, that they required him to have regard to the baseline sentence of 10 years, to engage in a sentencing practice which gives effect to Parliament’s intention that 10 years’ imprisonment be the median sentence, and to sentence in a manner compatible with that intention.

113 The sentencing judge observed that these provisions were highly unusual. Instead of setting out principles, rules and process, the Court was required to sentence in a manner consistent with the production of an overall statistical result. This result is dependent on the sentences imposed in other unrelated cases, not simply by way of a comparison of facts and circumstances in those other cases in the traditional manner. He observed that there was no precedent in Victoria ‘or elsewhere’ for provisions of this kind and said that he could do no more than seek to adopt an approach which ‘most closely meets the requirements of the law’.[93]

114 He then addressed the question of Parliament’s intention and whether the intention was that the Court should maintain the statutory median for sentences imposed under the new provisions at any given point in time, or whether what was required was to treat the relevant ‘series’ as being all sentences to which the provisions apply. The sentencing judge described this series as ‘an infinite set containing known sentences (of which this will be the first) and future, as yet undetermined, sentences’.[94] The sentencing judge accepted that the second was the correct interpretation. In that respect he relied upon: s 5A(2) of the Act which required that sentencing practices give effect to Parliament’s intention, thereby importing the notion of multiple sentences over time; and upon s 5A(3) which required the sentencing judge to sentence in a manner ‘compatible’ with Parliament’s intention as opposed to a requirement that each individual sentence maintain the specified median. He also referred to the Attorney-General’s second reading speech.

116 The sentencing judge then turned to the task to be undertaken in an individual case. He referred to the systematic compilation of statistics and to the fact that from such statistics a median can be identified. The sentencing judge continued:

117 The sentencing judge turned to the role of the historic median in this process. He rejected a mechanical process of transposition, but he accepted that historical sentencing information was relevant. In this respect his conclusion was as follows:

118 It is important to pause here and to emphasise the distinction the judge drew between the historic median, which the statistics could identify, and the legislation’s projected median, which inevitably involves assumption, prediction and speculation. The historic median is relevant not because it can be transposed on to the present case and future cases but because it informs the task of assessing the future as yet undetermined cohort of sentences in relation to which Parliament has expressed its intention.

119 The sentencing judge addressed the statistics which have been compiled and reports which have been published by the Sentencing Advisory Council so as to identify the historic median in relation to the offences to which the baseline provisions apply. As to the use which could be made of that data, the sentencing judge said:

120 The sentencing judge referred to very detailed analyses which the Crown had undertaken whereby characteristics of incest cases which had historically attracted sentences above, at and below the median were identified. The sentencing judge said that the identification of patterns of that kind was an onerous task that might not always be possible. He observed, however, that in the particular case before him, whilst counsel for the offender had not accepted the Crown’s approach to the interpretation of the provisions, defence counsel did accept the analysis which the Crown had produced of the historic incest cases above, at and below the historic median.

121 The sentencing judge dealt with the Note at the end of s 5A(3). He observed that a plain reading of the Note suggested a two-stage sentencing process.

123 The sentencing judge said that the Director of Public Prosecutions (the Director) addressed these problems by submitting that the baseline sentence was a ‘guidepost’ in a general way. The sentencing judge observed that the Director’s approach was to characterise cases above, at and below the historic median in order to assist in giving effect to the provisions of the Act rather than ‘seeking to develop a picture of the features of a case for which the median sentence is appropriate’,[100] as is envisaged by the Note.

124 The sentencing judge referred to the limited role which a Note can play in the interpretation of legislation and concluded that he did not propose to follow the process described in the Note.

125 Thus, the sentencing judge found that the Note did not assist. Relevantly, meaningful content could not be given to the key concept in the Note, being ‘a case for which the median sentence would be appropriate’. The Director did not seek to have the judge adopt some version of the methodology in the Note, but rather contended that the baseline operated as a ‘guidepost’ in a general way.

126 The sentencing judge then turned to the question of whether the baseline provisions were consistent with the instinctive synthesis approach. It seems to me that he concluded that they were. The sentencing judge said:

127 Thus, the sentencing judge accepted the Director’s ‘guidepost’ approach, whereby the baseline sentence operates within the process of instinctive synthesis in a manner similar to the way the maximum penalty operates. They are each factors which ‘guide’ the court in reaching the eventual outcome. Other factors continue to play a role, but they must be disregarded to the extent their consideration would be inconsistent with Parliament’s legislated intention in relation to the baseline sentence.

128 The sentencing judge eventually concluded that it was necessary to determine whether a sentence at, above or below ‘the median’ was required in the particular case. This is where the judge began to err, according to the appellant. The judge addressed the question of whether that determination was a question of sentencing fact to which the principles in R v Storey [102] and R v Olbrich[103] would apply. He concluded that it was not.

129 The sentencing judge then turned to an issue which he described as ‘scaling’. He observed that, as a matter of mathematics, so long as half of all sentences were at or above the median and half were at or below it the distribution of sentences above and below it would not affect the median. Thus, as defence counsel had argued, a sentence of one year or nine years for a case below the median would not change the median.

130 The judge referred to the fact that s 5(2)(ab) imposed a requirement that the court must have regard to the baseline sentence in all cases, not just those at or above the median, and he also observed that under the provisions the baseline sentence could not be disregarded because a case was one where a sentence below the median was appropriate.

131 The sentencing judge nevertheless accepted defence counsel’s submission that once a case was determined to be one where the appropriate sentence was below the median any sentence below that point was ‘compatible’ with Parliament’s legislated intention. The sentencing judge did so on the basis that primacy was to be given to the text of the provisions, and the legislation expressly preserved the continued application of existing legislative provisions and said nothing about the distribution of sentences beyond the specification of a median.

132 The sentencing judge recognised that the adoption of this approach would create an ‘artificial sentencing pattern’ in which there would be a significant gap between median sentences and sentences in cases below the median.[104] He suggested that this ‘unusual result’ was not absurd and was similar to the effect that mandatory minimum sentences could have.

133 The sentencing judge then determined that this was a case which, by reference to the Crown’s analysis of historic cases, warranted a sentence below the median. On the appeal there is no contest in relation to that particular conclusion.

134 The sentencing judge determined that the new provisions did not affect the sentencing principles to be applied ‘with respect to sentences for cases falling below the median’,[105] and that he would ‘not inflate the sentence on count 6 beyond what would normally be appropriate in accordance with usual sentencing practice for this offence’.[106]

136 The written submissions of the parties addressed issues raised by the ground of appeal, namely whether the sentencing judge had been in error in his conclusion that the sentence to be imposed on charge 6 was unaffected by the baseline legislation.

137 In the appellant’s written case it was submitted that the sentencing judge had erroneously engaged in a ‘two-stage sentencing process’ by first making a specific determination as to where the present case sat vis-à-vis a notional median sentence case, and then, having determined that it was below the notional median case, sentencing without regard to the baseline sentence (s 5(2)(ab)), the required sentencing practice (s 5A(2)), and the requirement to sentence in a manner compatible with Parliament’s specified intention (s 5A(3)(a)). This approach was said to be inconsistent with the intuitive synthesis approach, which the legislation was said to preserve. What should have been done was to treat the baseline as a new ‘guidepost’. No intermediate determination was required. No mathematical analysis or calculation was required. It was submitted that this approach was consistent with the extrinsic materials. The baseline would operate as a ‘guidepost’ in the same way as a maximum operated. It was submitted that the sentencing judge’s approach failed to give effect to the clear legislative requirement that the baseline sentence was to be taken into account in all sentences for baseline offences, was contrary to the ‘common law view’ that there should be a spread of sentences across the statistical range, and produces the anomalous result (which the sentencing judge had expressly acknowledged) of creating ‘an artificial void’ between cases falling below the median and those at the median. It was submitted that the sentence imposed on charge 6 was manifestly inadequate as, whilst that offence might call for a sentence below the baseline, absent the sentencing judge’s error it required a sentence closer to the baseline than that imposed.

138 The written cases for the respondent, and for the amicus curiae, supported the correctness of the sentencing judge’s analysis and conclusions.

139 In the course of argument the submissions put on behalf of the amicus curiae broadened. In oral submissions it was emphasised that the concept of a ‘median’ had to be ‘de-coupled’ from the concept of offending of medium gravity or medium culpability. It was submitted that the legislation provided no ‘mechanism’ as to how the baseline is to be taken into account or given effect to, and as to how a sentencing judge in a particular case is to sentence compatibly with it. The matter was said to be ‘imponderable’ and that the legislation was ‘meaningless’. It was submitted that if a mechanism was to be constructed, that adopted by the sentencing judge was the only viable one.

140 In response to these submissions the Director conceded that the legislation did not set out a mechanism for how the provisions were to work. He submitted that generally the Act did not set out mechanisms. He referred to the process whereby sentencing principles develop over time. In substance, he endorsed the sentencing judge’s approach up to the point where he made a determination that this case was of a character below the median. There is no ‘mechanism’ beyond that existing in the concept of a ’median’ itself.

141 I am unable to accept the submission that the legislation is meaningless or is incapable of practical application.

142 Leaving to one side for the moment the issue raised in the ground of appeal, my conclusion is that the sentencing judge’s analysis is otherwise correct. In particular, for the reasons the sentencing judge gave, in my view:

143 As the authorities reviewed demonstrate, legislative provisions may confine the scope within which instinctive synthesis is to operate and may require the imposition of a sentence which would otherwise be contrary to well-established sentencing principles. Indeed, legislative provisions may themselves alter the operation of long-standing sentencing principles, such as proportionality, by the introduction of an additional ‘yardstick’ or ‘datum point’ or ‘guidepost’. There is no need for legislated yardsticks, or guideposts, or datum points, to be ‘calibrated’ to any established or assumed range of moral culpability in offenders. The legislature can introduce provisions which move the length of sentences upwards by adding an additional consideration to the pre-existing considerations which bear on the determination of the appropriate sentence.

144 The decisions of the High Court, and of this Court, in relation to the standard non-parole period provisions in New South Wales and in relation to the Commonwealth mandatory minimum sentences reveal the way that legislation can operate in this way to act as a ‘guidepost’,[107] to ‘hedge about’ the sentencing discretion,[108] to add an additional ‘yardstick’,[109] and to ‘modify’ existing sentencing principles.[110]

145 It seems to me that in the baseline provisions the Parliament has added a new guidepost or yardstick which now confines the scope in which instinctive synthesis operates, which guides the sentencing discretion, and which modifies sentencing principles.

146 It is true that the concept of the ‘median’ in the context of sentencing is beset with uncertainty and difficulty. By its very nature the median is dependent on other cases. The legislation sets no period for the determination of the median. The effect of any particular sentence on the future median is incapable of accurate prediction. In my view these characteristics indicate that Parliament does not intend this new consideration to be applied in a rigid manner, much less, in any mathematical way. That does not mean that it is impossible for Parliament’s intention to be taken into account and to be given effect. Indeed, the material before the sentencing judge here and his analysis of it in this case has demonstrated how that can be done. Of course, in the case before him, he had data which he considered to be reliable, and that may not always be the case. The High Court has very recently pointed out that sometimes the available statistics are meaningless.[111]

147 It is true that the median is unrelated to the seriousness of the offence and that it does not represent any known point in the range of culpability. The median is related to the eventual outcome taking all considerations into account rather than simply the objective seriousness of a particular offence. In that particular respect, it is like the maximum, which also represents the eventual conclusion taking all considerations into account. Of course, the baseline provisions are very different to provisions specifying a maximum penalty. Parliament determines the maximum penalty. These provisions express an intention and provide for that to be taken into account.

148 I do not consider that the absence of a ‘mechanism’ is fatal to the practical operation of the provisions. There are many matters of judgment which must be addressed in sentencing for which there is no prescribed ‘mechanism’.

149 Thus far, my conclusions accord, it seems to me, with those of the sentencing judge. I turn then to the question of whether he made an error when he determined that the baseline provisions would not affect his sentence on charge 6 because he considered it to be a below median case.

150 In my opinion the Director was correct in submitting that the sentencing judge was in error.

151 The sentencing judge was correct when he said that once it is decided to impose a sentence beneath the median, as a matter of mathematics, any sentence under that median will not affect the median. But to approach the legislation that way cannot be correct in my view, as a matter of law. That approach is inconsistent with the legislation. The legislation provides that the sentencing judge must have regard to the baseline sentence (s 5(2)(ab)), adopt sentencing practices which give effect to the statutory intention (s 5A(1)(b) and (2)), and sentence in a manner compatible with that intention (s 5A(3)(a)), in every case, not just in those at or above the median. I do not accept that ignoring those considerations because that is consistent with the mathematics is correct.

152 In my view the sentencing judge’s approach is also contrary to the principle that sentencing should be a system in which sentences coherently relate to each other. Sentencing must be consistent, or ‘systematically fair’.[112] The introduction of a new consideration into the process of instinctive synthesis does not warrant a departure from the requirement of consistency. It does not warrant sentencing as unconnected single instances, or the creation of separate sentencing regimes for the one offence. Just as the maximum penalty operates as a yardstick affecting all sentences, the baseline provisions must also affect all sentences. Legislative provisions might at times lead to distortions, as has been suggested could occur with mandatory minimum sentences,[113] but distortions of that kind should exist only where they are unavoidable. Of course, the legislation itself now creates two regimes, in the sense that a different regime will apply to offences after 2 November 2014. But I do not accept that the legislation is to be interpreted as creating two separate, inconsistent and systematically unfair regimes for different offences to which the new legislation applies.

153 For certain crimes data will be available revealing a spread of cases across a statistical range. In Hogarth this Court said that was to be ‘expected’.[114] That was the position in the case before the sentencing judge. That may not always be the case. In this case it seems to me that the sentencing judge considered that he did have material before him which enabled him to make a judgment about the level at which this sentence should be by reference to Parliament’s legislated intention. He did make that judgment in reaching a conclusion that this sentence should be below Parliament’s intended median. But he did not do so when determining the sentence, not because he concluded it could not be done but because he concluded the legislation did not require it to be done once he had decided that this was a case where a sentence below the median was the correct one.

154 As to whether what he did amounted to ‘two-stage sentencing’, I would only observe that it was not two-tier sentencing as described by McHugh J in Markarian. The relevant point is that in my view he proceeded in a manner which was impermissible by in effect establishing two separate and inconsistent sentencing regimes for the one offence and by failing to apply the legislation.

155 If the sentencing judge’s conclusion that the new provisions did not affect the sentencing principles to be applied with respect to sentences for cases falling below the median is rejected, the sentence to be imposed on charge 6 must be significantly increased. The sentencing judge recognised that, at least implicitly. Counsel for the respondent accepted that it would be difficult for him to defend the sentence on charge 6 if the sentencing judge’s approach were rejected, and he did not attempt to do so. Accordingly, in my view the appeal should be allowed.

156 It is necessary to re-sentence the respondent on charge 6 and to re-consider the orders for concurrency and cumulation and the non-parole period. No complaint is made as to the sentences imposed on charges 1 to 5. They will remain unchanged. But because concurrency and cumulation and the non-parole period must be addressed it is necessary to briefly review all of the offending conduct.

157 The respondent and his wife have nine children. The family lived together in outer suburban Melbourne. The victim of the offending is the third of the nine children. She turned 14 in 2012. The offending against her began in that year when she was either 13 or 14. It continued until the victim made complaints, initially to a male friend, in November 2014. Thus, the offending continued for approximately two years.

158 The offending began with the respondent touching the victim while they watched television together under a blanket. The respondent touched the victim on her breast under and over her clothes on several occasions. Charge 1 concerned one of those occasions. It was a representative charge. From the outset the victim displayed resistance by her actions. Charge 1 was a charge of indecent act with a child under 16 involving the touching of the victim’s breasts. The charge was representative of three incidents of that kind of offending.

159 The respondent ceased his offending for a time but then resumed. Charge 2 was a charge of indecent act with a child under 16 and involved touching the victim’s vagina. The charge was again a representative charge, this time of four instances of offending. Again, touching of this kind began whilst the respondent and the victim were watching television under a blanket. Again, the victim attempted to dissuade the respondent by her actions but he persisted. Charge 2 itself was constituted by an incident when he touched the victim’s vagina whilst lying next to her on her bed. The victim shared a bedroom with three of her sisters.

160 The respondent’s conduct escalated further and he began penetrating the victim’s vagina with his fingers. The first such occasion of penetration was charge 3. In his record of interview he said that he knew the victim did not want him to be doing what he was doing and did not like it but that she did not know how to stop him. After his offending he would ask her forgiveness and she would say that she did forgive him. At various times he made promises to her that he would stop.

162 The respondent’s offending escalated further. The prosecution summary of facts on plea describes the circumstances of charges 4, 5 and 6 as follows:

163 The victim reported at least some aspects of what had been occurring to a male friend of hers. As a consequence of that report the victim’s mother was alerted to what was happening. On the same day the respondent attended the local police station. He made full admissions. He told police of the circumstances constituting charges 3 and 4, which were matters that would not have come to light at all but for his admissions. In his record of interview the respondent, amongst other things, said the following (as set out in the prosecution summary):

164 The sentencing judge summarised the circumstances of the offending in greater detail than I have done. He referred to victim impact statements which had been filed by the respondent’s wife and one of the other children. As he observed, the respondent’s wife has suffered significantly as a result of the offending. The family has been fractured and the responsibilities on her have grown considerably. I adopt what was said in the sentencing remarks about the victim impact statements.

165 The sentencing judge observed that whilst there had been no violence or threats made these were very serious offences. He referred to the respondent’s conduct in making full admissions. He observed that both general and specific deterrence were significant.

166 The sentencing judge set out the respondent’s personal circumstances and referred to supportive references which had been tendered on the plea. Again, I adopt what the sentencing judge said about those matters.

167 The sentencing judge referred to the fact that the respondent suffers from Type 2 diabetes. In relation to the respondent’s mental health the sentencing judge said:

169 The sentencing judge referred to the fact that the respondent had pleaded guilty at the earliest practical opportunity and that his remorse was illustrated not just by the guilty plea but by the full admissions he had voluntarily made and a willingness he had expressed to undertake treatment.

170 The sentencing judge referred to the fact that the respondent has no prior convictions. He concluded that the respondent’s prospects for rehabilitation were good.

171 The sentencing judge referred to the fact that upon the imposition of sentences of imprisonment for charges 1 and 2 the respondent would be sentenced on charges 3 to 6 as a serious sexual offender. He observed that the prosecutor did not submit that a disproportionate sentence should be imposed. He observed that the Act required that the terms of imprisonment on charges 3 to 6 be cumulative unless otherwise directed, which he indicated that he would do. The sentencing judge directed that the fact that the respondent was to be sentenced as a serious sexual offender be entered in the records of the Court.

172 The sentencing judge then referred to the conclusion he had reached in relation to the operation of the baseline provisions on charge 6, to which I have previously referred. He referred to the principle of totality and then sentenced the respondent as follows:

173 As indicated, before the sentencing judge the Crown had produced material which sought to analyse and categorise historic sentences by reference to the historic median. In relation to that material the sentencing judge said:

175 I adopt, with respect, everything said by the sentencing judge in the two long passages I have just quoted.

176 My conclusion is, like the sentencing judge and for the reasons he gave, that a sentence below the baseline sentence is the appropriate sentence here.

177 In deciding what sentence to impose on charge 6 I must have regard to the baseline sentence of 10 years. I must engage in a sentencing practice which gives effect to Parliament’s intention that 10 years’ imprisonment is to be the median sentence. I must sentence in a manner compatible with that intention.

178 As the sentencing judge explained, this necessarily involves assumption, prediction and speculation as to future patterns of offending and sentencing. The process is not one whereby the historic median can be simply transposed. But the historical data does provide an empirical basis for the judgment which must be made as to where this sentence should fit in the projected set of undetermined future sentences. At this early stage, it is necessary to be conservative in making this judgment.

179 The sentencing judge observed that he could do no more than seek to adopt an approach which most closely meets the requirements of the law on the basis of information available. I agree.

180 Considering all of the relevant matters, in my view the appropriate sentence on charge 6 is seven years’ imprisonment. That seems to me to be compatible with Parliament’s expressed intention, in that it reflects the sentencing judge’s conclusion, with which I agree, that the sentence should fall below the baseline sentence. The reasons why it should fall below the baseline sentence are the reasons given by the sentencing judge in the passages I have quoted. It is significantly above the historic median. In my judgment this is necessary to give effect to Parliament’s intention given that the historic median is five years’ imprisonment and the baseline sentence is 10 years. As indicated, at this early stage in the operation of the provisions it is necessary to be conservative.

181 Turning then to the issues of concurrency and cumulation, the established principles of totality continue to apply. Save for charge 5, which was the base sentence, and for charge 6 itself, I adopt the conclusions as to cumulation and concurrency of the sentencing judge.

182 The sentence of seven years’ imprisonment on charge 6 should now be the base sentence.

183 Charge 5, which was the base sentence, was a very serious offence. It was constituted by penile penetration of the offender’s own teenage daughter. Having regard to totality, and in particular to the sentence I would impose on charge 6, I would direct under s 6E of the Act that one year of that sentence be cumulative on the sentence imposed on charge 6 and that otherwise that sentence be served concurrently.

184 On charges 1 and 2 I would direct cumulation of four months, and on charges 3 and 4 I would direct under s 6E of the Act that four months of each sentence be cumulative and that otherwise those sentences be served concurrently.

185 The total effective sentence I would impose would accordingly be nine years four months’ imprisonment. I would fix a non-parole period of six years, which is in excess of the 60% minimum required by s 11A(4)(c) of the Act.

187 To the extent it is necessary to do so, and mindful of the inherent problems in a case of this kind where full disclosure and remorse are so significant, I would declare under s 6AAA of the Act that but for the plea of guilty I would have imposed a total effective sentence of 13 years with a non-parole period of 10 years.

^[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Respondent.

^[2] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664, 671 [22] (‘Thiess’); see also Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 476 [14]; Legal Services Board v Gillespie Jones [2013] HCA 35; (2013) 249 CLR 493, 509 [49], 511 [59].

^[3] [2014] VSCA 143, [101]–[102] (citations in original).

^[4] Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; (2012) 248 CLR 1, 14 [28].

^[5] Certain Lloyds Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, 390 [26].

^[6] International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, 349 [42].

^[7] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 382 [71].

^[8] Commissioner of State Revenue v EHL Burgess Properties Pty Ltd [2015] VSCA 269, [74].

^[9] DPP v Leys [2012] VSCA 304; (2012) 296 ALR 96, 130 [109]–[110] (‘Leys’).

^[10] Inco Europe Ltd v First Choice Distribution [2000] All ER 109, 115 (Lord Nicholls), quoted with approval in Minister v SZJGV [2009] HCA 40; (2009) 238 CLR 642, 651 [9]; see also Leys [2012] VSCA 304; (2012) 296 ALR 96, 130 [110].

^[11] See, eg, Marshall v Watson [1972] HCA 27; (1972) 124 CLR 640, 644, 649; Re Bolton; ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 518.

^[12] See, eg, Re Bolton; ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 518; Kline v Official Secretary to the Governor-General (2013) 249 CLR 645, 659 [32]; North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia [2015] HCA 41, [229].

^[13] See Interpretation of Legislation Act 1984 s 36(3A); McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717, [22] (Pembroke J); Morgan v Commissioner of Police (NSW) [2012] NSWSC 1141, [142] (Johnson J).

^[14] Crimes Act 1958 s 47(1). The maximum penalty is 10 years’ imprisonment.

^[15] Ibid s 44(1). The maximum penalty is 25 years’ imprisonment.

^[16] Pursuant to pt 2A of the Sentencing Act 1991, the respondent was sentenced as a serious sexual offender on charges 3, 4, 5 and 6.

^[17] The amendments to pt 2 of the Sentencing Act 1991, and other baseline sentencing provisions, were effected by the Sentencing Amendment (Baseline Sentences) Act 2014, which commenced on 2 November 2014. Under s 155(2) of the Sentencing Act 1991, the amendments ‘only apply to the sentencing of an offender on or after the commencement of that Part for an offence alleged to have been committed on or after that commencement’.

^[18] Emphasis added.

^[19] Lesley Brown (ed), The New Shorter Oxford English Dictionary (Clarendon Press, 3^rd ed, 1993) vol 1, 1729.

^[20] Cf Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 561, 572.

^[21] Australian Bureau of Statistics, Statistical Language – Measures of Central Tendency, (3 July 2013) <http://www.abs.gov.au/websitedbs/a3121120.nsf/home/statistical+language+-+measures+of+central+tendency> .

^[22] Emphasis added.

^[23] The Sentencing Advisory Council separately provided the information on the number of offences in each period.

^[24] Markarian v The Queen (2005) 228 CLR 357, 372 [31] (‘Markarian’); see R v AB [No 2] [2008] VSCA 39; (2008) 18 VR 391, 402–404 [37]–[41].

^[25] R v [Walters] [2015] VSC 372 (Lasry J) Appendix 1, [81] (emphasis in original).

^[26] Ibid [83].

^[27] Ibid [84]–[85] (emphasis in original) (citations omitted).

^[28] See, eg, Liquor Control Act 1968 s 3; Kordister v Director of Liquor Licensing (2012) 39 VR 92, 136 [182].

^[29] See and compare Occupational Health and Safety Act 2004 s 2(2); Jury Directions Act 2015 s 5(5).

^[30] See and compare Charter of Human Rights and Responsibilities s 32(1) (‘the Charter’).

^[31] Emphasis added.

^[32] Emphasis added.

^[33] Interpretation of Legislation Act 1984 s 36(3A).

^[34] See fn 13 above.

^[35] Victoria, Parliamentary Debates, Legislative Assembly, 3 April 2014, 1276–7 (Robert Clark, Attorney-General) (emphasis added).

^[36] [2009] HCA 41; (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) (citations omitted).

^[37] Cf Norton v Long [1968] VicRp 23; [1968] VR 221, 223–4.

^[38] See Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 608 [66] (‘Wong’).

^[39] Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446, 455–6 [28] (‘Zheng’). See also Public Service Association of South Australia v Industrial Relations Commission (SA) [2012] HCA 25; (2012) 249 CLR 398, 423 [64]; Lacey v Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573, 592 [43].

^[40] Zheng [2009] HCA 52; (2009) 239 CLR 446, 455–6 [28]. See also Plaintiff S10/2011 v Minister [2012] HCA 31; [2012] 246 CLR 636, 666 [97].

^[41] [1908] HCA 63; (1908) 7 CLR 277, 304.

^[42] See Bropho v State of Western Australia [1990] HCA 24; (1990) 171 CLR 1, 18.

^[43] [2004] HCA 40; (2004) 221 CLR 309, 329 [21].

^[44] See Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117, [30]; Lee v NSW Crime Commission [2013] HCA 39; (2013) 251 CLR 196, 309 [312] (‘Lee’); North Australian Aboriginal Justice Agency Ltd v Northern Territory of Australia [2015] HCA 41, [11].

^[45] See [56] above.

^[46] Wong [2001] HCA 64; (2001) 207 CLR 584, 611 [74]–[76]; Markarian (2005) 228 CLR 357, 375 [39].

^[47] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 527 [18], 535 [48]–[49] (‘Hili’).

^[48] See Boulton v The Queen [2014] VSCA 342; Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, 60-61 [58]–[62].

^[49] See DPP v Galloway [2014] VSCA 272; Lee [2013] HCA 39; (2013) 251 CLR 196, 310 [314].

^[50] Wong [2001] HCA 64; (2001) 207 CLR 584, 606 [59]; Hili [2010] HCA 45; (2010) 242 CLR 520, 537 [54]–[55].

^[51] Hili [2010] HCA 45; (2010) 242 CLR 520, 537 [54]; Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58, 74 [41].

^[52] Anderson v The Queen [2013] VSCA 138 [22].

^[53] Crimes Act 1958 s 44(1A).

^[54] R v [Walters] [2015] VSC 372, [74] (‘Sentencing Reasons’).

^[55] Ibid [149].

^[56] Simpson v The Queen [2015] VSCA 210; Latina v The Queen [2015] VSCA 102; Lakkis v The Queen [2015] VSCA 208; Scammell v The Queen [2015] VSCA 206; Sadrani v The Queen [2015] VSCA 202; Meade v The Queen [2015] VSCA 171; Raveche v The Queen [2015] VSCA 99; DPP v Torun [2015] VSCA 15; Bass (a pseudonym) v The Queen [2014] VSCA 350; Xypolitos v The Queen [2014] VSCA 339; Murrell v The Queen [2014] VSCA 337; Singh v The Queen [2014] VSCA 250; Pham v The Queen [2014] VSCA 204; Bernath v The Queen [2014] VSCA 195; Pilgrim v The Queen [2014] VSCA 191; Blair (a pseudonym) v The Queen [2014] VSCA 175; Stensholt v The Queen [2014] VSCA 171; McPhee v The Queen [2014] VSCA 156; Leddin v The Queen [2014] VSCA 155; Saner v The Queen [2014] VSCA 134; Tasevski v The Queen [2014] VSCA 135; Dao v The Queen [2014] VSCA 93; Secombe v The Queen [2014] VSCA 28; Cummins (a pseudonym) v The Queen (2013) 40 VR 319; Gadd v The Queen [2012] VSCA 267; Dankovic v The Queen [2012] VSCA 255; DM v The Queen [2012] VSCA 227; Zammit v The Queen [2012] VSCA 216; M A v The Queen [2012] VSCA 214; Chol v The Queen [2012] VSCA 204; El-Waly v The Queen [2012] VSCA 184; DPP v Hill [2012] VSCA 144; Abdifar v The Queen [2012] VSCA 66; Marku v The Queen [2012] VSCA 51; Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658; Middendorp v The Queen [2012] VSCA 47; (2012) 35 VR 193; DPP v Werry (2012) 37 VR 524; Blackler v The Queen [2012] VSCA 16; Violatzi v The Queen [2011] VSCA 424; Rolls v The Queen (2011) 34 VR 80; Tamamovich v The Queen [2011] VSCA 330; McDonough v The Queen [2011] VSCA 310; Sarvak v The Queen [2011] VSCA 300; Dutton v The Queen [2011] VSCA 287; DPP v Johnson (2011) 35 VR 25; DPP v Nationwide Towing and Transport Pty Ltd [2011] VSCA 291; Mok v The Queen [2011] VSCA 247; Rintoull v The Queen [2011] VSCA 245; Russell v The Queen [2011] VSCA 147; Faj v The Queen [2011] VSCA 137; Pettiford v The Queen [2011] VSCA 96; Trowsdale v The Queen [2011] VSCA 81; Adams v The Queen [2011] VSCA 77; DPP v Wightley [2011] VSCA 74; Spiteri v The Queen [2011] VSCA 33; Mok v The Queen [2011] VSCA 38; FD v The Queen [2011] VSCA 8; Likiardopoulos v The Queen (2010) 30 VR 654; Gray v The Queen [2010] VSCA 312; Cay v The Queen (2010) 29 VR 560; Sharkey v The Queen [2010] VSCA 273.

^[57] See, eg, DM v The Queen [2012] VSCA 227 [40]; M A v The Queen [2012] VSCA 214 [80]; Chol v The Queen [2012] VSCA 204 [36]; DPP v Hill [2012] VSCA 144 [47]; Abdifar v The Queen [2012] VSCA 66 [51]; Middendorp v The Queen [2012] VSCA 47; (2012) 35 VR 193, 205 [38]; Tamamovich v The Queen [2011] VSCA 330 [43] .

^[58] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 608 [66] (Gaudron, Gummow and Hayne JJ) (‘Wong’).

^[59] R v Pham [2015] HCA 39 [49] (Bell and Gageler JJ) (‘Pham’).

^[60] [2009] VSCA 129 [35]. Cited with approval in Ashdown v The Queen [2011] VSCA 408 ; (2011) 37 VR 341, 394 [151(31)]; Bowen v The Queen [2011] VSCA 67 [71]; R v Towle [2009] VSCA 280 [110]; DPP v Moses [2009] VSCA 274 [29]; R v Tran [2009] VSCA 252 [25]; R v Danh [2009] VSCA 251 [25]; DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 475 [74].

^[61] In addition to the above, see eg: Hards v The Queen [2013] VSCA 119 [26]; Violatzi v The Queen [2011] VSCA 424 [25]; DPP v Aparo [2011] VSCA 207 [28]–[33]; Russell v The Queen [2011] VSCA 147 [4], [42] and [61]; DPP v Dowie [2009] VSCA 154 [25].

^[62] Russell v The Queen [2011] VSCA 147 [61] (Kaye AJA as he then was).

^[63] Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658, 673 [58] (Maxwell P, Neave JA and Coghlan AJA).

^[64] (2005) 228 CLR 357, 378 [51]. See also Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 611 [75] (Gaudron, Gummow and Hayne JJ) cited with approval by the majority in Markarian: (2005) 228 CLR 357, 374 [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

^[65] Markarian (2005) 228 CLR 357, 377–8 [51].

^[66] Ibid 405 [132].

^[67] Ibid 370 [24] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

^[68] Ibid 373 [36] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

^[69] Wong [2001] HCA 64; (2001) 207 CLR 584, 608 [65] and 612 [76] (Gaudron, Gummow and Hayne JJ).

^[70] Markarian (2005) 228 CLR 357, 371 [27] and 373 [35]–[36] (Gleeson, Gummow, Hayne and Callinan JJ) and [84] (McHugh J).

^[71] Ibid 390 [84].

^[72] [2001] HCA 64; (2001) 207 CLR 584, 591 [6] very recently cited and endorsed in Pham [2015] HCA 39 [24] (French CJ, Keane and Nettle JJ).

^[73] Pham [2015] HCA 39 [28] (French CJ, Keane and Nettle JJ).

^[74] Ibid.

^[75] Markarian (2005) 228 CLR 357, 372 [30]–[31] (Gleeson, Gummow, Hayne and Callinan JJ).

^[76] [2012] VSCA 302; (2012) 37 VR 658, 674 [60].

^[77] (1986) 23 A Crim R 179, 186.

^[78] Markarian (2005) 228 CLR 357, 385 [69] (McHugh J).

^[79] Ibid 389–90 [83].

^[80] [2013] HCA 40; (2013) 252 CLR 381.

^[81] Ibid 397–8 [52].

^[82] Ibid 413–14 [102]–[106] (citations omitted).

^[83] (2005) 228 CLR 357, 389 [80].

^[84] [2011] HCA 39; (2011) 244 CLR 120.

^[85] Ibid 132 [27]-[28] (citations omitted).

^[86] Ibid [31].

^[87] [2013] HCA 40; (2013) 252 CLR 381, 396 [47]–[48] (citations omitted).

^[88] [2013] VSCA 149.

^[89] Ibid [42].

^[90] Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100, 109 [34].

^[91] Al Haidari [2013] VSCA 149 [42].

^[92] Ibid [43].

^[93] Sentencing Reasons [76].

^[94] Ibid [81].

^[95] Ibid [85].

^[96] Ibid [88]–[89] (citations omitted).

^[97] Ibid [95].

^[98] Ibid [109].

^[99] Ibid [120]–[122].

^[100] Ibid [124].

^[101] Ibid [130].

^[102] [1998] 1 VR 359.

^[103] [1999] HCA 54; (1999) 199 CLR 270.

^[104] Sentencing Reasons [152].

^[105] Ibid [149].

^[106] Ibid [57].

^[107] Muldrock [2011] HCA 39; (2011) 244 CLR 120, 132 [27].

^[108] Magaming [2013] HCA 40; (2013) 252 CLR 381, 396 [47].

^[109] Markarian (2005) 228 CLR 357, 372 [30]–[31].

^[110] Al Haidari [2013] VSCA 149 [42].

^[111] Pham [2015] HCA 39 [49].

^[112] Wong [2001] HCA 64; (2001) 207 CLR 584, 591 [6].

^[113] Al Haidari [2013] VSCA 149 [42] citing Atherden v Western Australia [2010] WASCA 33 [43].

^[114] [2012] VSCA 302; (2012) 37 VR 658, 674 [60].

^[115] Citations omitted.

^[116] Citations omitted.

^[117] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

^[118] Sentencing Reasons [43]–[47].

^[119] This means there was no mitigating consideration by virtue of a guilty plea. In other words the offender had pleaded not guilty.

^[120] Sentencing Reasons [111]–[113] (citations omitted).

^[121] Sentencing Reasons [153]–[158] (citations omitted).

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URL: http://www.austlii.edu.au/au/cases/vic/VSCA/2015/303.html

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant

v

DANIEL WALTERS (A PSEUDONYM)^[1]	Respondent

JUDGES:	MAXWELL P, REDLICH, TATE, WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 October 2015
DATE OF JUDGMENT:	17 November 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 303
RULING APPEALED FROM:	R v [Walters] [2015] VSC 372 (Lasry J)

APPEARANCES:	Counsel	Solicitors

For the Appellant	Mr J Champion SC with Ms F L Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

For the Respondent	Mr T Marsh with Mr A Pyne	Victoria Legal Aid

For the Criminal Bar Association (as amicus curiae)	Ms L A Taylor QC

Charge	Offence		Sentence	Cumulation
1	Indecent act with a child under 16		2y	4m
2	Indecent act with a child under 16		2y	4m
3	Incest		4y	4m
4	Incest		4y	4m
5	Incest		5y	Base
6	Incest		4y 6m	4m
Total Effective Sentence		6y 8m
Non-Parole Period		4y
Section 6 AAA Statement		8y with a non-parole period of 4y 10m

Year	Period	Number of persons sentenced	Number of offences	Median
2008	2002–03 to 2006–07	132	604	4y
2010	2004–05 to 2008–09	167	702	4y
2012	2006–07 to 2010–11	172	892	4y 5m
2014	2008–09 to 2012–13	145	652	4y 9m
2015	2009–10 to 2013–14	134	628	5y

Charges	Offence	Maximum	Sentence	Cumulation
1	Indecent act with a child under 16 [s 47(1) of the Crimes Act 1958]	10y	2y	4m
2	Indecent act with a child under 16 [s 47(1) of the Crimes Act 1958]	10y	2y	4m
3	Incest [s 44(1) of the Crimes Act 1958]	25y	4y	4m
4	Incest [s 44(1) of the Crimes Act 1958]	25y	4y	4m
5	Incest [s 44(1) of the Crimes Act 1958]	25y	5y	Base
6	Incest [s 44(1) of the Crimes Act 1958]	25y	4y 6m	4m
Total Effective Sentence			6y 8m
Non-Parole Period			4y
Pre-Sentence Detention Declaration			18 days
Section 6AAA Statement: 8 years’ imprisonment with a non-parole period of 4 years and 10 months.
Other relevant orders: Retention of forensic sample. Sentenced as a Serious Sexual Offender on charges 3 to 6. Reporting for life under the Sex Offenders Registration Act 2004.

Supreme Court of Victoria - Court of Appeal

DPP v Walters (a pseudonym) [2015] VSCA 303 (17 November 2015)