Baseline Sentencing: Report [2012] VicSAC 4 (3 May 2012)

This paper contains subject matter that may be distressing to readers, including case examples that contain explicit material describing offences.

In April 2011, the Attorney-General asked the Sentencing Advisory Council (‘the Council’) to advise him on aspects of a baseline sentencing scheme. The introduction of such a scheme is one of a number of policies relating to sentencing that the then opposition announced prior to its election to government in 2010.

Among those policies, the baseline sentencing scheme – governing the way in which higher courts will sentence the majority of offences heard before those courts – represents one of the most significant changes to sentencing in Victoria for many decades.

The advice that the Attorney-General has sought from the Council is limited to such matters as the offences that should be included in the scheme, the baseline levels for those offences, how the scheme should operate in practice and the likely effects of the scheme on prisoner numbers. The Attorney-General has not asked the Council to examine the merits of a baseline sentencing scheme or whether a baseline sentencing scheme should be introduced. While acknowledging the views expressed by the majority of stakeholders consulted – including objections to the introduction of a baseline sentencing scheme – the Council has confined its advice to those matters raised in the terms of reference.

It is important to recognise that the baseline sentencing scheme is not a mandatory custodial sentencing scheme. A baseline level represents the starting point for the sentencing judge when determining the non-parole period for a baseline offence, after the judge has decided to impose a term of imprisonment.

This project posed a number of challenges in formulating a scheme that would implement the government’s policy objectives within the existing statutory and common law framework. For example, the Council sought to devise a practical way in which the baseline level set for an individual offence could influence the non-parole period set for a case as a whole. Similarly, the Council considered how sentences should be imposed in cases involving multiple offences, including multiple baseline offences.

Sentencing is not simply a mathematical process. It involves complex decision-making based on a court’s consideration of a wide array of factors and circumstances weighed against legislated and common law sentencing principles and purposes.

The proposal for a new baseline sentencing scheme illustrates the perennial tension between legislative and judicial prescriptions for how a court should sentence and the retention of sufficient discretion for a sentencing judge to sentence in a way that achieves individualised justice.

Without legislated processes and parameters, community values and expectations expressed through parliament may be undermined. A lack of prescription may also result in unjustified disparity in sentencing outcomes, which undermines the rule of law. At the same time, limiting discretion could result in the unique circumstances of each case not being taken into account, causing injustice for particular offenders. In formulating its recommendations, the Council sought to implement the government’s policy objectives while balancing these competing (though not mutually exclusive) concerns.

The Council has provided specific recommendations on the sentencing model, sentencing procedure and exclusions from the baseline sentencing scheme, as well as a recommended baseline level for each baseline offence. However, further refinement and consideration of how the baseline sentencing scheme will operate in practice is required.

One way in which oversight of and guidance on the operation of the scheme, once legislated, may be provided in the future is through decisions of the Court of Appeal, including guideline judgments in appropriate cases. Such judgments might specify guidelines for the way in which courts are to sentence under the baseline sentencing scheme, including factors relevant to determining where an example of an offence sits in relation to the legislated baseline level.

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Thérèse McCarthy
Council Members
Carmel Arthur
Graham Ashton†
Hugh de Kretser
Peter Dikschei*
David Grace QC
John Griffin†
Jenny Morgan
Barbara Rozenes
Gavin Silbert SC
Lisa Ward

*Commenced 1 January 2012. Did not participate in any deliberations regarding this report.

†Commenced 21 February 2012. Did not participate in any deliberations regarding this report.
Chief Executive Officer

The Council would like to thank all of those who made submissions and attended meetings and roundtables in relation to this reference. The Council would also like to thank the Department of Justice Library staff for their assistance in the preparation of this report.

Adjusted baseline	The period (in years) determined by a court when sentencing a baseline offence after starting at the baseline level and adjusting that level to account for the offence factors, the offender factors and any discount for a guilty plea and/or assistance to authorities.
Base sentence	The sentence of imprisonment in a case in relation to which other sentences of imprisonment are ordered to be served concurrently and/or cumulatively.
Base sentence offence	The particular offence committed by an offender for which the base sentence has been imposed.
Baseline level	The prescribed (legislated) level for a baseline offence. This level represents the non-parole period for an offence in the middle of the range of seriousness (based on offence factors only) and is the starting point (in years) for the court to determine the non-parole period when sentencing a baseline offence.
Baseline offence	An offence for which a baseline level has been prescribed.
Case	A collection of one or more charges against a person sentenced at the one hearing.
Charge	A single proven allegation of an offence.
Derived non-parole period	A hypothetical non-parole period calculated for each charge in a case that receives a term of imprisonment. It is derived by applying the ratio between the total effective sentence and the non-parole period for the case as a whole to the sentence imposed for the charge.
Derived non-parole period midpoint	The midpoint of the set of derived non-parole periods for a particular offence. It is calculated by adding the lowest and the highest derived non-parole periods and dividing by two.
Head sentence	The length of a sentence for an individual charge. For example, in a case with one charge, if a court sentences an offender to four years’ imprisonment with a non-parole period of three years, the head sentence is four years. In a case with one charge, the head sentence will also be the total effective sentence.
Instinctive synthesis	The method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to the appropriate sentence, given all the circumstances of the case. Sometimes instinctive synthesis is referred to as ‘intuitive synthesis’ or ‘sentencing synthesis’.
Median	The median is the middle value in a set or a distribution of values. For example, in the following set of values: 1, 2, 2, 3, 3, 4, 5, 5, 6, 6, 7 4 is the median value. It represents a statistical midpoint, where half of the values (1, 2, 2, 3, 3) are below the median, and half of the values (5, 5, 6, 6, 7) are above the median. If a set has an even number of values, the two middle values (sometimes defined as the lower median and the upper median) are averaged to find the median.
Offence factors	The aggravating and mitigating factors that exclusively relate to the way in which an offence has been committed. Offence factors include, for example, the use of any weapon, the nature of any injury to a victim and the level of planning or premeditation for the offence.
Offender factors	The aggravating and mitigating factors that exclusively relate to an offender. Offender factors include, for example, the offender’s age and family background and any prior history of offending.
Suspended sentence *(Sentencing Act 1991* (Vic) ss 27–31)**	A term of imprisonment that is suspended (that is, not activated) wholly or in part for a specified period (the ‘operational period’), subject to the condition to be of good behaviour (that is, not reoffend). A suspended sentence may be imposed for a maximum of two years in the Magistrates’ Court or three years in the County and Supreme Courts.
Total effective sentence	In a case involving a single charge, the sentence imposed for that charge; in a case involving multiple charges, the sentence resulting from orders of concurrency and/or cumulation for each sentencing order for each charge in the case.
Youth justice centre order *(Sentencing Act 1991* (Vic) ss 32–35)**	A sentence requiring a young offender (15 to 21 years old) to be detained in a youth justice centre. A youth justice centre order may be imposed for a maximum of two years in the Magistrates’ Court and for three years in the County and Supreme Courts.

This report is the Sentencing Advisory Council’s response to the Attorney-General’s request for advice on the introduction of baseline sentences for specified offences.

The Attorney-General requested that the Council provide its advice by 29 February 2012.

The government has stated, by way of example, that a ten-year baseline sentence should apply to the offence of trafficking in a large commercial quantity of drugs and a twenty-year baseline sentence should apply to the offence of murder.

The Council consulted with a wide variety of criminal justice, governmental and non-governmental stakeholders. The Council held three roundtables with both legal and community stakeholders and made a public call for submissions, receiving 15 written submissions. The Council also produced an issues paper on baseline sentencing, publicly available on the Council’s website, which helped facilitate discussion during these consultations.

This report contains recommendations relating to proposed baseline levels as well as recommendations about how these levels should be applied in practice. The Council has formulated these recommendations in accordance with the policy objectives and intent of the terms of reference. The recommendations are closely interrelated and are all based on the implementation of the recommended baseline model.

The terms of reference were provided to the Council in the context of concerns expressed by the government about the adequacy of current sentencing practices.

Judges of the Court of Appeal and the former Director of Public Prosecutions, Mr Jeremy Rapke, QC, have also expressed concerns about the adequacy of current sentencing practices for particular offences. At the date of provision of advice to the Attorney-General, the Director of Public Prosecutions’ policy on challenging current sentencing practices (Policy 32) has not been rescinded or amended by the present (newly appointed) Director of Public Prosecutions.

The Attorney-General has not asked the Council for advice on the merits of a baseline sentencing scheme or whether a baseline sentencing scheme should be introduced. The majority of stakeholders expressed strong opposition to a baseline sentencing scheme. While the Council notes these concerns, it has confined its advice to the terms of reference.

Implementation of a baseline sentencing scheme within the current sentencing framework

The Council considers that the framework for the baseline sentencing scheme should operate consistently with current sentencing principles both derived from the common law and prescribed by the Sentencing Act 1991 (Vic). The Council also recommends that the baseline sentencing scheme operate as consistently as possible with current sentencing processes.

Therefore, in considering proposed models for the implementation of the baseline sentencing scheme, the Council had particular regard to the proposed models that could best be incorporated into the existing sentencing framework, from both a policy and a procedural perspective.

In keeping with this approach, the Council has framed its advice on the assumption that the baseline sentencing scheme will only apply once a court has determined that a custodial sentence is appropriate. To assume otherwise suggests that a court must always begin the sentencing process with the presumption that an offender should receive a sentence of imprisonment, effectively creating a statutory custodial minimum or mandatory custodial sentencing scheme.

The Council has also framed its advice on the assumption that a baseline sentencing scheme will apply once the court has determined that a non-parole period is appropriate. This assumption is consistent with the government’s policy intention that a baseline level is to be the starting point for determining a non-parole period (that is, not a head sentence).

Although the Council considers that it is the government’s intention that the baseline sentencing scheme should operate within the existing sentencing framework, the Council notes that the introduction of the scheme represents a departure from current sentencing processes in that the scheme effectively requires the court to set a non-parole period before determining a head sentence. This presents particular challenges when applied to cases with multiple charges or offences.

Further, the use of a baseline level as a starting point for sentencing constitutes a staged approach to sentencing that can be contrasted with the current ‘sentencing synthesis’ or ‘instinctive synthesis’ approach described by the High Court in Markarian v The Queen.^[1] Under this approach, the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to the appropriate sentence (and non-parole period) given all the circumstances of the case.

The Council does not consider that the baseline sentencing scheme necessarily excludes the use of a sentencing synthesis completely. For example, it is anticipated that the court will retain a ‘synthesis’ approach when determining the aggravating and mitigating circumstances relevant to the sentence and the weight given to them, without specifying increments or decrements from the baseline level.

Two baseline sentencing models were proposed during consultation to facilitate discussion on how the baseline sentencing scheme should best be incorporated into the existing sentencing framework. These models are variations on models used in other jurisdictions, such as the standard non-parole scheme in New South Wales and the guideline sentencing scheme in England and Wales.

Of the stakeholders who specifically commented on the proposed model, the majority preferred the Objective Offence Seriousness Model. Many stakeholders considered that the Combined Model, which specifies factors relevant to an offence, is overly prescriptive, whereas the Objective Offence Seriousness Model more easily allows the court to take specific factors relevant to a case into account.

The Council recommends that a model similar to the Objective Offence Seriousness Model be adopted. The Council considers, however, that the model is better described as the ‘Offence Seriousness Model’.

The level of seriousness should be determined by factors that relate to the offence rather than the offender; these will generally be objective factors. Factors personal to the offender, which will generally be subjective factors, should not be relevant to the determination of offence seriousness. These factors are taken into account once the court has determined the level of offence seriousness.

As part of the examination of these models, the Council also considered whether there should be more than one baseline level for a particular offence. The Council recommends that there should be only one baseline level for an offence, as multiple baseline levels would result in the creation of new offences and would have a significant effect on charging and pleading practices. The Council also considers that this level should represent an offence that is in the middle of the range of offence seriousness rather than at the lower end or high end of offence seriousness.

The Council recommends that, when sentencing an offender to imprisonment for only one charge of a baseline offence, the court should use the prescribed baseline level as the starting point for determining an ‘adjusted baseline’. This adjusted baseline will be the period of time determined by the court after adjusting the baseline level to account for the aggravating and mitigating factors in the case and applying any relevant discount for a guilty plea and/or assistance to authorities.

The adjusted baseline will then be fixed as the non-parole period for the case, and the court will then determine a head sentence.

The application of a baseline level to cases involving multiple offences or charges raises particular challenges. Under current sentencing procedure, a non-parole period is determined (if one is considered appropriate) for the whole case after the court has determined the sentence for each charge and has made orders as to cumulation and/or concurrency. However, as the baseline level will represent a particular offence rather than all the offences in a case, it is necessary to determine a process where the baseline level is considered at the beginning of sentencing an offender (in order to be a ‘starting point’) as well as in the setting of a non-parole period for the whole case.

Consistent with these considerations, the Council recommends an approach that requires the court to start at the baseline level for the base sentence offence and set an adjusted baseline for that charge before completing sentencing for the case as a whole.

The Council considers that the baseline sentencing scheme should not apply to the following:

The Council recommends that the baseline sentencing scheme should not apply to children who are sentenced in the Children’s Court as that court is a court of summary jurisdiction. The Council also recommends that the baseline sentencing scheme should not apply to children sentenced to imprisonment in the higher courts under the Sentencing Act 1991 (Vic).

The Council considers that the particular vulnerability and needs of children constitute more than just mitigating factors to be taken into account by a court when sentencing. Children are in a special category, over and above other mitigating factors (such as mental impairment or lack of prior offending), that requires specific exclusion from the baseline sentencing scheme in order to avoid unjust consequences. The Council received substantial stakeholder feedback in support of this exclusion.

The government’s proposed list of baseline offences comprises those defined as ‘serious’ or ‘significant’ under the Sentencing Act 1991 (Vic).

The Council was not asked to provide advice on whether any of these offences should be excluded from the baseline sentencing scheme. However, some stakeholders submitted that particular offences should be excluded. A number of stakeholders also submitted that the baseline sentencing scheme should operate as a trial in relation to a much smaller number of offences. The Council acknowledges these submissions but makes no comment on them.

The terms of reference request that the Council consider whether any offences should be added to the proposed list of baseline offences.

The Council recommends that the following offences should also be baseline offences:

The Council considers that the offence of culpable driving causing death is of sufficient seriousness to be included in a baseline sentencing scheme. The Council also received strong stakeholder feedback supporting this view.

The Council also notes that in many instances offenders charged with culpable driving causing death ‘plead down’ to dangerous driving causing death, which attracts a lower penalty. Further, where an offender is charged with culpable driving causing death, a jury may find the offender guilty of dangerous driving causing death as an alternative. For these reasons and in light of the fact that dangerous driving causing death is a fatal offence, the Council considers that it should also be added as a baseline offence.

The statutory form of kidnapping is a proposed baseline offence under the terms of reference, but the common law form of kidnapping is not. Given the similarities between the two offences^[2] and the fact that they have the same maximum penalty, the Council considers that the common law form of kidnapping should also be a baseline offence.

In April 2011, the Attorney-General asked the Council to advise him on the introduction of statutory minimum sentences for the offences of intentionally causing serious injury and recklessly causing serious injury when either offence is committed in circumstances of ‘gross violence’.

The Council provided its advice in its report, Statutory Minimum Sentences for Gross Violence Offences.

In response to the Council’s report, the government committed to creating two new offences, intentionally causing severe injury and recklessly causing severe injury, which would both attract the statutory minimum sentence.

The Council considers that, if enacted, the proposed two new offences of intentionally and recklessly causing severe injury will be of sufficient seriousness to be included in the baseline sentencing scheme. This recommendation is consistent with the fact that other related offences, such as intentionally causing serious injury and recklessly causing serious injury, are already included in the list of baseline offences.

The terms of reference propose that the baseline sentencing scheme will apply to ‘serious’ and ‘significant’ offences^[3] as defined under the Sentencing Act 1991 (Vic). The definition of a ‘serious’ offence under the Sentencing Act 1991 (Vic) includes ‘an offence of conspiracy to commit, incitement to commit or attempting to commit’ any of the serious offences.^[4] As all serious offences (except when heard and determined summarily) are to be baseline offences, the conspiracy, incitement and attempt forms of the baseline offences are also included as baseline offences. While there is no similar provision in the Sentencing Act 1991 (Vic) for significant offences, the Council has taken the same approach to conspiracy, incitement and attempts to commit significant offences as to serious offences.

The Council has very limited data on attempt, conspiracy and incitement offences because there have been so few committed over the five-year period of the Council’s analysis. Further, the circumstances in which they are committed can vary considerably. In some instances, these forms of offences can be as serious as the substantive or completed offence to which they relate. In other instances they can be substantially less serious. For example, in some cases, the effect on a child who has suffered an attempted sexual penetration may be as great as the completed offence. Whereas, in the case of murder, the harm resulting from a completed offence (a fatality) is far greater than that for attempted murder.

The Council therefore recommends that separate baseline levels not be set for these offences. However, the Council considers that a court should have regard to the baseline level when sentencing for these offences, in the same way that a court must have regard to the maximum penalty and current sentencing practices. This approach is preferred because it will allow the court to take into account, where relevant, any increase in sentence levels for the substantive or completed offences.

In addition to the Council’s assumption that the baseline level will only apply when the court has determined to impose a custodial sentence and a non-parole period, there are a number of other key assumptions made by the Council regarding the baseline sentencing scheme.

In addition to these assumptions, the Council took into account particular factors to determine the recommended baseline levels. No one factor was determinative, but in some instances particular factors were given more weight than others.

The baseline levels are the result of an informed value judgment by the Council, based on the Council’s collective knowledge and experience and taking into account all of these sources of information.

The Council acknowledges that the baseline levels for sexual offences, compared with other categories of offending, reflect a considerable increase from current sentencing practices. In recommending these levels, the Council considered commentary by the Court of Appeal (or individual Judges of Appeal) about the adequacy of current sentencing practices for sexual offences, community views that sexual offences are particularly serious, the statistical discrepancy between current sentencing practices and the maximum penalties and the intention of the baseline sentencing scheme to increase current sentencing levels for particular offences.

The median sentence (as a measure of current sentencing practices) represents a statistical midpoint, where half of the sentences are below the median and half of the sentences are above the median. The median is not necessarily indicative of an offence that is in the middle of the range of offence seriousness because it takes into account a range of factors that do not just relate to offence characteristics. These factors include the offender’s character, any prior convictions, the degree of remorse, a guilty plea (if any) and the stage at which a guilty plea (if any) was made.

A ‘derived non-parole period’ (DNPP) midpoint is a statistical measure produced by the Council to provide a more meaningful representation of the middle of the range of offence seriousness than the median. This figure is likely to more accurately represent the baseline level because it is not influenced by the distribution of offences. For example, those offences that have a high volume of instances that cluster around a particular point – whether that be at the higher or lower end of offending (such as aggravated burglary) – will have a median that reflects this distribution.

When considering what alignment there should be between a baseline level and (current) sentencing practices (measured by the median), it is important to emphasise the expectation that the median will almost always be lower than the baseline level. This is because of the factors that the median incorporates, including all of the aggravating and mitigating factors, and any discounts for a guilty plea and/or cooperation with the authorities. The median does not represent offending in the middle of the range of seriousness for that offence, based purely on offence factors.

The Court of Appeal has jurisdiction to determine appeals against a sentence imposed by either the County Court or the Trial Division of the Supreme Court. The role of the Court of Appeal in reviewing sentences is to determine whether substantial errors have been made and to provide guidance to lower courts.

In relation to the baseline sentencing scheme, if a judge does not apply the baseline level as the starting point or applies the wrong baseline level, this may provide grounds of appeal by either the offender or the Director of Public Prosecutions. Other grounds of appeal in the future could be based on the court’s determination of where an offence sits in terms of the level of offence seriousness (that is, middle of the range or higher or lower).

The lengths of imprisonment terms imposed for some offences are expected to increase under the baseline sentencing scheme, resulting in an increase in the median sentence for those offences. However, as the median and the baseline level represent different values, the median will not be the same as the baseline level. Whether or not the baseline level and the median are in ‘alignment’ will therefore be a question for the Court of Appeal along with whether there is a justifiable reason for the difference between the two measures.

It is also within the current scope of the Court of Appeal’s jurisdiction to provide guideline judgments, including judgments involving baseline sentencing (once implemented). A judgment in an appropriate case relating to the baseline sentencing scheme could include guidelines on the factors that are relevant to particular offences in determining their level of offence seriousness.

The Council was asked to examine the likely effects of the recommended baseline sentencing scheme on sentencing levels and on the prison population. In response to this request, the Council has produced a set of estimates based on various scenarios.

The estimates do not represent forecasts of the actual numbers of prisoners in future years. The actual numbers of persons serving sentences for these offences in future years will be affected by a wide range of factors that may include population growth and other demographic changes as well as possible changes in the prevalence, reporting, investigation and prosecution of the relevant offences. The estimates also do not seek to incorporate these factors as they are highly uncertain and they are not necessary for the purpose of this advice. For example, the estimates do not take into account any changes in pleading practices or the granting of bail.

The Council anticipates that the recommended baseline sentencing scheme will result in judges imposing longer non-parole periods for offences covered by the scheme. The prison population will therefore increase. However, the level and rate of the increase will vary depending on a number of factors.

The Council has devised six separate scenarios, which vary in terms of the scope of affected cases and assumptions regarding the effects of the abolition of suspended sentences. While contingent upon many factors, under each scenario the prison population is predicted to rise.

The full effect of the baseline sentencing scheme will not become apparent immediately following its implementation. Depending on the scenario examined, the full effect is estimated to occur between seven and 11 or more years following implementation of the scheme.

The majority of the legislative amendments required to implement the Council’s recommendations on the baseline sentencing scheme are likely to primarily affect the Sentencing Act 1991 (Vic). However, the Council recommends that amendments also be made to the offence provisions in the Crimes Act 1958 (Vic) and the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

The Council notes that its recommendations for suggested amendments may not be exhaustive. There may be other consequential legislative amendments that the Office of the Chief Parliamentary Counsel will consider necessary to bring into effect the Council’s recommendations.

The Council has also considered a number of other matters relevant to the implementation of the baseline sentencing scheme.

A common concern expressed by stakeholders is the significant pressure that the baseline sentencing scheme could place upon the resources of an already stretched justice system. This includes the courts, Victoria Legal Aid, the Office of Public Prosecutions and the prison system, which, it was submitted, are already at capacity.

In particular, many stakeholders submitted that, due to what they considered to be the complexity of a baseline sentencing scheme, the length of court hearings is likely to increase. Stakeholders also contended that there is likely to be a decrease in the number of people pleading guilty due to what they considered to be a higher likelihood of a sentence of imprisonment even on a guilty plea, resulting in lengthier and more complex trials.

The Council considers that these concerns would be exacerbated if the Combined Model, rather than the Offence Seriousness Model, were adopted.

The baseline level represents the non-parole period for an offence that is in the middle of the range of seriousness, taking into account factors that are relevant to the offence only and before any discount has been applied for a guilty plea and/or assistance to authorities. Factors that are personal to the offender are not relevant to this determination. The baseline level represents the non-parole period for such an offence only when:

A baseline level applies when a court sentences an offender to imprisonment for a baseline offence and has determined that the fixing of a non-parole period is appropriate.

The Council recommends that there should be only one baseline level prescribed for each baseline offence.

The Council does not recommend that any of the baseline offences be redefined as part of the implementation of the baseline sentencing scheme. The Council considers that any redefinition of offences should be as a consequence of a broader review of criminal offences in Victoria.

Recommendation 5 – Application of the baseline level to cases with one charge

If a court sentences an offender to imprisonment for only one charge in a case and that charge is a baseline offence and the court has determined that the fixing of a non-parole period is appropriate, the court must use the prescribed baseline level as the starting point for determining the adjusted baseline.

The adjusted baseline will then be fixed as the non-parole period and the court must then determine a head sentence.

Recommendation 6 – Application of the baseline level to cases with multiple charges

If a court sentences an offender to imprisonment for more than one charge in a case and determines that the sentence for a charge of a baseline offence will be the base sentence, the court must use the prescribed baseline level of that base sentence offence as the starting point for determining the adjusted baseline.

The court must then fix a head sentence for the base sentence charge and for all other charges and then make orders for cumulation and/or concurrency to reach a total effective sentence. The court must then fix a non-parole period (for the case) that must be no less than the adjusted baseline.

Application of the baseline level to cases with multiple charges and offences, where a baseline offence is not the base offence

If a court sentences an offender to imprisonment for more than one charge in a case and has determined to set a non-parole period and the base sentence offence is not a baseline offence, a baseline level will not apply and the case is to be sentenced in the usual manner.

The Council recommends that aggregate sentencing should not be available in cases with baseline offences.

This recommendation is dependent on the Council’s assumption that the baseline sentencing scheme will only apply once the court has determined that a sentence of imprisonment and a non-parole period are appropriate.

The Council recommends that the following offences should be added as baseline offences:

The Council also recommends that the proposed offences of intentionally causing severe injury and recklessly causing severe injury, if enacted, should be added as baseline offences.

The Council recommends that separate baseline levels should not be set for attempting to commit, inciting or conspiring to commit a baseline offence.

When sentencing for an offence of attempting to commit, inciting or conspiring to commit a baseline offence, the court should have regard to the baseline level for the substantive offence.

Offence	Baseline level (years)
Murder	20
Defensive homicide	12
Child homicide	11
Arson causing death	10
Manslaughter	10
Incest – parent or de facto parent (when defined as a ‘serious’ offence under section 3 of the Sentencing Act 1991 (Vic))	10
Rape	10
Sexual penetration with a child under 12	10
Persistent sexual abuse of a child under 16	10
Culpable driving causing death	9
Trafficking in a large commercial quantity of a drug of dependence	9
Armed robbery	8
Intentionally causing severe injury – gross violence	8
Intentionally causing serious injury	7
Kidnapping – section 63A of the Crimes Act 1958 (Vic)	7
Trafficking in a commercial quantity of a drug of dependence	7
Aggravated burglary	7
Recklessly causing severe injury – gross violence	7
Sexual penetration with a child aged between 12 and 16 – where the child is under the care, supervision or authority of the offender	7
Kidnapping – common law	6
Recklessly causing serious injury	6
Sexual penetration with a child aged between 12 and 16	5
Abduction or detention	5
Arson	4
Assault with intent to rape	4
Manslaughter – suicide pact	4
Abduction of a child under 16	3
Dangerous driving causing death	3
Making a threat to kill	3
Incest – sibling (when defined as a ‘serious’ offence under section 3 of the Sentencing Act 1991 (Vic))	2

In addition to the legislative amendments required to implement Recommendations 1–8, the Council recommends that consideration be given to amending the enacting legislation of each baseline offence in order to specify the baseline level alongside the maximum penalty for each baseline offence (including the penalty provisions relating to common law baseline offences).

The Council recommends that the Court of Appeal’s authority to issue guideline judgments under Part 2AA of the Sentencing Act 1991 (Vic) should continue. The Council considers that it is within the scope of this power for the Court of Appeal to issue a guideline judgment concerning matters relevant to the baseline sentencing scheme. This guidance should not be inconsistent with any prescribed baseline level.

The Council recommends that current provisions relating to sentencing should also be preserved and will apply under a baseline sentencing scheme, including:

The Council recommends that there should be sufficient time between the legislative introduction of the baseline sentencing scheme and its practical implementation to allow for adequate preparation.

1.1 In April 2011, the Attorney-General wrote to the Sentencing Advisory Council asking it to advise him on the introduction of a baseline sentencing scheme.

1.3 The Attorney-General requested that the Council provide its advice by 29 February 2012.

1.5 The government has stated, by way of example, that a ten-year baseline sentence should apply to the offence of trafficking in a large commercial quantity of drugs and a twenty-year baseline sentence should apply to the offence of murder.

1.6 The terms of reference were provided to the Council in the context of concerns expressed by the government about the adequacy of current sentencing practices.

1.7 On 23 November 2010, the then Leader of the Opposition, Mr Ted Baillieu, MP, stated that:

Victorians are sick and tired of seeing offenders receive hopelessly inadequate sentences time and time again when they destroy the lives of young people with drugs, or commit the most horrific of murders.^[6]

1.8 In addition to seeking advice from the Council, the government, through the Department of Justice, commissioned a public survey, which ran from 27 July 2011 to 26 August 2011, seeking the community’s views on sentencing. Respondents to the survey were provided with short offence vignettes and asked which sentence should be imposed on the offender.

1.9 A summary of responses to the survey was publicly released on 5 December 2011.^[7] With the consent of the Department of Justice, the Council has reproduced a portion of these results (relating to non-parole periods) in Appendix 1. These results should be considered in the context of the government’s comments that the sentences given by the participants were in response to ‘the particular circumstances presented in each scenario’.^[8] The government stated that sentences given by participants were not ‘an expression of [a] view about a general level of appropriate sentence for the offence involved’^[9] and it was ‘not possible ... to consider the complexities that are a regular feature of real life cases’.^[10]

Director of Public Prosecutions’ challenge to current sentencing practices

1.10 On 31 August 2010, the former Director of Public Prosecutions, Mr Jeremy Rapke, QC, issued a media release announcing a new policy whereby the Director would argue for higher sentences in all aggravated burglary cases, by challenging current sentencing practices for that offence. Aggravated burglary was the first offence targeted in a policy challenging current sentencing practices that also included other offences.

The DPP’s challenge to current sentencing practices for aggravated burglary is the first stage of a long-term program to address inadequate sentencing practices for a number of offences, including rape, certain child abuse offences, intentionally and recklessly causing serious injury, and certain drug offences.^[11]

1.12 In his 2010–11 annual report, the former Director also referred to the program of challenging current sentencing practices.^[12]

1.13 As at the date of provision of advice to the Attorney-General, this policy (Policy 32) has not been rescinded or amended by the current, newly appointed Director of Public Prosecutions.

Court of Appeal commentary on current sentencing practices for certain offences

1.14 In a number of cases, the Court of Appeal (or individual Judges of Appeal) has questioned the adequacy of current sentencing practices for particular offences. A number of these cases were also referred to in the Director of Public Prosecutions’ Policy Regarding Challenging Current Sentencing Practices.^[13]

1.15 For example, in the case of Director of Public Prosecutions v CPD,^[14] the Court of Appeal (in a unanimous judgment) stated, in respect of current sentencing practices for sexual penetration with a child under 10 years of age:

[w]hen regard is had to the statutory maximum penalty of 25 years’ imprisonment, a real question arises as to the adequacy of current sentencing for this offence.^[15]

1.16 Similar comments have been made by the Court of Appeal or individual Judges of Appeal regarding current sentencing practices for the offences of rape,^[16] cultivating a commercial quantity of cannabis,^[17] intentionally causing serious injury,^[18] persistent sexual abuse of a child under 16^[19] and recklessly causing serious injury.^[20]

1.17 The Attorney-General has not asked the Council for advice on the merits of a baseline sentencing scheme or whether such a scheme should be introduced. A significant number of stakeholders, in their submissions and comments to the Council, expressed strong opposition to a baseline sentencing scheme.^[21]

1.19 Stakeholders also expressed concern that, regardless of its impact on sentencing outcomes, a baseline sentencing scheme would further complicate the already complex process of sentencing. They submitted that the consequences of this could include protracted sentencing plea hearings and a resultant increase in costs for all parties as well as significant resourcing implications for the courts.^[22]

1.20 While the Council notes these concerns, it has confined its advice to the terms of reference.

1.21 As a public statutory authority, the Council must act compatibly with the rights contained in the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Council has therefore had regard to this obligation in developing its advice; issues relevant to this are discussed in Chapter 12.

2.1 The sentencing of adults for offences in the higher courts is governed by the provisions in the Sentencing Act 1991 (Vic) (‘the Act’) and the principles of sentencing developed by the common law.

2.3 When deciding the sentence to impose in a particular case, the factors that the court must take into account include:

[a] court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

2.5 Similarly, section 5(4) of the Sentencing Act 1991 (Vic) makes explicit that this principle applies to the making of a custodial order:

A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.

2.6 When a court imposes a sentence of imprisonment for more than one offence, the court must impose a separate sentence for each offence. The sentences are served concurrently (at the same time) unless the court directs that they are to be served partially or wholly cumulatively.^[26]

2.7 A child may be convicted and sentenced in the County Court or the Supreme Court when the child has been charged with an offence that is automatically excluded from the Children’s Court jurisdiction,^[27] the Children’s Court has excluded its summary jurisdiction on the basis of ‘exceptional circumstances’ or the child (or in some cases the parent) has requested that the matter be heard in a higher court. Such an offender is both a ‘child’ for the purposes of the Children, Youth and Families Act 2005 (Vic)^[28] and a ‘young offender’ for the purposes of the Sentencing Act 1991 (Vic).^[29]

2.9 Youth detention can only be imposed pursuant to sections 32–35 of the Sentencing Act 1991 (Vic). Under these sections, the maximum period of detention that may be imposed by the County Court or the Supreme Court (regardless of how many charges the child is sentenced for in the same proceeding) is three years.^[31]

2.10 Alternatively, in the higher courts, children may be sentenced to imprisonment under the Sentencing Act 1991 (Vic). Depending on the particular charges, the court may impose a sentence of imprisonment up to the statutory maximum (life imprisonment). As with adults, if a higher court sentences a child to a term of imprisonment of two years or more, it must fix a non-parole period, unless it considers the fixing of such a period to be inappropriate.^[32] After a child is sentenced to imprisonment, the Adult Parole Board has the power to transfer the child administratively to serve the sentence (or a portion of the sentence) in a youth detention facility.^[33]

2.12 The youthfulness of the offender is still a ‘primary consideration’ when a higher court sentences a child under the Sentencing Act 1991 (Vic).^[36] However, this is a ‘general’ proposition only and not of ‘universal or automatic application’.^[37] In particular cases, the offender’s youth and prospects for rehabilitation ‘must be subjugated to other considerations’.^[38] These considerations include specific and general deterrence, and denunciation where, for example, the offending is particularly serious.^[39]

2.13 The ‘dual track’ system provides higher courts with the option of sentencing ‘young offenders’ (defined in section 3 of the Sentencing Act 1991 (Vic) as offenders aged under 21) who satisfy the eligibility criteria to detention in a youth justice centre, rather than an adult prison.^[40]

2.14 The ‘dual track’ system is intended to prevent immature and vulnerable offenders from entering the adult prison system. To access ‘dual track’, the court must receive a pre-sentence report and be satisfied that there are ‘reasonable prospects for the rehabilitation of the young offender’ or that the ‘young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison’.^[41] In determining whether to make a youth justice centre order, the court must have regard to the nature of the offence and the ‘age, character and past history of the young offender’.^[42]

2.15 The maximum period of detention that a court may order a young offender to serve in a youth justice centre is two years for the Magistrates’ Court and three years for the County Court or the Supreme Court.^[43] These maxima apply regardless of how many charges the young offender is sentenced for in the same proceeding.^[44]

2.16 The non-parole period is the minimum period of time that an offender sentenced to imprisonment must spend in custody before becoming eligible for parole. The Council’s analysis of higher courts data indicates that for baseline offences from 2006–07 to 2009–10, the median non-parole period across all offences was approximately 60% of the median total effective sentence.^[45]

2.17 The court must fix a non-parole period if the total effective sentence imposed on an offender is a term of imprisonment of two years or more, unless the court considers it inappropriate to do so because of the nature of the offence or the past history of the offender.^[46]

2.18 The non-parole period must be at least six months less than the term of the total effective sentence^[47] and is fixed in respect of the total period of imprisonment that an offender being sentenced for multiple offences is liable to serve.^[48]

2.19 If an offender is already serving a sentence of imprisonment for which a non-parole period has been fixed, the sentencing court must fix a new single non-parole period, taking into account the prior sentence or sentences that the offender still has to serve.^[49]

2.20 Non-parole periods are not set by the higher courts for children or ‘dual track’ offenders sentenced to detention under a youth justice centre order.

2.21 The non-parole period has multiple purposes. It can serve the interests of the community in the same way as the head sentence can, by providing for some element of community protection as well as personal and general deterrence. Punishment, specific deterrence and the offender’s prospects for rehabilitation are relevant not only to the imposition of a sentence of imprisonment but also to the setting of a non-parole period.^[50]

2.22 One purpose of a non-parole period is to increase the likelihood that the offender will be rehabilitated. However, this does not mean that when setting a non-parole period the court should impose the shortest time required for a parole board to form a proper view of the offender’s prospects of rehabilitation.^[51] While the non-parole period provides a benefit to the offender, its purpose is to serve the interests of the community rather than those of the offender.^[52]

2.23 The court must fix the length of a non-parole period by considering the gravity of the offence, any mitigating circumstances and the purposes to be served by the sentence, in the same way that such considerations are taken into account in fixing the head sentence.^[53] However, the length of the non-parole period will be different from the term of the head sentence because the purposes of a non-parole period are different from those of a head sentence, and the various considerations are given different weight.^[54]

2.24 In Power v The Queen,^[55] the High Court held that the length of the non-parole period to be fixed by the court should be the ‘minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention’.^[56]

2.25 The proportion between the head sentence and the non-parole period is not constant, and will vary from case to case. This is because the length of the non-parole period is not fixed by reference to a notionally standard proportion between the head sentence and the non-parole period,^[57] rather it must be determined by the application of principle.^[58] While there is no normal or standard non-parole period, the court will be required to explain non-parole periods that exceed the usual proportional range.^[59]

there is no fixed ratio between a head sentence and a non-parole period. In the majority of cases the proportion is between two-thirds and three-quarters, but both shorter and longer periods are found ... It all depends on the gravity of the offences and the circumstances of the offender.^[61]

2.27 Although there is no prescribed proportion between the head sentence and the non-parole period, the Council’s analysis of higher courts data, as described above, indicates that for baseline offences between 2006–07 and 2009–10, the median non-parole period across all offences was approximately 60% of the median total effective sentence.^[62]

2.28 While prior offending is considered an aggravating factor as a component in the analysis of the ‘offender’s previous character’,^[63] in accordance with the considerations in section 5 of the Sentencing Act 1991 (Vic), prior offending may also be relevant for the ‘serious offender’ provisions in Part 2A of the Act.

2.30 If the offender is a serious offender and the court considers that imprisonment for the relevant offence is justified, the court, in determining the length of the sentence:

• may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances.^[65]

2.31 Further, Part 2A of the Sentencing Act 1991 (Vic) reverses the general statutory presumption that sentences are to be served concurrently.^[66] Instead, every term of imprisonment imposed on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or other sentence imposed.^[67]

2.32 The Council considers that these serious offender provisions should operate alongside the baseline sentencing scheme.^[68]

2.33 Part 2B of the Sentencing Act 1991 (Vic) also contains aggravated sentencing provisions relating to specific repeat offenders who commit (primarily) property offences.

2.34 Where an offender has been convicted of three or more prescribed offences^[69] (whether in the same hearing or at different hearings) within a period of 10 years and the amounts involved in each offence are worth more than $50,000, the offender will be liable (upon sentencing of the third and any subsequent offence) to twice the maximum penalty that applies to that offence, or up to 25 years’ imprisonment (whichever is the lesser).^[70]

2.35 The only baseline offence to which the continuing criminal enterprise provisions apply is armed robbery, which already has a maximum penalty of Level 2 imprisonment (25 years). Consequently, the continuing criminal enterprise provisions will not alter the maximum penalty available for that offence.

2.36 The Council considers that the continuing criminal enterprise provisions should operate alongside the baseline sentencing scheme.

2.37 Subdivision 1A of the Sentencing Act 1991 (Vic) provides that the Supreme Court or the County Court may impose an indefinite term of imprisonment on an offender convicted of a ‘serious’ offence. As discussed at [1.4], each serious offence is a proposed baseline offence.

2.38 The court may impose an indefinite term of imprisonment on its own initiative or after an application by the Director of Public Prosecutions,^[71] but only if the court is satisfied that the offender is a serious danger to the community because of the offender’s character, past history, age, health or mental condition, the nature and gravity of the offence and any other special circumstances.^[72]

2.39 An offender serving an indefinite sentence is not eligible to be released on parole,^[73] and the court must not fix a non-parole period when imposing an indefinite sentence.^[74] Instead, the court must fix a ‘nominal’ sentence,^[75] being the period that the court would have fixed as a non-parole period if the court had imposed a fixed term of imprisonment.^[76]

2.40 Unlike a sentence of life imprisonment without parole, an indefinite sentence may be imposed for a serious offence that has a maximum penalty lower than life imprisonment. The indefinite sentence is also subject to judicial review at the completion of the nominal sentence.

the nominal sentence is to be fixed having regard to all those matters that would ordinarily go into the fixing of a non-parole period.^[78]

2.42 As the procedure for determining the nominal sentence is similar to that for determining a non-parole period, the Council considers that the recommended procedure for the sentencing of baseline offences^[79] should be applied to the determination of the nominal sentence. This procedure is discussed in detail in Chapter 4.

3.1 The Council recommends that a baseline sentencing scheme should operate consistently with current sentencing principles established by the Sentencing Act 1991 (Vic) and the common law. These principles include those set out in section 5 of the Sentencing Act 1991 (Vic), such as parsimony and the purposes for which sentences may be imposed (these are discussed in detail in Chapter 2). The Council also recommends that, where possible, a baseline sentencing scheme should operate consistently with current sentencing processes.

3.2 It is the Council’s view that the terms of reference do not require that a baseline sentencing scheme results in the imposition of statutory minimum or mandatory custodial sentences. The Council is of the view that, in accordance with the government’s policy objectives, the baseline level should act as a starting point for judges when sentencing a baseline offence, maintaining the judge’s discretion to move up and down from the baseline level to take into account relevant aggravating and mitigating factors.^[80]

3.3 The requirement for the retention of current sentencing principles is a theme articulated in many stakeholder submissions. One stakeholder referred to the sentencing principles in section 5 of the Sentencing Act 1991 (Vic) and submitted that those principles, in combination with the common law, ‘are more than adequate to guide a Sentencing Court to a just and appropriate disposition’.^[81]

3.4 Jesuit Social Services considered that a number of principles should be adhered to under a baseline sentencing scheme, including:

3.5 Jesuit Social Services also emphasised the importance of any baseline sentencing scheme being as simple and straightforward as possible to avoid complicating and protracting legal and court processes.^[83]

3.6 Victorian Centres Against Sexual Assault Forum also expressed similar concerns about the retention of judicial discretion and the need for any scheme to be uncomplicated.^[84]

Judicial discretion is a corner stone of the separation of powers doctrine and a substantial body of precedent in relation to sentencing matters has been developed in Victoria. We are also concerned that the proposed approaches will affect the common law sentencing principles currently applied by the judiciary.^[85]

3.8 Both Victoria Legal Aid and the Criminal Bar Association of Victoria (endorsed by Liberty Victoria) submitted that it is necessary to maintain current sentencing processes when considering how the court should apply aggravating and mitigating factors.^[86]

3.9 The need to ensure that the principles and procedures for sentencing baseline offences are as consistent as possible with current sentencing for non-baseline offences was also highlighted by the Law Institute of Victoria. It contended that negative consequences would result from the creation of two different approaches to sentencing, resulting in people being treated unequally, and that this would lead to unjust results.^[87]

3.10 The use of a baseline level as a starting point for sentencing particular offences in Victoria involves a staged approach to sentencing and is a departure from the approach to sentencing under Australian common law known variously as the ‘instinctive synthesis’,^[88] the ‘intuitive synthesis’^[89] and the ‘sentencing synthesis’.^[90] Under this approach to sentencing, the court is required to take into account all the relevant factors of a case and then arrive at a sentence, including a non-parole period.^[91]

3.11 Relevant factors include those that relate to the offence itself, such as weapon use and physical violence, and those that are personal to the offender, such as an offender’s family background and prior convictions.

3.12 The sentencing synthesis approach has been viewed by the courts as different from, and has been contrasted with, a ‘two-tier’ approach. In the ‘two-tier’ approach, the court begins at a starting point (for a head sentence or non-parole period) and then makes adjustments (additions or deductions) to this sentence having regard to relevant factors.^[92]

3.13 The majority of the High Court in Markarian v The Queen^[93] was critical of the ‘two-tier’ approach, considering that it did not take into account the ‘many conflicting and contradictory elements’ relevant to an offender.^[94] The High Court further added that to single out specific factors and provide them with ‘numerical or proportionate value’ was to ‘distort the already difficult balancing exercise which the judge must perform’.^[95]

3.14 This approach was also recently confirmed by the High Court in relation to the New South Wales standard non-parole scheme in Muldrock v The Queen.^[96] The High Court stated that the relevant section of the New South Wales legislation:

requires an approach to sentencing for Div 1A offences that is consistent with the approach to sentencing described by McHugh in Markarian v The Queen.^[97]

3.15 Of particular relevance to the application of this approach are the High Court’s comments that nothing in the New South Wales legislation ‘require[d] or permit[ted] the court to engage in a two-stage approach to the sentencing of offenders’.^[98] In the absence of such legislative prescription, the High Court held that the common law approach to sentencing, requiring a ‘sentencing synthesis’, was to be followed.

3.16 The High Court in Muldrock v The Queen,^[99] however, did not comment on whether legislation that stipulated that a court must begin at a prescribed starting point (such as that proposed for Victoria) would be valid, or whether such an approach would generate constitutional difficulties. As these issues are beyond the scope of the terms of reference, the Council has not considered them in detail.

3.17 The Victorian Court of Appeal has affirmed that a staged approach is inconsistent with the sentencing synthesis approach described in Markarian v The Queen.^[100] In Trajkovski v The Queen,^[101] Weinberg JA, delivering a judgment for the Court of Appeal, stated:

the approach that has for many years commended itself to this Court, namely that of instinctive synthesis, remains, in my view, the only basis upon which sentencing should be carried out in this State.^[102]

3.18 Of particular relevance to the baseline sentencing scheme are the Court of Appeal’s comments in the same case, on what constitutes a ‘two-tier’ or ‘staged’ approach. Weinberg JA further stated:

this approach of first grading the level of actual offending, and then nominating a sentencing range for offences of that particular grade (as well as for offences of other grades), amounts in substance to two-tier sentencing. It is closely akin to nominating a ‘starting point’ from which the ultimate sentence will be imposed, and then moving to a consideration of aggravating and mitigating factors.^[103]

3.19 It is the Council’s view that, although the baseline sentencing scheme is a staged approach, in contrast to the instinctive synthesis described in Markarian v The Queen,^[104] this will not necessarily exclude the use of a sentencing synthesis completely. While the sentencing judge will be required to adopt a baseline level as the starting point for determining sentence for a baseline offence, this does not preclude a synthesis approach to the subsequent sentencing process. For example, it is anticipated that the court will retain a ‘synthesis’ approach to determining which aggravating and mitigating circumstances are relevant to the sentence and what weight should be given to them, without specifying increments or decrements from the baseline level.

3.20 As discussed at [3.2], the terms of reference suggest that a baseline level is to be the starting point for determining a non-parole period. The Council considers that this therefore requires two fundamental assumptions:

3.21 The Council does not consider that the terms of reference require a court to apply the baseline sentencing scheme in every case involving a baseline offence. To do so would be to suggest that a court must always begin the sentencing process with the presumption that an offender should receive a sentence of imprisonment.^[105] This would be contrary to the sentencing principle of parsimony^[106] and the presumption against a custodial sentence,^[107] and would effectively create a statutory minimum or mandatory custodial sentencing scheme.

3.22 The Council has also assumed that the current practice by which a court provides a reduction of sentence in consideration of a guilty plea^[108] (where it is considered separately from aggravating and mitigating factors except where it indicates genuine remorse) will continue in cases where the baseline sentencing scheme applies. Consequently, the baseline levels recommended by the Council have been determined on the basis that they do not include a reduction in sentence for a guilty plea. This issue is discussed further at [7.14]–[7.22].

3.23 The Council has also assumed that the baseline sentencing scheme will only apply to offenders who commit a baseline offence upon or after commencement of the baseline sentencing scheme. This is based on the common law presumption that changes to sentencing laws should not operate retrospectively unless there is an express intention to do so. This presumption is also confirmed in the Charter of Human Rights and Responsibilities Act 2006 (Vic).^[109]

3.24 Before determining the recommended baseline levels for offences, it was essential for the Council to consider what the baseline level is intended to represent.

3.25 To facilitate discussion of this issue during consultation, two conceptual baseline sentencing models were proposed:

3.26 These models are also discussed in the Council’s issues paper, Baseline Sentences.^[110]

3.27 In the Combined Model, the baseline level represents the ‘typical’ example or the most common ‘type’ of each baseline offence. Under this approach, both objective and subjective factors, or factors relevant to the offence and the offender, are relevant to determining the baseline level.

3.28 As this approach captures different types of activity associated with an offence, it would usually provide different baseline levels for the one offence. There are particular issues and difficulties with multiple baselines, which are discussed in more detail in Chapter 4.

3.29 The Combined Model is similar to the approach adopted in the sentencing guidelines produced by the Sentencing Council for England and Wales. These guidelines provide different baseline levels depending on the type of activity associated with an offence.

3.30 For example, in the guidelines for assault offences,^[111] the guideline for the offence of ‘causing grievous bodily harm with intent to do grievous bodily harm’ specifies three categories of offending: lesser harm and lower culpability (category 1), greater harm and lower culpability (category 2) and greater harm and higher culpability (category 3). Factors indicating a greater degree of harm include a sustained or repeated attack on the same victim and/or the victim is particularly vulnerable. Factors indicating higher culpability include the defendant playing a leading role in a group or gang or the use of a weapon.^[112]

3.31 The most important distinction between the model employed by England and Wales and the Combined Model proposed for Victoria is that in England and Wales the factors and levels are not specified in legislation, but instead are contained within guidelines prepared by the Sentencing Council for England and Wales in consultation with the judiciary.

3.32 The courts in England and Wales must take into account these sentencing guidelines unless it is contrary to the interests of justice.^[113] However, the appeal courts in that jurisdiction have also emphasised that ‘these provisions are not intended to be applied inflexibly’,^[114] and it has never been the intention that they ‘constrain the proper exercise of individual judgment on the specific facts of the case’^[115] or require ‘slavish adherence to them’.^[116]

3.33 A system similar to that which exists in England and Wales was proposed in New Zealand by the Sentencing Council Act 2007 (NZ). However, New Zealand did not proceed with this particular proposal for Council-produced guidelines. Instead, the New Zealand Court of Appeal has developed a series of guideline judgments that offers guidance on the sentencing of particular offences.^[117]

3.34 In Victoria, the Court of Appeal has similar powers to give or review guideline judgments.^[118] The role that guideline judgments could play alongside a baseline sentencing scheme is discussed at [10.41]–[10.42].

3.35 The Objective Offence Seriousness Model is similar to the model that has been adopted in New South Wales in the application of its standard non-parole period scheme.^[119]

first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

3.37 The legislation also prescribes specific non-parole periods for particular offences^[120] that are required to be:

the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.^[121]

3.38 These prescribed levels represent the non-parole period for an offence ‘in the middle of the range of objective seriousness’.^[122]

3.39 The courts in New South Wales have interpreted the factors that are relevant to determining ‘the middle of the range of objective seriousness’ as being primarily objective factors or factors relevant to the offence only.

3.40 Objective factors may include, where relevant, such factors as weapon use or the degree of violence inflicted. Subjective factors are those that relate to the offender, such as prior convictions and family background. Under this model, the court takes into account subjective factors in determining whether a sentence should move up or down from the standard non-parole period.

3.41 In R v Way,^[123] the New South Wales Court of Criminal Appeal recognised that the separation of objective and subjective factors in sentencing was a departure from the courts’ existing practice by which all of these factors are considered together.^[124]

3.42 The Court of Criminal Appeal also considered that the distinction between an objective factor and a subjective factor may not always be clear. Some factors may be both objective and subjective, but in different ways.^[125]

3.43 There is no express provision in the New South Wales legislation – Crimes (Sentencing Procedure) Act 1999 (NSW) – that the standard non-parole period must be used as a starting point. However, prior to the High Court’s recent decision in Muldrock v The Queen,^[126] the New South Wales courts had interpreted the standard non-parole periods as being the ‘starting points for midrange offences after conviction and before adjustment’.^[127]

3.44 This application of the standard non-parole period in New South Wales had meant that when sentencing an offender for a specified offence, the court first determined whether the offence fell within the mid-range of seriousness for the offence, having regard to a number of objective factors. If the offence fell within this range, the court applied the standard non-parole period and then had regard to the (subjective) aggravating and mitigating factors prescribed in the legislation.^[128] The court then adjusted the term of imprisonment (parole and head sentence) accordingly.

3.45 If an offence did not fall within this mid-range, the standard non-parole period was used as a reference point only, in the same way that a maximum sentence is used as guidance in sentencing.^[129] The standard non-parole period was also used as guidance (that is, not as a starting point) in cases where the offender pleaded guilty. As the majority of cases resolve by way of a guilty plea,^[130] this excluded the majority of cases from strict application of the standard non-parole period scheme.

3.46 The only reasons for which the court was able to set a non-parole period that was either longer or shorter than the standard non-parole period were those referred to in section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).^[131] That section provides a list of common aggravating and mitigating factors and includes any other ‘objective or subjective factor that affects the relative seriousness of the offence’.^[132]

3.47 The High Court’s recent decision in Muldrock v The Queen^[133] determined that the New South Wales courts’ interpretation of the standard non-parole period as a starting point was incorrect, not for constitutional reasons but because of incorrect statutory interpretation. The High Court held that there was nothing in the New South Wales legislation that ‘requires or permits the court to engage in a two-stage approach’.^[134] The High Court determined that, instead of being a starting point, ‘the fixing of a non-parole period is but one part of the larger task of passing an appropriate sentence upon the particular offender’,^[135] and as a result, the standard non-parole period does not have ‘determinative significance’.^[136]

[s]ection 54B(2), read with ss 54B(3) and 21A requires an approach to sentencing for Div 1A offences that is consistent with the approach to sentencing described by McHugh J in Markarian v The Queen.^[137]

3.49 The New South Wales legislation states that when determining sentence the court should:

set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.^[138]

3.50 In recent decisions since Muldrock v The Queen,^[139] the New South Wales Court of Criminal Appeal has referred to the High Court’s judgment and accordingly used the standard non-parole period as guidance only.^[140]

Difference between New South Wales’ standard non-parole period scheme and the proposed baseline sentencing scheme

3.51 The baseline sentencing scheme that the government proposes to implement in Victoria differs from the New South Wales’ standard non-parole period scheme in that the baseline level is intended to apply as a starting point to all baseline offences,^[141] rather than to just those offences determined by the courts to be in the middle of the range of seriousness for an offence. The question of how the baseline level should apply to cases that the court considers do not come within the middle of the range of objective offence seriousness is discussed further in Chapter 4.

3.52 The baseline sentencing scheme in Victoria will also apply to the sentencing of offenders who have pleaded guilty, unlike in New South Wales where the standard non-parole scheme only applies to those offenders convicted after trial.

3.53 In relation to the issues that arose in Muldrock v The Queen,^[142] the government’s clear intention (as stated in the terms of reference) is that the baseline level in Victoria is to be a ‘starting point’, whereas there is no express mention of the standard non-parole period being a starting point in the New South Wales legislation.

3.54 There is nothing in the High Court’s decision in Muldrock v The Queen^[143] to indicate that a parliament cannot legislate the requirement that a court apply a starting point when imposing a term of imprisonment for a baseline offence, provided that this requirement is explicitly stated in the relevant legislation. However, this does not mean that a baseline sentencing scheme may not be open to challenge on other grounds.^[144]

3.55 In 2002 South Australia^[145] introduced a minimum non-parole scheme for specified offences.

3.56 In South Australia, mandatory minimum non-parole periods^[146] are prescribed for murder (20 years)^[147]and serious offences against the person (four-fifths of the length of the sentence).^[148]Serious offences against the person are defined as:

3.57 The prescribed non-parole period reflects the non-parole period for an offence at the ‘lower end of the range of objective seriousness of offences’.^[150] Courts can impose a non-parole period that is shorter than the prescribed period but only if there are ‘special reasons’.^[151]

3.58 To determine whether special reasons exist, the court must only have regard to the following matters:

• the degree to which the offender has cooperated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such cooperation.^[152]

3.59 In 2007 the Northern Territory^[153]introduced a minimum non-parole scheme for specified offences.

3.60 The Northern Territory’s standard non-parole scheme operates in a similar way to that in South Australia. The court must set a non-parole period for prescribed offences where the period of imprisonment is more than one year (unless the sentence is suspended).^[154]

3.61 The prescribed offences include murder (a non-parole period of 25 years in particular circumstances,^[155] or otherwise 20 years),^[156] certain sexual offences (a non-parole period not less than 70% of the total sentence of imprisonment)^[157] and offences against people under 16 years of age (a non-parole period not less than 70% of the total sentence).^[158] For all other prescribed offences, the non-parole period must be not less than 50% of the sentence.^[159]

3.62 The non-parole period for murder (the only offence for which a specific numerical value is set):

represents the non-parole period for an offence in the middle of the range of objective seriousness for offences to which the standard non-parole period applies.^[160]

3.63 The court may fix a non-parole period that is shorter than the standard non-parole period if exceptional circumstances exist, having regard to the following matters:

• the victim’s conduct, or conduct and condition, substantially mitigates the conduct of the offender.^[161]

3.64 In considering whether the offender is unlikely to reoffend, the court may have regard to:^[162]

• any other relevant matters^[163] specified in the relevant sentencing guidelines.^[164]

3.65 The schemes that operate in the Northern Territory and South Australia differ from the scheme in New South Wales (and also from that proposed in Victoria) in that they are essentially mandatory custodial sentencing schemes.

3.66 Queensland is currently considering implementing a standard non-parole period scheme for specified offences. In December 2010, the Queensland Government’s Attorney-General asked the Queensland Sentencing Advisory Council to provide advice on minimum standard non-parole periods for serious violent offences and sexual offences.^[165] The Queensland Sentencing Advisory Council released its final report in September 2011.^[166]

3.67 The Queensland Sentencing Advisory Council referred in its final report to the fact that, although they are not classified as such, there are effectively three forms of standard, or minimum, non-parole period schemes already in existence in Queensland:

• a minimum non-parole period of 50% of the term of imprisonment imposed that applies to an offender for whom no parole release or eligibility date has been set by the sentencing court.^[167]

3.68 The Queensland Sentencing Advisory Council considered two different approaches to implementing a standard non-parole scheme:

• a ‘standard percentage scheme’, which specifies a set percentage of the prison sentence that an offender must serve in prison before being eligible to apply for parole.^[168]

3.69 Although much of the Queensland Sentencing Advisory Council’s final report is dedicated to criticism of the introduction of any standard non-parole period scheme in Queensland,^[169] the Queensland Council expressed a preference for a standard percentage scheme. One of the main reasons for this recommendation is that this option has the most consistency with Queensland’s current sentencing regime and can be ‘recast as a new form of standard non-parole period scheme’.^[170] Accordingly, this recommended approach provides little guidance for Victoria in its implementation of a baseline sentencing scheme.

3.70 Some stakeholders expressed concern about the Objective Offence Seriousness Model. In particular, they questioned whether it would allow a court to adequately move from the baseline level, particularly in cases that are in the high or low end of offence seriousness.^[171]

3.71 This concern was balanced with the view that many stakeholders considered the Combined Model, or a model requiring defined factors, to be too prescriptive, resulting in courts having very little capacity to determine the weight that should be given to individual factors relevant to a case.^[172]

3.72 Among stakeholders who made specific submissions about the model, there was greater support for the Objective Offence Seriousness Model than for the Combined Model. For example, the Criminal Bar Association of Victoria (endorsed by Liberty Victoria)^[173] and Victoria Legal Aid^[174] both considered that the Objective Offence Seriousness Model maintains appropriate judicial discretion and is the most consistent with current sentencing procedure. This is also the model that received the most support at the legal roundtables.^[175]

3.73 Similarly, the Criminal Bar Association of Victoria (endorsed by Liberty Victoria) preferred an Objective Offence Seriousness Model, whereby the standard non-parole period represents the non-parole period for an offence in the ‘mid-range’ of objective offence seriousness.^[176]

3.74 The Criminal Bar Association of Victoria also submitted that the ‘objective’ seriousness of an offence ‘should be assessed wholly by reference to the nature of the offending, and without reference to matters personal to a particular offender or class of offenders’.^[177]

3.75 Victoria Legal Aid submitted that the baseline should reflect a ‘“neutral” example of the offence’ and that this neutral example should take into account ‘to the greatest extent possible, only the bare elements constituting that offence’.^[178] Victoria Legal Aid submitted that it should not ‘represent any factors that go beyond the elements of the offence’,^[179] and ‘there should be no expectation that each neutral example will reflect, for example, the median sentence, the halfway point or any other consistent measure’.^[180]

3.76 The Council recommends that a model similar to the Objective Offence Seriousness Model be adopted. The Council considers, however, that the model is better described as the ‘Offence Seriousness Model’.

3.77 The level of offence seriousness should be determined by factors that relate to the offence (rather than the offender). Although these factors will generally be, as considered by the New South Wales courts, objective factors, the Council considers that it is more accurate to describe them as factors relevant to the offence. Factors that are personal to the offender, which the New South Wales courts have described as primarily subjective factors, should not be relevant to the determination of offence seriousness. These factors are taken into account once an adjusted baseline has been determined by the courts. The process for determining an adjusted baseline is discussed at [4.7]–[4.9].

3.78 There may also be instances where some factors are relevant to the offence and the offender but in different ways. For example, an offender’s mental state at the time of committing the offence will be relevant to the circumstances of the offence but may also be relevant to the individual circumstances of the offender.

3.79 The Council considers that the Offence Seriousness Model is more appropriately suited to implementing the baseline sentencing scheme than the Combined Model. The Combined Model (or a similar model) would require a high level of legislative prescription resulting in courts having very little capacity to determine the weight that should be given to individual factors relevant to a case.

3.80 The level of prescription required by the Combined Model also increases the risk that uncommon but significant factors may be overlooked or certain factors may be given undue weight. Further, as the relevant factors are determined by case law, it is important that, where appropriate, there is enough flexibility for these factors to change over time.

3.81 Consistent with this approach, the Council’s recommendation is that, unlike for the New South Wales standard non-parole period scheme, the aggravating and mitigating factors relevant to the application of the baseline level in Victoria should not be prescribed in legislation.

3.82 The terms of reference asked the Council to consider whether there should be multiple baseline levels set for different offences.

3.83 Stakeholders expressed support for the proposition that there should be only one baseline level for each offence, rather than multiple baseline levels. There was concern that multiple baseline levels would result in the creation of new offences and have a significant impact both on charging and on pleading practices.

3.84 The Criminal Bar Association of Victoria (endorsed by Liberty Victoria) submitted that a regime involving multiple baseline levels (particularly multiple baseline levels as envisioned by the Combined Model) would be ‘too prescriptive and complex’.^[181] The Association also submitted that it would greatly affect the plea negotiation process because:

[b]efore agreeing to resolve a case to a plea of guilty, the defence may seek an indication from the Crown as to what baseline category the offence will be alleged to fall into. Negotiations over this question would delay the resolution of cases.^[182]

3.85 Similar concerns were expressed by Victoria Legal Aid, which contended that multiple baseline levels would lead to:

greater numbers of contested committals and pleas, and greater numbers of trials. This will have significant implications for court delays and system efficiency.^[183]

3.86 Further, Victoria Legal Aid submitted that, if multiple baseline levels were prescribed:

it is expected that police will increasingly charge with alternatives that include the aggravated version of the [offence], or will allege aggravating factual circumstances that will attract a higher baseline.^[184]

an increased number of contested matters ... negotiations to be more protracted, pleas to be longer, and an increased number of lengthier trials.^[185]

3.88 The concerns expressed about multiple baseline levels affecting pleading practices are also relevant to stakeholders’ concerns about the effects on pleading practices of a baseline sentencing scheme more generally. These concerns are discussed further at [12.1]–[12.13].

3.89 Consistent with the government’s policy objective, the Council’s approach is that the courts should retain the discretion, when determining the appropriate sentence for a baseline offence, to move up and down from the baseline level, rather than choosing between different baseline levels. Consequently, the Council considers that there should be only one baseline level for each offence.

3.90 The Council also considers that having different baseline levels for the same offence would effectively result in the creation of new offences. This outcome is even more likely with the Combined Model, given the level of specificity (in other words, the prescription of certain factors relevant to an offence) that is required under that model.

3.91 The Council also recommends that each baseline level represent an offence that is in the middle of the range of offence seriousness (assessed by considering factors related to the offence and not the offender), rather than at the lower end or high end of offence seriousness.

3.92 The Council’s view is that it is more meaningful for a court to consider an offence within the middle of the range as a starting point, thereby allowing the court to move up or down from the baseline level as it determines the appropriate sentence. If the baseline level were to represent either the bottom of the range or the top of the range, in most cases this would require a court to substantially increase or decrease the sentence, moving away from the baseline level.

3.93 The Council’s recommended approach, involving the use of the middle of the range, is consistent with the policy objective stated in the terms of reference, which refer to the baseline level as being a ‘midpoint’.^[186] Consequently, the baseline levels, discussed in detail under Recommendation 10, have been set by the Council based on this approach.

A baseline level applies when a court sentences an offender to imprisonment for a baseline offence and has determined that the fixing of a non-parole period is appropriate.

The Council recommends that there should be only one baseline level prescribed for each baseline offence.

3.94 The terms of reference also asked the Council whether any baseline offence should be ‘redefined to achieve better applicability of baseline sentences in different circumstances’.^[187]

3.95 Victorian Centres Against Sexual Assault Forum suggested that offences concerning ‘[u]nderage consensual sex between teenagers’ and ‘[s]exting being defined as transmitting child pornography’^[188] may be offences that require some redefinition.^[189] This issue was also raised by stakeholders at one of the roundtables held by the Council.^[190]

3.96 Victoria Legal Aid did not support the redefinition of offences, submitting that this ‘will have a significant impact on charging practices and plea negotiations’^[191] and will not ‘result in greater consistency in sentencing’.^[192]

3.97 Offending behaviour often involves the commission of a number of interrelated criminal acts that can constitute different offences. The redefinition of one offence, or several offences, may therefore have a consequential impact on the charging and pleading practices of other offences. Consequently, it is important that, should any of the baseline offences require redefinition, this occurs as part of a broader review of offences.

3.98 There is currently a wide-ranging review of the Crimes Act 1958 (Vic), including a review of all offences, being undertaken by the government. This review is the result of a commitment made by the former Attorney-General but has continued under the current government. In light of this, the Council considers that the examination of whether certain offences should be redefined is more appropriately dealt with by this review.

4.1 Under the current procedure for sentencing in Victoria, when a court wishes to impose a sentence of imprisonment on a single charge in a case, the court first determines the sentence for that charge and then, if considered appropriate (and if the sentence is longer than one year), fixes a non-parole period (NPP).^[193]

4.2 Where a case involves multiple charges that warrant a sentence of imprisonment, the court first determines a sentence for each charge and then makes orders for concurrency and/or cumulation of those sentences in relation to the sentence determined to be the ‘base’ sentence (usually being the longest sentence imposed). The effect of those orders is to produce a total effective sentence (TES). If considered appropriate, the court will then fix a single non-parole period for the case as a whole.^[194]

4.3 The implementation of a baseline sentencing scheme, requiring the court to use a baseline level as a starting point for sentencing a baseline offence, represents a departure from the current sentencing procedure described above. This is because in order to give practical effect to the policy behind the baseline sentencing scheme, the court will be required to determine the non-parole period (being the ‘minimum’ sentence referred to in the terms of reference)^[195] before the head sentence. Further, this will also require a departure from the current ‘sentencing synthesis’ approach (discussed at [3.10]–[3.19]).

4.4 Where a case does not contain any charges of a baseline offence, the baseline sentencing scheme will not apply, and the court will sentence an offender consistent with current procedure.

4.5 The majority of offenders sentenced in the higher courts for a proposed baseline offence are sentenced for more than one charge at the sentencing hearing.^[196] It is therefore important that the baseline sentencing scheme is applied consistently, not only to cases where there is one charge of a baseline offence, but also to those where there are multiple charges.

4.6 The Council has considered how the baseline sentencing scheme should apply in a number of different circumstances, being:

Cases with one charge of a baseline offence that receives a sentence of imprisonment

4.7 It is useful to consider the application of the Offence Seriousness Model in the context of a particular baseline offence (where that offence is the only charge in a case).

4.8 For example, if a defendant were charged with and convicted of armed robbery, the court would adopt the following process:

a. After determining that a sentence of imprisonment with a non-parole period is warranted,^[197] the court would start at the baseline level for armed robbery, which is eight years,^[198] to determine the non-parole period.

f. Based on a synthesis of all these factors, the court would determine and declare an ‘adjusted baseline’. If the case only has one charge receiving imprisonment, this adjusted baseline would become the non-parole period for the case, and the court would then determine an appropriate head sentence.^[199]

4.9 This example refers to different factors that are relevant to the offence and then the offender. However, as referred to in the Council’s discussion on R v Way,^[200] there may be situations where some factors may be relevant to both the offence and the offender but in different ways, such as:

• mental illness or disability that is ‘causally related to the commission of the offence’.^[201]

4.10 As demonstrated by the example above, the relevant aggravating and mitigating factors of a case will determine how far a court moves up or down from the baseline level. These factors may be relevant to both offence and offender characteristics.

4.11 The Council recommends that these factors should not be specified in legislation (unlike for the New South Wales standard non-parole period scheme). The Council considers that to do so would risk specific aggravating or mitigating factors being given more weight than others and also risk important factors being potentially overlooked. Increased prescription may also limit a court’s ability to take into account the specific, unique circumstances of a case.

4.12 The Council considers that the specification of aggravating and mitigating factors is not necessary to achieve the effective implementation of the baseline sentencing scheme.

4.13 The Council notes that there was also general consensus from stakeholders that aggravating and mitigating factors should not be specified in legislation.^[202]

Recommendation 5 – Application of the baseline level to cases with one charge

The adjusted baseline will then be fixed as the non-parole period and the court must then determine a head sentence.

4.14 A major challenge for the implementation of a baseline sentencing scheme is determining how a baseline level (and which baseline level) should apply to cases where multiple charges receive a term of imprisonment. This includes cases with multiple baseline charges or a combination of baseline and non-baseline charges.

4.15 The Council considered two options as to which baseline level should apply in cases with multiple charges of baseline offences. Those options were to apply:

4.16 The ‘base sentence’ in a case is the sentence in relation to which orders for concurrency and/or cumulation of other sentences are made. Base sentence is not a term that is derived from legislation, but from sentencing practices adopted by the courts.

4.17 In the majority of cases, the base sentence will be the longest sentence and will also be the sentence for the most serious offence. In those circumstances, the base sentence offence will also have the highest baseline level. There may be some cases, however, where the base sentence offence is not the most serious offence in a case, but still represents the most serious criminal behaviour in that case, and as a result receives the longest sentence. For example, if an offender is charged with aiding and abetting an aggravated burglary and also recklessly causing serious injury, the injury charge may represent the offender’s most serious criminal behaviour and therefore may receive the longest sentence. Consequently, in that particular case, the base sentence offence will not be the offence with the highest baseline level.

4.18 A majority of stakeholders supported the proposition that where there are multiple baseline charges in a case and the base sentence offence is a baseline offence, the relevant baseline level to be applied by the courts should be that of the base sentence offence.^[203] This was considered the preferred approach regardless of whether a case involved an offence with a higher baseline level than the base sentence offence. This approach was also considered to be the most consistent with current sentencing processes^[204] and would enable a sentence to be ‘more suitably tailored to the most relevant offence’.^[205]

4.19 Concern was expressed that if the highest baseline level in a case was always used (even when it wasn’t the base sentence offence), this would impact negatively on pleading practices. The Criminal Bar Association of Victoria (endorsed by Liberty Victoria) suggested that one consequence of choosing the highest baseline would be that the defence would:

[pressure] the prosecution to proceed only on lesser offences. The prosecution would then be under pressure to withdraw the charge, despite evidence capable of sustaining it.^[206]

4.20 The Criminal Bar Association added that, if courts had to use the highest baseline level in each case, the resolution of cases ‘would likely be adversely affected’,^[207] and if a charge with the highest baseline level did not reflect the seriousness of the overall offending:

an accused would be reluctant to plead guilty to that charge if by doing so they would automatically expose themselves to the application of that baseline.^[208]

4.21 As a result, it was submitted that ‘cases may be contested where otherwise they would have settled’.^[209]

4.22 The Council recommends that the baseline level of the base sentence offence^[210] should be the applicable baseline level in cases with multiple baseline offences. This approach is the most consistent with current sentencing procedure and reflects the overall seriousness of the offending.

4.23 Using the baseline level of the base sentence also limits potentially negative consequences identified by stakeholders, such as changes to current pleading practices.^[211]

4.24 A case example illustrating the Council’s recommended approach is given below.

Around 3am one morning, X and D go to C’s house with the intention of stealing property. D uses a crowbar to open a door and upon entering the house, D pushes C violently to the ground and demands money while threatening him with the crowbar.

X stands outside the house and keeps watch but is unaware that D is threatening (or intends to threaten) C with the crowbar.

Both D and X are charged with, and plead guilty to, armed robbery, aggravated burglary and assault. X is charged as a principal offender with D in the commission of the offences on the basis of aiding and abetting (for the aggravated burglary offence) and an extended common purpose (for the armed robbery and assault offences).

The court determines that armed robbery is the base sentence offence for D’s case but aggravated burglary is the base sentence offence for X. The court therefore applies the baseline level for armed robbery to D’s case and the baseline level for aggravated burglary to X’s case.

4.25 Where a case has multiple offences, including baseline offences, but the base sentence offenceis not a baseline offence, the Council recommends that the baseline sentencing scheme should not apply. The court would then sentence an offender consistent with the current procedure.

4.26 This approach is consistent with the recommended approach for multiple baseline offences (that the baseline level of the base sentence offence should always apply) because the base offence determines the overall seriousness of the offending behaviour.

4.27 The concerns expressed by stakeholders in relation to which particular baseline level to use in multiple offence cases are similarly relevant to this issue. That is, applying the highest baseline level, rather than the baseline level of the base sentence offence, may have a potential negative impact on pleading practices.

4.28 A case example using the Council’s recommended approach is illustrated below.

D believes C owes him money after a car deal that has gone wrong. D goes to C’s house with some of his mates with the intention of demanding the money from C. After breaking into C’s house, D draws a small replica gun from his pocket and points it at C, threatening and abusing him. D tells C that he has to pay the money by a certain date. D indicates that if C goes to the police, that ‘would be the end of him’. D is convicted of one charge of aggravated burglary (a baseline offence) and one charge of blackmail (a non-baseline offence).

The court determines that in this case the blackmail charge should be the base sentence offence as it is the more serious of the criminal acts. As blackmail is not a baseline offence, the baseline scheme does not apply in this case and the court sentences D in accordance with current procedure.

4.29 In addition to determining which baseline level should apply in cases with multiple baseline offences, the Council has also considered how the baseline level could apply in these cases. To illustrate the different options for sentencing using a baseline level in cases with multiple charges, the following example will be used.

D breaks into C’s house at night while she is sleeping, intending to rape her. After raping C, D steals her purse from a table near the front door. As he is leaving the house, D is confronted by C’s neighbour, X. D then assaults X, causing him injury, and escapes.

D is charged with, and pleads guilty to, one charge of rape, one charge of aggravated burglary, one charge of causing injury and one charge of theft.

4.30 All of the options presuppose the court having determined to impose a sentence of imprisonment and a non-parole period for the base sentence offence charge and at least one other charge.

Option one: courts determine sentence and non-parole period for each charge (New South Wales approach)

4.31 One approach is for the sentencing judge to determine a non-parole period (using the baseline level as a starting point) and a head sentence for each charge in the case. The sentencing judge then makes orders for cumulation and concurrency to reach a total effective sentence and a non-parole period for the whole case.

4.32 This is the approach adopted by the courts in New South Wales in the application of the standard non-parole period scheme. However, this sentencing approach was already being applied to multiple charge cases before the introduction of standard non-parole periods^[212] and also continues to be applied to cases that do not contain offences to which a standard non-parole period applies. As a result, it was more easily integrated into the existing sentencing procedure. The difference is that for cases that have offences to which the standard non-parole period applies, the courts must also consider the legislated levels.

4.33 Unlike in New South Wales, in Victoria this approach would represent a significant departure from current sentencing procedure where only one non-parole period is set for the case as a whole.

4.34 Further, in New South Wales, if the court finds that the particular example of the offence before it does not fall within the middle of the range of objective seriousness, the standard non-parole period does not apply. Consequently, setting a non-parole period for each charge in those circumstances does not involve the standard non-parole period scheme.

4.35 In Victoria, however, as it is the government’s clear policy objective that the baseline sentencing scheme is to apply to all baseline offences (regardless of whether or not the particular example before the court is in the middle of the range of seriousness), the court would have to engage in a protracted process of considering the baseline level for each charge of a baseline offence receiving a sentence of imprisonment, in order to determine individual non-parole periods.

4.36 Figure 1 demonstrates how this approach could be applied to Case Example 3. The steps are identified by letter (A to I):

4.37 The judge first determines the non-parole period for charge one (A) using the baseline level for that offence as a starting point, and adjusts the non-parole period up or down from that baseline level by taking into account the aggravating and mitigating circumstances of the case. A head sentence is then fixed (B) having regard to the non-parole period fixed for that charge.

4.38 This process is repeated for charge two (C and D). As charge three is not a baseline offence, the non-parole period is fixed without using a baseline level as a starting point (E and F). As charge 4 is a non-baseline offence (and the sentence to be imposed is too low for a non-parole period), a head sentence only is fixed (G). Orders for concurrency and/or cumulation are made to determine the total effective sentence (H), and a non-parole period for the case as a whole is determined and set (I).

Figure 1: Option one – sentencing procedure for applying the baseline level

4.39 Under this approach, the court determines a non-parole period, but not a head sentence, for each charge. The court then makes orders for cumulation and concurrency for the non-parole periods and sets a single non-parole period for the case as a whole, and then determines a total effective sentence.

4.40 The judge first determines a non-parole period for each offence (A to C) and then makes orders for concurrency and/or cumulation to reach a non-parole period for the case as a whole (D). The judge then determines a total effective sentence for the case based on the non-parole period (E). This could also include consideration of any periods of imprisonment that are too short to allow the imposition of an individual non-parole period.

4.41 One problem with this approach is that the non-parole period does not account for charges that might receive a sentence that is too short to fix a non-parole period. It also does not provide the necessary transparency in the sentencing process that requires identification of individual sentences and their effect on the total effective sentence.

4.42 Figure 2 illustrates how this approach would apply to Case Example 3, resulting in:

Figure 2: Option two – sentencing procedure for applying the baseline level

4.43 Option three applies one baseline level to a case as a whole when setting the non-parole period (F) after sentences for each charge have been fixed (A to D) and orders for concurrency and/or cumulation have been made to reach the total effective sentence (E). An additional measure could be the requirement that the court is to have regard to any relevant baseline level in the setting of the sentence for each charge (but the baseline level as a starting point would not apply until the setting of the non-parole period at the end of the process for the whole case).

4.44 This option potentially requires the least departure from current sentencing procedure because the non-parole period is not set before the sentences for each charge have been determined. However, it means that the baseline level, which is determined for an offence, is effectively being applied to the case as a whole. This approach could also be criticised for the fact that in multiple charge cases, the baseline level may be unlikely to have any influence on the final non-parole period.

4.45 Figure 3 illustrates how this approach would apply to Case Example 3, resulting in:

Figure 3: Option three – sentencing procedure for applying the baseline level

Option four: determine an adjusted baseline for the base offence then a non-parole period for the case as a whole

4.46 In option four, the court uses the prescribed baseline level of the base offence as the starting point for determining an adjusted baseline sentence, taking into account the aggravating and mitigating circumstances of the case, including any discount for a plea of guilty or for assistance provided by the offender to authorities.

4.47 After setting an adjusted baseline for the base sentence offence (A), the court fixes a head sentence for the base sentence offence (B). The court then determines a sentence for each other charge, taking into account the same aggravating and mitigating factors (C, D and E). The court then makes orders for concurrency and/or cumulation between those sentences and the base sentence to reach a total effective sentence (F). The court then fixes a non-parole period for the case as a whole based on the total effective sentence (G), ensuring that this is no less than the adjusted baseline.

4.48 This option allows the baseline level to be used as a starting point while also having an influence on the overall sentence. It also maintains the current sentencing process in relation to making orders for concurrency and/or cumulation (or partial cumulation) in relation to the base sentence.

4.49 Figure 4 illustrates how this approach could be applied to Case Example 3, resulting in:

Figure 4: Option four – sentencing procedure for applying the baseline level

4.50 The four options presented above were developed by the Council alongside its process of consultation. However, in the time available for this project, it was not possible to present the specific options to stakeholders for their consideration. Consequently, the comments and submissions from most stakeholders do not directly address the issue of which of these options is preferred.

4.51 Victoria Legal Aid submitted, however, that in cases where there are multiple offences but only one baseline offence, a sentence should first be imposed for the baseline offence and then sentences ‘layered on top for additional offences to determine an aggregate sentence’.^[213]

4.52 The Council recommends option four as the method for applying the baseline level to the sentencing process, in accordance with Table 1 below.

4.53 Option four has a number of advantages. Firstly, it can be applied consistently to cases where a single charge receives a sentence of imprisonment, or to cases where multiple charges receive sentences of imprisonment.

4.54 Further, for cases where multiple charges receive a sentence of imprisonment, option four does not require the court to set a non-parole period for each of those charges (as occurs in New South Wales). Option four also does not require the court to determine an adjusted baseline for each baseline offence (discussed at [4.35]). In the New South Wales approach (option one), any potential benefit of greater transparency is outweighed by greater complexity and the possibility of technical errors (which may be appellable errors) relating to calculations.

4.55 Option four also addresses the issue of the baseline level representing a particular offence, not the case as a whole. Under this option, the baseline level is considered at the beginning of the sentencing process (representing the ‘starting point’), and its influence flows through to the total effective sentence and the non-parole period for the case.

4.56 The Sentencing Act 1991 (Vic) provides that if an offender is convicted of two or more offences ‘founded on the same facts, or form[ing], or [that] are part of, a series of offences of the same or a similar character’,^[214] the court may impose an aggregate (single) sentence ‘in place of a separate sentence of imprisonment in respect of all or any two or more of them’.^[215] The court cannot impose an aggregate sentence in relation to serious offenders (under Part 2A of the Sentencing Act 1991 (Vic)) and offenders who have committed an offence while on parole.^[216] Serious offenders are defined as serious sexual offenders, serious violent offenders, serious drug offenders and serious arson offenders.^[217] The serious offender provisions are discussed at [2.28]–[2.32].

4.57 Aggregate sentences are appropriate in cases with a large number of incidents that involve a similar set of circumstances. For example, they may be particularly appropriate where there has been a series of charges of fraud or obtaining financial advantage by deception.^[218]

4.58 Even though aggregate sentencing is designed to prevent the courts from having to impose an individual sentence for numerous similar charges, the utility of aggregate sentences has been limited by the Court of Appeal. In Director of Public Prosecutions v Felton,^[219] the Court of Appeal determined that when imposing an aggregate sentence, a court is still required to consider ‘the sentence that would have been imposed’ had separate sentences been ‘imposed in respect of each offence’^[220] and ‘whether the sentences imposed should be concurrent or should have some degree of cumulation’.^[221]

4.59 As a consequence of this decision, aggregate sentences are infrequently imposed by the County Court and the Supreme Court. Further, due to the nature of the baseline offences and the fact that they are not available for the sentencing of ‘serious offenders’ under Part 2A of the Sentencing Act 1991 (Vic), it would be particularly unusual for the court to impose an aggregate sentence in relation to a baseline offence. The Council’s analysis of higher courts sentencing data from 2006–07 to 2009–10 indicates that for all cases involving proposed baseline offences (where the baseline offence was the principal proven offence), the court imposed aggregate sentences in only 14 cases.^[222]

4.60 The Council considers that aggregate sentencing is inconsistent with the baseline sentencing scheme from both a practical and a policy perspective. From a practical standpoint, the baseline sentencing scheme is unable to be applied to aggregate sentencing as there is no scope for the determination of an adjusted baseline by the courts.^[223] From a policy perspective, the Council considers that the original policy intention of aggregate sentencing, to prevent the court from having to specify individual sentences for each charge, is in conflict with one of the main purposes of the baseline sentencing scheme, being to provide greater transparency in sentencing practices.

4.61 The Council therefore recommends that aggregate sentencing should not be available when sentencing under the baseline sentencing scheme.

4.62 A rolled-up charge concerns multiple instances of an offence arising out of the same factual circumstances. With the consent of both the Crown and the accused, and where an accused person pleads guilty, the allegations may be ‘rolled-up’ into a single charge, attracting a single penalty. This does not affect the maximum penalty for a single offence that can be imposed.

4.63 A rolled-up charge differs from a representative charge in that a representative charge is one charge that refers to multiple incidents of similar conduct.

4.64 The Council recommends that the baseline sentencing scheme should also apply to cases involving rolled-up or representative charges. The fact that a charge may be representative or rolled-up may be a relevant consideration for the sentencing judge when determining whether, and by how much, the sentence should depart from the baseline level.

Recommendation 6 – Application of the baseline level to cases with multiple charges

Application of the baseline level to cases with multiple charges and offences, where a baseline offence is not the base offence

The Council recommends that aggregate sentencing should not be available in cases with baseline offences.

5.1 The Law Institute of Victoria submitted that there should be a general ‘departure clause’ similar to that in section 125(1) of the Coroners and Justice Act 2009 (UK), such that the baseline sentencing scheme should apply ‘unless the court is satisfied that it would be contrary to the interests of justice to do so’.^[224]

5.2 Given that the baseline sentencing scheme will apply to the sentencing of all baseline offences where the court intends to impose a sentence of imprisonment, the Council considers that such a departure clause would frustrate the policy objective of the scheme.

5.3 As stated throughout this report, the Council considers that the baseline level is not a mandatory custodial sentence nor a statutory minimum (which may require scope for such an exclusion) but a prescribed starting point for determining the appropriate non-parole period. It is anticipated that, in exercising its sentencing discretion (and in accordance with the interests of justice), a sentencing court will impose a sentence considerably lower than the prescribed baseline level if the circumstances in a case are particularly mitigating.

5.4 The baseline sentencing scheme will apply to ‘serious’ and ‘significant’ offences under the Sentencing Act 1991 (Vic). Some significant offences, such as aggravated burglary, can be heard and determined summarily, but they are not considered ‘significant’ offences (for the purposes of the Act) as the definition of ‘significant offence’ excludes those offences when ‘heard and determined summarily’.^[225]

5.5 The definition of ‘serious offence’, however, does not contain this express exclusion, and there are a number of serious offences that can also be heard and determined summarily. These are making a threat to kill,^[226] abduction or detention,^[227] assault with intent to rape,^[228] incest – sibling^[229] and abduction of a child under the age of 16.^[230]

5.6 The Magistrates’ Court expressed concern that, because the definition of ‘serious offence’ does not expressly exclude serious offences when heard and determined summarily, the baseline sentencing scheme might apply to the sentencing of those serious offences when they are heard and determined in the Magistrates’ Court. The Magistrates’ Court submitted that:

[i]f legislation requiring the baseline sentences was not qualified to exclude those offences when tried in the summary jurisdiction, the Court would expect those sentences to be out of the range of this jurisdiction. This would result in such matters being listed for contested committals.^[231]

5.7 In other Australian jurisdictions, such as New South Wales^[232] and South Australia,^[233] the standard non-parole periods do not apply to offences heard and determined summarily.

5.8 In its recent advice to the Attorney-General, the Queensland Sentencing Advisory Council also recommended that any standard non-parole scheme should only apply to ‘offenders convicted on indictment of an offence’ and should therefore ‘exclude matters dealt with summarily’ in the Magistrates’ Court.^[234]

5.9 Consistent with the government’s intention that the baseline sentencing scheme should apply to serious offending, the Council’s recommendation is that the baseline sentencing scheme should not apply to the sentencing of baseline offences when they are heard and determined summarily, regardless of whether or not an offence is defined as a ‘serious offence’ for the purposes of the Sentencing Act 1991 (Vic).

5.10 The Council’s recommended baseline levels are based on their application in the higher courts. The baseline level reflects an offence in the middle of the range of seriousness (assessed by reference to offence factors). It is likely that such an offence would be heard and determined in the higher courts. If the baseline levels were intended to apply to courts of summary jurisdiction, different levels would need to be set to take into account the Magistrates’ Court’s jurisdiction and the level of seriousness of offences for which the Magistrates’ Court determines sentences.

5.11 The Children’s Court is a summary jurisdiction court. As the sentencing of offences heard and determined summarily will be excluded from this jurisdiction, all offenders sentenced in the Children’s Court will be excluded from the baseline sentencing scheme. There was strong support from stakeholders for this recommendation.^[235]

5.12 The process of sentencing children in the higher courts is discussed in Chapter 2.

5.13 As discussed at [2.13]–[2.15], certain offenders aged 18 to 20 sentenced in the higher courts may be ordered to serve a sentence of detention in a youth justice centre, if they satisfy the eligibility criteria for the ‘dual track’ system.^[236]

5.14 A number of stakeholders expressed concern about the application of the baseline sentencing scheme to young people.^[237]

5.15 Jesuit Social Services specifically commented on the importance of the ‘dual track’ system, submitting that ‘[r]ecognition of the vulnerability of young people in general and specifically within the adult prison system is at the core of this fundamental protection’.^[238] It further recommended that:

protection is provided to ensure that the operations of any baseline sentence regime [do] not negatively impact on the ‘dual track’ system for young people 18–21 years by forcing sentence lengths beyond eligibility for detention in youth justice centres.^[239]

5.16 The Council notes that a court does not fix a non-parole period when sentencing ‘dual track’ offenders to detention in a youth justice centre.^[240] As discussed at [3.20]–[3.21], the baseline sentencing scheme will only apply when a court has determined that a sentence of imprisonment for a baseline offence is warranted, and that the imposition of a non-parole period is appropriate.

5.17 A court’s determinations to impose a sentence of imprisonment for a baseline offence and a non-parole period in respect of that sentence are threshold matters for the baseline sentencing scheme. If these determinations are not made, the baseline sentencing scheme cannot apply in the way recommended by the Council.

5.18 Consequently, young offenders (aged 18 to 20) sentenced by the higher courts under the ‘dual track’ system to youth justice detention should be excluded from the baseline sentencing scheme.

5.19 As discussed at [2.7]–[2.12], offenders aged 10 and over, but under the age of 18 at the time of committing an offence, may be sentenced to adult imprisonment by the higher courts in certain circumstances.^[241]

5.20 The Council’s sentencing data indicate that from 2000 to 2009, there were only a small number of children sentenced by the higher courts,^[242] and an even smaller fraction of that number received a sentence of imprisonment, approximately two children a year.

5.21 The New South Wales standard non-parole period scheme does not apply to an offender who was under 18 years of age at the time the offence was committed.^[243]

5.22 Similarly, the South Australian minimum non-parole period does not apply to youth offenders (persons aged 10 to 18),^[244] ‘unless the youth is sentenced as an adult or is sentenced to detention to be served in a prison or is otherwise transferred to, or is ordered to serve a period of detention in, a prison’.^[245]

5.23 In the Northern Territory, if a child is sentenced by the Supreme Court to a term of imprisonment (not detention), the court may fix the non-parole period it considers appropriate and is not constrained by the minimum non-parole periods fixed by the Sentencing Act 1995 (NT).^[246]

5.24 In its recent advice to the Attorney-General, the Queensland Sentencing Advisory Council also recommended that any standard non-parole period scheme should only apply to ‘offenders aged 18 years or over at the time of the commission of the offence’.^[247]

5.25 The majority of stakeholders were supportive of the Council’s interpretation of the terms of reference that baseline sentencing would not apply to the Children’s Court or offenders sentenced to youth detention. However, a number of stakeholders also expressed concern about the application of a baseline sentencing scheme to children and young people sentenced to imprisonment in the higher courts.

5.26 Victoria Legal Aid^[248] and Youthlaw^[249] strongly submitted that the baseline sentencing scheme should not apply to children and young people at all, regardless of the jurisdiction in which they are sentenced. The Criminal Bar Association of Victoria (endorsed by Liberty Victoria) and the Law Institute of Victoria expressed that the baseline sentencing scheme should not apply to young offenders.^[250] Similar concerns about the application of the baseline sentencing scheme to children were also expressed at the roundtables.^[251]

5.27 The objective of the baseline sentencing scheme is to provide a starting point for the judicial determination of the appropriate non-parole period when imposing a sentence of imprisonment for a baseline offence. It is arguable, therefore, that in determining the adjusted baseline, the court’s consideration of mitigating factors includes sufficient scope to account for the specific mitigating factors that are unique to young offenders.

5.28 A number of stakeholders, however, did not consider this reliance upon judicial discretion as an adequate protection, especially for children.^[252] The fact that an offender is a child was considered by stakeholders to be more than simply a mitigating factor that should be taken into account by the court in moving down from the baseline level. Some stakeholders considered that children were in a special category, over and above other mitigating factors (such as mental impairment and a lack of prior offending), that required children to be specifically excluded from the baseline sentencing scheme in order to avoid unjust consequences.^[253]

baseline sentences should not apply to children in any jurisdiction given that the baseline sentencing proposal runs counter to sentencing priorities set out in sections 361 and 362 of the Children, Youth and Families Act 2005.^[254]

5.30 Victoria Legal Aid also submitted that, consistent with that Act and with key international instruments regarding the detention of children, the baseline sentencing scheme should not apply to children:

Imprisonment of a child shall only be used as a measure of last resort, for the shortest appropriate period of time and should be limited to exceptional cases.^[255]

5.31 The Council considers that the particular vulnerability and needs of children are more than just factors to be taken into account by a court when sentencing. The development of an entirely separate institution and framework for the prosecution and sentencing of most offending by children^[256] indicates that a child’s emotional and developmental maturity constitutes far more than a mitigating factor.

5.32 The Council agreed with the substantial stakeholder feedback, as described in [5.28], that children are in a special category, over and above other mitigating factors, that requires specific exclusion from the baseline sentencing scheme in order to avoid unjust consequences.

a child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child’s rehabilitation.

every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

5.35 The Council considers, however, that offenders aged over 18 years who are sentenced to imprisonment in the higher courts (not including those offenders sentenced to youth detention under the ‘dual track’ system) should be subject to the baseline sentencing scheme.

5.36 The Council considers that the intention of the baseline sentencing scheme is that the baseline level is a starting point, and the court will continue to take into account, where relevant, the youthfulness of an adult offender as a mitigating circumstance.

5.37 This recommendation is dependent on the assumption that the baseline sentencing scheme will only apply once the court has determined that a sentence of imprisonment and a non-parole period are appropriate. Therefore, in situations where the court has determined that an offender’s youth means a sentence of imprisonment is inappropriate, the baseline sentencing scheme will not apply.

[b]aseline sentences will apply for serious offences as defined in the Sentencing Act 1991 (Vic) and for additional offences such as arson, recklessly causing serious injury, aggravated burglary and major drug trafficking.^[257]

6.2 The additional offences referred to were subsequently incorporated^[258] into the Sentencing Act 1991 (Vic) as ‘significant’ offences. A full list of these offences is provided in Appendix 2.

6.3 The Council’s recommendations concerning exclusions from the baseline sentencing scheme are discussed in Chapter 5. Consistent with the government’s intention that the baseline sentencing scheme should apply to serious offending, the Council considers that baseline levels should not apply to the sentencing of baseline offences when they are heard and determined summarily (see [5.4]–[5.12]).

6.4 While the terms of reference do not request the Council’s advice on whether particular offences should be excluded from the proposed baseline sentencing scheme, some stakeholders expressed views on this issue.

6.5 As the Council was not asked to advise on this issue, it makes no recommendations as to the exclusion of offences. However, it notes the views of stakeholders below.

6.6 Victoria Legal Aid submitted that the offence of making a threat to kill^[259] should be removed from the baseline scheme altogether (that is, not just when it is heard and determined summarily). Victoria Legal Aid contended that when the offence of making a threat to kill is heard in the higher courts, it is commonly heard ‘alongside other significant offences’^[260] and therefore, applying the baseline to this offence would ‘place a significant burden on the higher courts and make a serious contribution to court delays’.^[261]

6.7 The Council notes that Victoria Legal Aid’s concerns about court delays may be addressed by the Council’s recommendations in relation to the procedure for baseline sentencing in cases involving multiple baseline offences, that is, by the sentencing court applying the baseline level of the base sentence offence (see [4.22]–[4.24]).

6.8 In most cases, due to the serious nature of the offending, where the offence of making a threat to kill is charged with other baseline offences in a case, it is unlikely to be the base sentence offence, and consequently, the baseline level for making a threat to kill will not be applied in that case. There have been very few cases where making a threat to kill has been the principal proven offence in the higher courts.^[262]

6.9 From 2008–09 to 2009–10, there were 25 cases of making a threat to kill where that charge was the principal proven offence in the higher courts, representing 21% of all making a threat to kill cases in the higher courts. This compares with 94 cases that included a charge of making a threat to kill, where that charge was not the principal proven offence, representing 79% of all making a threat to kill cases in the higher courts.

6.10 Some stakeholders also recommended that the baseline sentencing scheme should initially only apply to a limited number of serious offences. The Law Institute of Victoria submitted that a trial of key offences would:

allow the government to assess the impact of the scheme, and provide necessary additional resources to those aspects of the criminal justice system which will be most affected – namely, the courts, Victoria Legal Aid, the OPP and corrections.^[263]

6.11 The Law Institute of Victoria also submitted that if a baseline sentencing scheme is to be introduced (which it opposed), the scheme should apply to only ‘the most serious, repeat offending’^[264] and ‘where the court has decided that a sentence of immediate, full time imprisonment is appropriate, in excess of five years’.^[265]

6.12 The Criminal Bar Association of Victoria (endorsed by Liberty Victoria) also supported a trial of one offence or a limited number of offences, for example, murder.^[266] The Association suggested that the impact of the baseline sentencing scheme on this offence could then be ‘monitored and evaluated prior to further offences being added to the scheme’.^[267]

6.13 Victoria Legal Aid also supported a trial of key serious offences, rather than the baseline sentencing scheme applying to all ‘serious’ and ‘significant’ offences, to take into account the departure from current sentencing practices and to allow adjustment for this. Victoria Legal Aid suggested that the trial should be limited to the following offences:

6.14 The Victorian Aboriginal Legal Service also suggested that consideration be given to removing offences:

such as manslaughter and murder ... because of the great variability in circumstances involving these crimes which makes it difficult to define an appropriate standard.^[269]

6.15 There were differing views expressed by stakeholders as to whether any other offences should be added as baseline offences. Some stakeholders, such as the Criminal Bar Association of Victoria (endorsed by Liberty Victoria) and the Law Institute of Victoria, did not support any addition to the proposed list of offences, instead proposing a reduced number as discussed above.^[270] Others, such as Working Against Culpable Driving, proposed additional offences,^[271] while Victoria Legal Aid supported adding further offences but only after an initial trial of the baseline sentencing scheme.^[272]

6.16 There was strong support from victim advocacy groups^[273] and, in particular, the Working Against Culpable Driving organisation^[274] for inclusion of the following two further offences:

6.17 Representatives from Working Against Culpable Driving were of the view that culpable driving causing death was just as serious, if not more serious, than the offence of manslaughter and should be treated as such.^[277] There were also concerns expressed that if dangerous driving causing death were not also added as a baseline offence, then many offenders charged with culpable driving causing death would be more likely to plead to dangerous driving causing death.^[278]

6.18 Victoria Legal Aid supported the inclusion of culpable driving causing death only if the baseline sentencing scheme continued beyond the initial trial period suggested in its submission.^[279]

6.19 Some stakeholders, while not expressing a view on the addition of culpable driving causing death as a baseline offence, acknowledged that if it were to be added, there were grounds for also adding dangerous driving causing death in order to maintain the relationship between the offences and avoid unwarranted changes to pleading practices.^[280]

6.20 Victoria Legal Aid proposed that the drug offences of cultivation of a large commercial quantity of narcotic plants (which has a maximum penalty of life imprisonment),^[281] and cultivation of a commercial quantity of narcotic plants (which has a maximum penalty of 25 years’ imprisonment)^[282] should be included in a baseline sentencing scheme, on the proviso that the scheme continues beyond an initial trial.^[283]

6.21 The reasons submitted by Victoria Legal Aid for these inclusions are that the drug cultivation offences:

• suffer from a perception that the community’s view is that sentencing for these offences is inconsistent or too lenient.^[284]

6.22 Two other serious drug offences, trafficking in a large commercial quantity of a drug of dependence and trafficking in a commercial quantity of a drug of dependence, are included in the list of baseline offences. These offences also contain the same maximum penalties (respectively) as the penalties for the proposed cultivation offences.

6.23 A participant at the Victim Advocacy Groups Roundtable submitted that the offence of stalking^[285] should be added to the proposed list of baseline offences.^[286]

6.24 Stalking has a maximum penalty of Level 5 imprisonment (10 years), and the majority of stalking offences are heard and determined summarily. Over the period from 2006–07 to 2009–10, 97.1% of principal proven charges for stalking were determined in the Magistrates’ Court.

6.25 In April 2011, the Attorney-General asked the Council to advise him on the introduction of statutory minimum sentences for the offences of intentionally causing serious injury and recklessly causing serious injury when either offence is committed in circumstances of ‘gross violence’.

6.26 The Council provided its advice in its Statutory Minimum Sentences for Gross Violence Offences report. This advice includes the recommendation that the ‘gross violence’ offences be introduced in the form of two new offences, intentionally causing severe injury and recklessly causing severe injury, when those offences are committed in particular aggravating circumstances.^[287]

6.27 In response to the Council’s report, the Victorian Government has committed to creating the two new offences attracting the statutory minimum sentence.^[288]

6.28 The Council recommends that culpable driving causing death and dangerous driving causing death be added to the list of baseline offences.

6.29 The Council considers culpable driving causing death and dangerous driving causing death to be sufficiently serious to warrant inclusion in the baseline sentencing scheme. With the exception of infanticide^[289] and ‘unintentional killing in the course or furtherance of a crime of violence’,^[290] these are the only fatal offences that are not currently included as proposed baseline offences.^[291]

6.30 The maximum penalty for culpable driving causing death is Level 3 imprisonment (20 years), and the maximum penalty for dangerous driving causing death is Level 5 imprisonment (10 years).

6.31 The Court of Appeal has recognised the seriousness of culpable driving causing death (see [8.43]). There was also strong support from some stakeholders for the inclusion of the two offences.

6.32 The Council considers that if culpable driving causing death is added as a baseline offence, then it is essential that dangerous driving causing death is also included in the baseline sentencing scheme. Otherwise, there is a risk that current pleading practices between these two offences may be distorted. The relevance of this consideration in the determination of the baseline levels for these offences is discussed further at [8.49].

6.33 The Council’s data indicate that very few people are charged with cultivation of a large commercial quantity of a drug of dependence, unlike the trafficking offences. In fact, from 2006–07 to 2009–10 there was only one proven charge (where it was the principal proven offence) for the offence of cultivation of a large commercial quantity of a drug of dependence, compared with 82 for trafficking in a large commercial quantity of a drug of dependence.^[292] The fact that there are limited data for this offence means the Council has very little data to assist in determining a baseline level for this proposed offence.

6.34 The Council, however, believes that there is merit in considering the addition of these offences given their level of seriousness and the fact that two equivalent drug trafficking offences are baseline offences.

6.35 The Council therefore suggests that these offences should be considered for inclusion in the baseline sentencing scheme once the scheme has been operating for a period of time.

6.36 The Council recommends that the proposed two new offences of intentionally causing severe injury and recklessly causing severe injury should be subject to the baseline sentencing scheme. The Council considers that these offences will be of very high seriousness, and other related offences, such as intentionally causing serious injury and recklessly causing serious injury, are already included in the list of baseline offences.

6.37 The statutory form of kidnapping^[293] is defined as a ‘serious’ offence in the Sentencing Act 1991 (Vic) and is therefore a baseline offence. However, the common law form of kidnapping is not defined as either a serious or a significant offence.

6.38 The common law form of kidnapping requires the taking away of a person by another without the person’s consent and without lawful excuse. The statutory form of kidnapping has an additional element whereby the kidnapper must also intend to demand from that person or any other person a ransom for the return or release of that person. Both offences have the same maximum penalty of Level 2 imprisonment (25 years).

6.39 It is beyond the scope of this reference to examine why common law kidnapping is not considered a ‘serious’ or a ‘significant’ offence under the Sentencing Act 1991 (Vic). However, given the similarities between the two offences and the fact that they have the same maximum penalty, the Council considers that the common law form of kidnapping should also be a baseline offence.

6.40 The Council considers that the offence of stalking should not be added to the proposed list of baseline offences.

6.41 While acknowledging the trauma that a victim of stalking can experience, the Council considers that the offences recommended for inclusion in the baseline sentencing scheme are primarily those offences determined in the higher courts and with a high maximum penalty.^[294]

6.42 The Council, however, suggests that this offence should be considered for inclusion in the baseline sentencing scheme once the scheme has been operating for a period of time.

The Council recommends that the following offences should be added as baseline offences:

The Council also recommends that the proposed offences of intentionally causing severe injury and recklessly causing severe injury, if enacted, should be added as baseline offences.

6.43 The definition of ‘serious offence’ under section 3 of the Sentencing Act 1991 (Vic) includes ‘an offence of conspiracy to commit, incitement to commit or attempting to commit’ any of the serious offences.^[295] As a result, these additional forms of ‘serious’ offences (except when heard and determined summarily) are included as proposed baseline offences.

6.44 The Sentencing Act 1991 (Vic), however, does not include the conspiracy, incitement or attempt forms of ‘significant’ offences within the definition of ‘significant offence’. For the purposes of consistency, the Council has adopted the same approach when considering the conspiracy, incitement and attempt forms of both categories of offences.

6.45 These non-substantive forms of the offences will not be relevant to all baseline offences. For example, the offences of trafficking in a large commercial quantity of a drug of dependence and trafficking in a commercial quantity of a drug of dependence include within their elements any attempt to traffick, and consequently there are no separate attempt forms of those offences.^[296] Similarly, there are no attempt forms of offences that involve ‘recklessness’ or ‘negligence’, such as culpable driving causing death or dangerous driving causing death.

6.46 The Council has very little data on sentencing for conspiracy, incitement or attempt forms of the baseline offences in the higher courts. This is because so few of these offences are heard, particularly by the higher courts. For example, the Council’s analysis of higher courts data indicates that from 2006–07 to 2009–10, there were six cases of attempted rape and 11 cases of attempted murder where these offences were the principal proven offences. Two of the significant factors that the Council has used to determine the baseline levels are current sentencing practices and the formulation of a derived non-parole period. (These factors are examined in detail in the discussion on baseline levels in Chapter 7.)

6.47 Due to the lack of data on these offences, the Council considered other factors that may be useful in determining which levels to set for these offences. One of these factors is the maximum penalty, a factor that is also a relevant, but not a determinative, consideration in setting the levels for the other (substantive) baseline offences.

6.48 The maximum penalties for incitement and conspiracy to commit a baseline offence are the same as for the principal offence. The maximum penalty for attempt offences, however, is one level lower than the maximum penalty for the completed offence.

6.49 The Council considered whether the relationship between the maximum penalties for the incitement, conspiracy and attempt offences and the maximum penalty for the principal offence should be relevant. In particular, the Council considered whether the fact that the maximum penalty for an attempt offence is one level below that for the substantive offence should mean that the baseline level for an attempt offence should also be set at a lower level. However, the Council determined that applying this approach would result in inconsistent baseline levels.

6.50 For example, the maximum penalty for rape is Level 2 imprisonment (25 years) and for attempted rape it is Level 3 imprisonment (20 years), so the maximum penalty for attempted rape is 80% of the completed offence. In contrast, the maximum penalty for the offence of sexual penetration with a child aged between 12 and 16 is Level 5 imprisonment (10 years), and for the attempted form the maximum penalty is Level 6 imprisonment (five years), 50% of the completed offence. Further, it is impossible to provide this analysis for offences with life imprisonment, such as murder and trafficking in a large commercial quantity of a drug of dependence.

6.51 If the same approach to determining the baseline level solely based on the maximum penalty is taken for conspiracy and incitement offences (which have the same penalty as the substantive offence), then these offences would have the same baseline level as the substantive offences.

6.52 It is important to emphasise, however, that the maximum penalty for a baseline offence is just one factor used by the Council to determine the levels for all other baseline offences. Therefore, placing greater emphasis on the maximum penalty to determine the baseline level for these offences would be inconsistent with the approach taken by the Council.

6.53 Adopting the principal offence baseline levels for the conspiracy, incitement and attempt offences is also inconsistent with the approach taken by the Council, that the baseline level is to represent the middle of the range of offence seriousness. The nature of the offences suggests that they are often quite different from the substantive or completed offence. For example, for the offence of conspiracy to commit murder, if the elements of the conspiracy are not satisfied, the only option is acquittal, as there is no lesser attempted form as there is for the completed form of the offence (that is, reducing a charge from murder to manslaughter). There is also a very significant difference in the level of harm between the completed offence (which results in a fatality) and a conspiracy to commit murder (where no death occurs). In relation to incitement, the Court of Appeal has indicated that ‘incitement to murder will merit more serious punishment in all the circumstances than some cases of murder’.^[297]

6.54 Similar observations have been made by the Court of Appeal concerning other attempt offences, where, for example, the Court of Appeal has held that an attempted rape:

may be made by aggravating features into an offence even more serious than some examples of the full offence.^[298]

6.55 Research conducted by the Council on community attitudes to offence seriousness, as part of its work on the maximum penalties project, suggests that individuals had differing views about attempt offences. Overall, where the degree of harm to the victim is similar to or the same as the completed offence (for example, in the offence of armed robbery), attempts tended to be viewed just as seriously as the completed offence.^[299] Further, the fact that often an offence is an attempt purely because of chance (that is, an offender’s conduct is stopped by accident) did not necessarily reduce the seriousness of the offence.^[300] For other offences in this category, such as the offence of incitement to armed robbery, some participants considered that there was a significant difference in the degree of harm and culpability for the incitement form of the offence.^[301]

6.56 Given the wide variety of circumstances in which conspiracy, incitement and attempt offences can be committed, and the limited data available, the Council recommends that separate baseline levels should not be set for these offences.

6.57 The Council, however, considers that a court should still have regard to the baseline level when sentencing for these offences, in the same way that a court must have regard to the maximum penalty and current sentencing practices. This approach is preferred because it will allow the court to take into account, where relevant, any increase in sentence levels for the substantive or completed offence. For example, the baseline level for sexual penetration with a child under 12 is considerably higher than current sentencing practices; it is therefore anticipated that over time sentence lengths for that offence will increase. However, without any reference to the baseline level in sentencing for the attempted form, sentences for the attempted form may not correspondingly increase.

6.58 This may result in significant disparity between the sentences for the substantive offence and the sentences for the attempt, conspiracy and incitement forms of the offence. This also means that courts will be required to treat an attempted form of the offence as being substantially less serious than the completed offence (to a greater degree than is already prescribed by the different maximum penalty), which, particularly in sexual offences against children, may not necessarily be the case.

The Council recommends that separate baseline levels should not be set for attempting to commit, inciting or conspiring to commit a baseline offence.

When sentencing for an offence of attempting to commit, inciting or conspiring to commit a baseline offence, the court should have regard to the baseline level for the substantive offence.

7.1 The Council made a number of assumptions and considered a number of relevant factors when determining its recommended baseline levels. Many of these assumptions and factors have already been discussed throughout this report but are examined in greater detail in this chapter.

7.2 A number of stakeholders emphasised that it is ‘critical’ that the basis on which the baseline levels are set is ‘completely transparent’^[302] and that they are not set ‘by arbitrary mechanisms’.^[303]

7.3 In relation to the factors that were considered in determining the New South Wales standard non-parole period levels, the Second Reading Speech (for the relevant legislation) noted that the following factors were relevant:

3. current sentencing practices for those offences as evidenced by sentencing statistics compiled by the Judicial Commission of New South Wales; and

4. the ‘community expectation that an appropriate penalty will be imposed having regard to the objective seriousness of the offence’.^[304]

7.4 There is very little detailed information regarding the basis on which the original New South Wales standard non-parole period levels were set, however.

7.5 Further, the extent to which the maximum penalties were taken into account is unclear. A recent assessment of the standard non-parole period scheme by the Judicial Commission of New South Wales found that there was little consistency between the standard non-parole period and the maximum penalty. For example, the ratio of the standard non-parole period to the maximum penalty for offences ranges from 21.4% for offences under the Firearms Act 1996 (NSW) to 71.4% for aggravated indecent assault.^[305]

7.6 In light of the criticism that has been made of the way in which standard non-parole period levels were determined in New South Wales,^[306] the Council is conscious of the need to provide a more transparent and coherent rationale for the setting of baseline levels in Victoria.

7.7 The Council recommends that the baseline level should represent the non-parole period for an offence that is in the middle of the range of seriousness for an offence, taking into account factors that are relevant to the offence only. Factors that are personal to the offender are not relevant to this determination. The non-parole period for an offence that is in the middle of the range of seriousness for that offence is different from the statistical median for that offence and, in most instances, it is likely to be higher than the median. This relationship between the baseline level (representing the midpoint or the middle of the range) and the median is discussed further in Chapter 10.

7.8 The baseline level will only apply to the sentencing of a baseline offence when the court has determined that a sentence of imprisonment and a non-parole period are appropriate. The Council does not consider that the terms of reference suggest that the courts must apply the baseline sentencing scheme in all cases involving a baseline offence. To do so would be to effectively suggest that the courts must always begin with a presumption that an offender should receive a custodial sentence. As discussed at [3.21], this is contrary to existing sentencing principles and also suggests that the baseline sentencing scheme is to operate as a statutory minimum or a mandatory custodial sentencing scheme.

7.9 As a consequence, the Council’s recommended model does not represent the middle of the complete or overall range of seriousness for a particular offence, which would begin at the lowest form of an offence that may receive a non-custodial sentence. Rather, the baseline level represents the middle of the range of seriousness for that offence when a sentence of imprisonment is imposed.^[307]

Figure 5: Difference between the baseline level ‘custodial’ midpoint of seriousness and the midpoint of overall offence seriousness

7.11 The purpose of this figure is to illustrate the conceptual difference between the full range of seriousness for an offence and the range of seriousness for an offence where a sentence of imprisonment has been imposed. However, it is important to note that even before an assessment of offence seriousness is made by the court, the factors that determine whether an offender receives a custodial sentence will often be factors that relate to the offender rather than the offence, that is, not factors that are relevant to determining offence seriousness. For example, an offender’s age or whether the offender has any prior convictions may be relevant factors in the court’s decision whether or not to impose a custodial sentence.

7.12 There may be some rare instances when, after the court has applied the baseline and has considered the relevant factors to arrive at an adjusted baseline, the court determines that a custodial sentence is not appropriate. In other words, the court’s initial view may have been that a custodial sentence was appropriate but after applying the baseline and the relevant aggravating and mitigating factors it reaches a conclusion that a custodial sentence is inappropriate. In these circumstances, the court would impose a non-custodial order in accordance with its ordinary sentencing discretion.

Baseline sentencing does not apply to offences heard and determined summarily

7.13 As discussed in Chapter 5, the Council recommends that baseline sentencing should not apply to the sentencing of baseline offences when they are heard and determined summarily. The Council has set the baseline levels based on their application in the higher courts. The baseline level reflects an offence in the middle of the range of seriousness (assessed by reference to offence factors). It is likely that such an offence would be heard and determined in the higher courts. If the baseline level were intended to apply to courts of summary jurisdiction, different levels would need to be set to take into account the Magistrates’ Court’s jurisdiction and the level of seriousness of offences for which the Magistrates’ Court determines sentences.

7.14 An offender usually receives a reduction in sentence for a guilty plea. This is often expressed as a ‘discount’ by the courts in favour of the offender. The fact that an otherwise comparable offender who does not plead guilty will receive a more severe sentence is not to be considered as a penalty for exercising the right to plead not guilty; such an offender simply does not receive the discount for pleading guilty.

7.15 There is no set amount by which a sentence is discounted; it will depend on factors such as the stage in the proceedings that an offender pleads guilty, the weight of evidence against the offender and the extent to which the offender has demonstrated genuine remorse. The Council’s data on sentencing practices for the offences of aggravated burglary and causing serious injury indicate that the average discount for pleading guilty to these offences for 2008–09 was around 25%.^[308] This assessment is not representative of the average for other offences, such as rape and murder, but it is useful as a guide.

7.16 The guilty plea discount will apply to the head sentence in the first instance, which will in turn reduce the non-parole period.^[309] The Sentencing Act 1991 (Vic) provides that a court must consider a guilty plea when imposing a sentence.^[310] An offender will also usually receive a discount in sentence if that offender has cooperated with the authorities (including giving an undertaking to provide assistance in the investigation or prosecution of co-offenders),^[311] and this discount may be significant.

7.17 Applying a discount provides a significant incentive for an accused person to plead guilty. The reasons why a plea of guilty, in appropriate circumstances, is encouraged include:

In relation to the last two considerations, the guilty plea and related discount are considered after all aggravating and mitigating factors have been taken into account.

7.18 Under section 6AAA of the Sentencing Act 1991 (Vic), if a court imposes a less severe sentence than it would otherwise have imposed because of an offender’s plea of guilty, the court must state the sentence and the non-parole period, if any, that it would have imposed but for that plea.^[312]

7.19 The number of offenders who plead guilty varies depending on the particular offence. For example, the Council’s analysis of higher courts data indicates that in 2009–10, approximately 90% of offenders charged with trafficking in a commercial quantity of a drug of dependence pleaded guilty, whereas approximately 42% of offenders charged with murder pleaded guilty.^[313]

7.20 The Council is of the view that discounts for a guilty plea and/or assistance to authorities should not be a consideration when determining the appropriate baseline level. If the baseline level were to be set on the basis of incorporating such a discount, then in cases where an offender did not plead guilty (or provide assistance to authorities), the court would effectively be required to treat a not guilty plea (or the absence of assistance) as an aggravating factor and increase the adjusted baseline in relation to the prescribed baseline level. Consequently, this may be viewed as punishing an offender for exercising the right to plead not guilty.

7.21 This approach is also consistent with current sentencing principles whereby a court will either provide a discount in cases that have a plea of guilty or not provide a discount in cases without a guilty plea, rather than penalising an offender for exercising the right to plead not guilty.

7.22 It is noted that the medians for sentences in current published sentencing statistics are representative of sentences after any discount has been applied for a guilty plea and/or cooperation with authorities.^[314] Therefore, when considering which level would be appropriate for a baseline, an additional amount must be added to take into account this discount. The average discount for total effective sentences is 25% (with variation between each offence type), whereas for the non-parole period, the proportional discount increases to 33% as the non-parole period term is lower than the total effective sentence. This issue is examined in further detail in the discussion of the median and derived non-parole period in Chapter 10.

7.23 As discussed in Chapter 6, the definition of ‘serious offence’ under section 3 of the Sentencing Act 1991 (Vic) includes ‘an offence of conspiracy to commit, incitement to commit or attempting to commit’ any of the serious offences.^[315] As a result, these additional forms of serious offences (except when heard and determined summarily) are included as proposed baseline offences.

7.24 The Sentencing Act 1991 (Vic), however, does not include the conspiracy, incitement or attempt forms of significant offences within the definition of ‘significant offence’. For the purposes of consistency, the Council has adopted the same approach when considering the conspiracy, incitement and attempt forms of both categories of offences.

7.25 The Council recommends that, given the wide variety of circumstances in which these offences can be committed, and the limited data available, separate baseline levels should not be set for these offences. Further, the Council has determined the baseline levels on the assumption that they represent levels for the principal, or completed, offence.

7.26 The Council recommends that courts should have regard to the baseline level when sentencing for these offences, in the same way that the courts have regard to the maximum penalty and current sentencing practices.

7.27 In addition to the assumptions that are relevant to the setting of the baseline levels, the Council also took into account a number of other relevant factors from a variety of sources of information. No single factor was determinative; however, in some instances, the Council gave more weight to particular factors than to others. In those instances, the specific considerations are discussed in the commentary on the levels in Chapter 8.

7.28 Ultimately, the Council’s recommended baseline levels are a result of an informed value judgment by the Council, which considered all of the sources of information discussed below, and are based on the Council’s collective knowledge and experience.

7.29 The maximum penalty for an offence was an important consideration for the Council when setting the baseline levels. Set by parliament, statutory maximum penalties are expressed in legislation as a period of imprisonment and/or a fine. Maximum penalties serve several purposes, one of which is to reflect the parliament’s, and therefore the community’s, views on the seriousness of an offence.

7.30 The penalty scale for imprisonment terms for most offences in Victoria, including all baseline offences, is set out in section 109 of the Sentencing Act 1991 (Vic). This scale ranges from Level 9, which represents six months’ imprisonment, to Level 1, being life imprisonment. The intermediate levels represent the following maximum terms of imprisonment: one year, two years, five years, 10 years, 15 years, 20 years and 25 years.

7.31 While the maximum penalty is a useful guide to help determine the appropriate baseline levels, the Council considers that the maximum penalty alone should not be determinative. The maximum penalty is intended to provide sufficient scope to sentence not only the worst kind of offending for the particular offence but also offending by the worst kind of offender.^[316] For example, a chronic repeat offender, who shows no remorse, has no prospects for rehabilitation and poses a significant risk to the community.

7.32 The baseline level, however, is intended to represent the non-parole period for an offence that is in the middle of the range of seriousness based on factors relevant to the offence only.

7.33 There may also be a delay between amendments to specific maximum penalties and changes to the community’s, parliament’s and the courts’ views on the seriousness of an offence. That is, government and community attitudes towards, and the courts’ sentencing practices for, a particular offence may have changed over time, while the maximum penalty may not yet have been amended to reflect this. The Council was also mindful of the current review of the Crimes Act 1958 (Vic) being carried out by the government, which is examining, among other things, the maximum penalties for all offences in that Act.

7.34 Further, in March 2010, the Council was asked by the former Attorney-General to review the maximum penalties for the most serious criminal offences in Victoria to be included in a new Crimes Bill. However, the Council’s work on this project has been suspended due to work on other references from the current Attorney-General and also because of delay in the preparation of the Crimes Bill.

7.35 Current sentencing practices are another important factor that the Council took into account when considering the baseline levels. Sentencing practices represent the cumulative experience of judges in assessing the seriousness of many individual cases. The sentencing outcomes data collected by the Council, illustrating the median sentences for offences, are an indication of current sentencing practices.

7.36 When examining the median sentences or median non-parole periods for offences, however, it is important to recognise the limitations of using the median sentence to conclusively determine the baseline levels and therefore the seriousness of an offence.

7.37 Sentencing practices are not a definitive guide to the seriousness of a particular offence because they reflect outcomes that take into account a wide range of aggravating and mitigating factors relating to both the offence and the offender, such as an offender’s character or prior convictions, the degree of remorse and any guilty plea. The Council also notes that it is the government’s clear policy intention that the baseline level will effectively take precedence over current sentencing practices, and that, over time, the effect of the baseline sentencing scheme should be reflected in changes to current sentencing practices.

7.38 Additionally, as the median is the statistical ‘half-way’ point in a set of values, it is not necessarily indicative of an offence that is in the middle of the range of offence seriousness. For example, the median non-parole period for aggravated burglary for 2006–07 to 2009–10 was 1.5 years. This means that half of all non-parole periods imposed during that period were below 1.5 years and half were above.

7.39 The median for this offence demonstrates that there were a large number of aggravated burglary cases that were at a lower level of offence seriousness. At the same time, there were substantially fewer aggravated burglary cases in the middle of the range of seriousness based on the offence factors, such as weapon use and degree of violence. For this reason, the baseline level is considerably higher than the median. The relationship between the median and the baseline level is discussed in more detail in Chapter 10.

7.40 A derived non-parole period midpoint for each baseline offence^[317] has been produced by the Council to provide a more meaningful statistical representation of the middle of the range of seriousness for an offence than the median. This analysis is particularly important for offences that demonstrate a high volume of instances in the lower range of seriousness, such as aggravated burglary. For such offences, the median will not reflect the mid-range of offending and is likely to be considerably lower than the derived non-parole period midpoint.

7.41 As a non-parole period is currently determined for a case as a whole, and not for each charge (where a case involves multiple charges receiving a sentence of imprisonment), it was first necessary to derive a hypothetical non-parole period for each charge before determining a midpoint. This was done in the following way:

7.42 Once a derived non-parole period had been determined for the imprisonment length of each charge within a case, the following method was used to determine the derived non-parole period midpoints for the head sentence:

Note: Where a case did not have a non-parole period or the non-parole period was not applicable, these cases were excluded from calculation of the shortest and longest derived non-parole periods.

For example: The shortest derived NPP for arson was 0.7 (of a year), and the longest derived NPP was 6.2, so the midpoint was calculated to be 3.4 years.

7.43 An additional step was then taken to account for guilty plea discounts. When examining guilty plea discounts for the total effective sentence, the discount is approximately 25% (with variation between each offence type).^[318] However, when examining the non-parole period, the proportional discount increases to approximately 33% as the non-parole period is lower. Therefore, each non-parole period has been adjusted up to account for the 33% discount factor.

7.44 The derived non-parole period midpoint more accurately represents the baseline level because it is not influenced by offences that have a high volume of instances that cluster around a particular point, whether that be at the higher or the lower end of offence seriousness (such as aggravated burglary).

7.45 The Council also took into account comments made by Judges of the Court of Appeal regarding sentencing practices for particular offences.

7.46 For example, there has been commentary by the Court of Appeal (or individual Judges of Appeal) on the adequacy of current sentencing practices for the offences of sexual penetration with a child under 10,^[319] rape,^[320] cultivating a commercial quantity of cannabis,^[321] intentionally causing serious injury,^[322] persistent sexual abuse of a child under 16^[323] and recklessly causing serious injury.^[324]

7.47 The Council also took into account commentary by the Court of Appeal (or individual Judges of Appeal) on the sentencing of particular offences in relation to others. The particular comments are examined in more detail in the commentary on the levels for each offence.

7.48 The Council also noted those offences that were the subject (or were proposed to be the subject) of a challenge to current sentencing practices by the former Director of Public Prosecutions, Mr Jeremy Rapke, QC. In August 2010, the Director issued a media release announcing a new policy whereby he would argue for higher sentences in all aggravated burglary cases, by challenging current sentencing practices for that offence. This challenge was considered to be the first stage of a long-term program to address inadequate sentencing practices for a number of offences, including rape, certain child abuse offences, intentionally and recklessly causing serious injury and certain drug offences.^[325]

7.49 As discussed at [7.34], in March 2010, the Council was asked by the then Attorney-General to review the maximum penalties for approximately 250 of the most serious criminal offences in Victoria to be included in a new Crimes Bill. As part of this review, the Council was requested to take into account a number of matters, including community attitudes towards offence seriousness.

7.50 In response to this request, the Council conducted a series of community panels across metropolitan and regional Victoria as well as an online forum to gather the views of individuals in the Victorian community on the relative seriousness of offences. There were 14 community panel sessions conducted throughout Victoria in metropolitan and regional locations, involving 244 participants from the Victorian community. The panel participants were presented with two exercises. The first exercise required participants to compare a series of pairs of offences and determine which offence was considered the more serious of each pair. In the second exercise, the participants were presented with vignettes representing 40 offences and were asked to provide their views on how those offences should be ranked on a scale of seriousness from one to 10 in comparison with one another. This exercise also included the opportunity for participants to deliberate on and discuss which factors had influenced the way they had ranked each offence relative to other offences.^[326] The methodology used for the panels was designed to enable a facilitated and deliberative consideration by a group of individuals on offence seriousness. As such, the findings do not represent the views of all Victorians, but do provide insight into the views of members of the Victorian community and have assisted the Council to gain a better understanding of community attitudes to offence seriousness.

7.51 Due to the Council’s work on other references from the current Attorney-General and a delay in the preparation of the Crimes Bill, the Council’s work on the Maximum Penalties for Crimes Bill Offences project has been suspended. However, the Council’s research on this issue has also been used in the baseline sentencing project to provide an increased understanding of how members of the community view the relative seriousness of offences.

7.52 Where the findings from the community panels are relevant to particular offences, these issues have been examined further in the commentary on individual baseline levels. For example, the findings indicate that, overall, participants considered sex offences, particularly those against children, to be particularly serious.

7.53 Further information about the Council’s work in this area, including the methodology and data collection for the community panels, can be found in the Council’s Community Attitudes to Offence Seriousness.^[327]

8.1 As discussed in Chapter 7, the Council’s approach to setting the baseline levels involved the consideration of a number of different qualitative and statistical data sources, including:

8.2 It is important to emphasise that no single factor described above has been determinative. The baseline levels are the result of an informed value judgment by the Council, which considered all of the sources of information described above, and are based on the Council’s collective knowledge and experience.

8.3 In determining the baseline levels, the Council was particularly concerned with ensuring coherence between the different baseline offences, based on their relative seriousness.

8.4 The maximum penalty for an offence, established by parliament, is one measure of relative offence seriousness.^[328] The Council also took into consideration key findings from data collected via its community panels (as discussed at [7.49]–[7.53]) on relative offence seriousness that sought to measure the community’s views on how and why offences should be ranked against one another in terms of their seriousness.

8.5 Common themes to emerge from these key findings^[329] that have been taken into account by the Council include the following:

8.6 Table 2 illustrates the relationship between the different categories of offences (for example, sexual offences compared with property offences) and their baseline levels relative to one another. The offences are grouped into the following categories:

20	Murder*
12	Defensive homicide*
11	Child homicide*
10	Manslaughter*	Arson causing death*	Rape‡	Sexual penetration with a child under 12‡	Persistent sexual abuse of a child under 16‡	Incest – parent or de facto parent‡
9	Culpable driving causing death*			Trafficking in a large commercial quantity of a drug of dependence§
8	Intentionally causing severe injury – gross violence†				Armed robbery
7	Intentionally causing serious injury†	Recklessly causing severe injury – gross violence†	Kidnapping – section 63A of the Crimes Act 1958 (Vic)†	Trafficking in a commercial quantity of a drug of dependence§	Aggravated burglary	Sexual penetration with a child aged between 12 and 16 (under the care, supervision or authority of the offender)‡
6		Recklessly causing serious injury†	Kidnapping – common law†
5			Abduction or detention†			Sexual penetration with a child aged between 12 and 16‡
4	Manslaughter – suicide pact*		Assault with intent to rape†		Arson
3	Making a threat to kill*	Dangerous driving causing death*	Abduction of a child under 16†
2						Incest – sibling‡

8.7 The offence of murder involves killing a person by an act that is intended to kill or really seriously injure that person (intentional murder) or killing a person by an act that is done with the knowledge that someone would probably die or suffer really serious injury (reckless murder).

8.8 While murder is a common law offence, the penalty for murder is prescribed by section 3(a) of the Crimes Act 1958 (Vic). The offence of murder is one of only two baseline offences (the other being trafficking in a large commercial quantity of a drug of dependence) that has Level 1 imprisonment (life) as its maximum penalty.

8.9 Murder has been described as ‘the most serious crime known to our legal system’.^[330] Accordingly, the baseline level for murder establishes the top of the hierarchy of relativities for all baseline offences and also for the death-related offences.

8.10 In the Council’s research on relative offence seriousness, participants in the community panels ranked murder at the highest level of seriousness (based on mean rankings). There was also high agreement among panel participants that murder is at the highest level of seriousness. The combination of high culpability and a high level of harm was particularly influential in the decision-making of the majority of participants.^[331]

8.11 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of murder was 18.5 years, and the median non-parole period was 16 years.

8.12 The Council considers that the offence of murder, at the upper limit of offence seriousness, provides an ‘anchor point’ against which the baseline levels for the other death-related offences have been considered. Taking these issues into account, the Council recommends that the baseline level for murder should be 20 years.

8.13 The Crimes (Homicide) Act 2005 (Vic) abolished the rule of law permitting provocation to reduce the crime of murder to manslaughter and introduced a new offence of ‘defensive homicide’. That Act applies to offences committed on or after 22 November 2005.

8.14 Defensive homicide is established when the offender has killed a person by an act that would constitute murder, but that act was done in the unreasonable belief by the offender that it was necessary to defend him- or herself (or another person) from death or really serious injury. The maximum penalty for the offence of defensive homicide is Level 3 imprisonment (20 years).

8.15 Under the earlier common law rule of excessive self-defence, a person who had a genuine belief that his or her conduct was necessary in self-defence, but who was not considered to have acted reasonably, was guilty of the lesser offence of manslaughter.

8.16 In a majority judgment of the Court of Appeal, Neave and Harper JJA stated in Babic v The Queen^[332] that the purpose of the defensive homicide reforms was to:

replace existing common law defences to homicide, including self-defence, with statutory defences and in the case of excessive self-defence, with a new offence.^[333]

8.17 Defensive homicide has also been considered by the Court of Appeal to be closer in seriousness to murder than manslaughter is to murder. In Director of Public Prosecutions v Edwards,^[334] Hansen AJA commented, in delivering a unanimous judgment for the court, that:

it is important to keep in mind that the offence is defensive homicide (which but for the subjective element would be murder), and the fact that the legislation provides for the same maximum penalty for defensive homicide and manslaughter should not blur the lines between the two.^[335]

8.18 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of defensive homicide was nine years and the median non-parole period was six years.

8.19 The Council considers that the baseline level for defensive homicide should be lower than for murder, acknowledging a lower level of culpability, but higher than that for manslaughter. The Council recommends that the baseline level for defensive homicide should be 12 years.

8.20 The offence of child homicide under section 5A of the Crimes Act 1958 (Vic) involves the killing of a child under the age of six years in circumstances that would constitute manslaughter. The maximum penalty for the offence of child homicide is Level 3 imprisonment (20 years).

8.21 The offence was introduced by the Crimes Amendment (Child Homicide) Act 2008 (Vic) and applies to offences committed on or after 19 March 2008; however, there have been no prosecutions for this offence to date.^[336]

8.22 As there were no prosecutions for this offence during the Council’s period of analysis, from 2006–07 to 2009–10, the Council was unable to determine a derived non-parole period midpoint or a median non-parole period for this offence.

8.23 The Second Reading Speech for the Bill introducing the offence described the intent behind its enactment:

In a case in June 2007, R v Arney, where the victim was a baby, the Court of Appeal indicated that the sentencing practices in manslaughter cases ‘appear to ill accord with the requirements of just punishment’ and have resulted in sentences that fail to represent the seriousness of the cases. By introducing a new offence, the government will give scope to the courts to establish a new sentencing practice. As the new offence will be closely related to manslaughter, the sentencing practices for manslaughter will continue to be relevant, but may be less constraining than they have been in the past.^[337]

8.24 Child homicide is perhaps more accurately described as child ‘manslaughter’, as the offence involves the killing of a child under the age of six years in circumstances that would constitute manslaughter. As noted by the Attorney-General, Mr Robert Clark, when Shadow Attorney-General:

[t]he central provision of the bill ... takes the existing offence of manslaughter and gives it the new name of child homicide when the victim is under six years of age. There is no change in the definition of the offence and no change in the maximum penalty.^[338]

8.25 The maximum penalty is the same as manslaughter, but given parliament’s intent to increase current sentencing practices for the offence of manslaughter when it is committed against a child under the age of six, the Council considers that the baseline level for child homicide should be higher than that for manslaughter. The Council recommends that the baseline level for child homicide should be 11 years.

8.26 The offence of arson causing death under section 197A of the Crimes Act 1958 (Vic) involves intentionally or dishonestly (with a view to gain) damaging or destroying property by fire without lawful excuse and with the intention of causing such damage or destruction, or endangering the life of another (or knowing that these will likely occur), thereby causing the death of another.

8.27 The offence of arson causing death was introduced by the Sentencing and Other Acts (Amendment) Act 1987 (Vic), and the maximum penalty for the offence is Level 2 imprisonment (25 years).

8.28 When the offence was introduced, the parliamentary debates included the following justification:

The government believes the act of arson is so intrinsically dangerous that when a death results, the maximum penalty available should reflect that danger. The bill creates a new offence of arson causing death, to apply where a person commits arson, in circumstances not amounting to murder, and when someone dies as a result. The maximum penalty for this offence is 25 years’ imprisonment.^[339]

8.29 In the Council’s research on community attitudes to relative offence seriousness, arson causing death was ranked overall lower than manslaughter and culpable driving causing death.^[340] However, there was low agreement^[341] among participants on the seriousness of arson causing death^[342] and medium levels of agreement on the seriousness of manslaughter^[343] and culpable driving causing death,^[344] due to different approaches to harm and culpability. Some saw the offence of arson causing death as very serious, emphasising the high level of harm that results, but many saw it as less serious than such offences as murder, due to a lower level of culpability.^[345]

8.30 It is important to distinguish this offence from the offence of causing fire in a country area with intent to cause damage^[346] (sometimes described as ‘bushfire arson’), which is not a baseline offence.

8.31 There have been very few cases of arson causing death since the introduction of the offence. The Court of Appeal has commented in an appeal against sentence for an offence of arson causing death that despite a maximum penalty one level higher than manslaughter:

it was appropriate for the judge to use manslaughter sentences as a guide in sentencing the appellant.^[347]

8.32 As there were no prosecutions for this offence during the Council’s period of analysis, from 2006–07 to 2009–10, the Council was unable to determine a derived non-parole period midpoint or a median non-parole period for this offence.

8.33 The Council recommends that the baseline level for arson causing death should be 10 years.

8.34 The offence of manslaughter involves killing a person by an act that would constitute murder were it not for the mitigating effect of particular circumstances that constitute involuntary manslaughter, that is, killing a person by an act that is not intended to kill or really seriously injure someone where:

8.35 In Sherna v The Queen,^[348] Ashley JA stated that ‘[m]anslaughter is a crime which can be committed in ways the gravity of which much differ[s]’.^[349]

8.36 Following the abolition of provocation as a partial defence to murder (reducing it to manslaughter), the offence of defensive homicide was introduced, as discussed above at [8.13]–[8.19]. The maximum penalty for manslaughter is Level 3 imprisonment (20 years).

8.37 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of manslaughter was 8.7 years and the median non-parole period was five years.

8.38 The offence of defensive homicide has a separate maximum penalty and there is also a separate maximum penalty for the voluntary form of manslaughter by way of suicide pact (see below). The remaining forms of manslaughter are all involuntary and so have a lower level of culpability. In those circumstances, the Council considers that the baseline level for manslaughter should be lower than the baseline levels for the offences of defensive homicide and child homicide.

8.39 The Council therefore recommends that the baseline level for manslaughter should be 10 years.

Culpable driving causing death (recommended baseline level – nine years)

8.40 Culpable driving causing death is not one of the original proposed baseline offences. However, the Council recommends that this offence be included in the list of proposed baseline offences. The reasons for this are discussed at [6.28]–[6.32].

8.41 The offence of culpable driving causing death under section 318 of the Crimes Act 1958 (Vic) involves the killing of a person by the driving of a motor vehicle where the driving was ‘culpable’, in that the driving was either reckless or negligent, or the offender was under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the motor vehicle.

8.42 Since its enactment, the maximum penalty for the offence of culpable driving causing death has been increased a number of times, from five years,^[350] seven years,^[351] 10 years^[352] and 15 years^[353] to its current maximum penalty of Level 3 imprisonment (20 years).^[354]

8.43 In Director of Public Prosecutions v Scott,^[355] Vincent JA, delivering the judgment of the Court of Appeal, stated:

It is clear beyond dispute that the legislature, representing the community in this State, has expressed greatly increased concern about the needless loss of life which has too often resulted as a consequence of the culpable driving of motor vehicles, so that at the present time, very substantial maximum penalties have been fixed. It is equally obvious that this view and the steps taken by the legislature to address the issue must be reflected in the sentences imposed upon those who commit this serious offence.^[356]

8.44 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of culpable driving causing death was 5.8 years and the median non-parole period was four years.

8.45 The Council considers that the offence of culpable driving causing death should have a baseline level lower than that for manslaughter. The Council therefore recommends that the baseline level for culpable driving causing death should be nine years.

Dangerous driving causing death (recommended baseline level – three years)

8.46 The offence of dangerous driving causing death under section 319 of the Crimes Act 1958 (Vic) is committed when an offender kills a person by driving a motor vehicle at a speed or in a manner that was dangerous to the public, having regard to all the circumstances of the case.

8.47 The offence of dangerous driving causing death was separated from the offence of dangerous driving causing serious injury by the Crimes Amendment (Child Homicide) Act 2008 (Vic). At the same time that the stand-alone offence was created in section 319(1) of the Crimes Act 1958 (Vic), the maximum penalty was increased from Level 6 imprisonment (five years) to Level 5 imprisonment (10 years).

8.48 From a harm perspective, the consequence of an act of dangerous driving causing death, which results in a fatality, is identical to that of culpable driving causing death. However, the culpability of the offender is considerably different, as expressed by the different mental elements of the offence, and is reflected by the difference in the maximum penalties for the two offences. The Council notes that the maximum penalty for dangerous driving causing death is two levels lower than that for culpable driving causing death, reflecting the lower level of culpability for this offence.

8.49 The Council is mindful of the fact that a charge of culpable driving causing death may often resolve (where the Office of Public Prosecutions considers it appropriate) as a plea to dangerous driving causing death. The difference in the baseline levels between these two offences should therefore recognise the difference in their seriousness, but also should not distort the pleading practices for the offences.

8.50 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of dangerous driving causing death was 2.2 years and the median non-parole period was 1.5 years.

8.51 The Council recommends that the baseline level for dangerous driving causing death should be three years.

8.52 Under section 6B of the Crimes Act 1958 (Vic), a person charged with murder can be found guilty of manslaughter, where that person is a survivor of a suicide pact. In those circumstances, the maximum penalty is reduced from Level 3 imprisonment (20 years) to Level 5 imprisonment (10 years).

8.53 Very few convictions of suicide pact manslaughter have been recorded in Victoria. For the period from 2000 to 2010, only two cases could be identified by the Council.^[357] Both cases involved an offender who was the surviving member of an elderly couple who had determined to commit suicide together, and in each case the offender received a suspended sentence.

8.54 The baseline level represents the middle of the range of offence seriousness for those cases that receive a sentence of imprisonment. Consequently, the baseline level for suicide pact manslaughter is likely to represent an extremely rare form of offending.

8.55 As there were no prosecutions for suicide pact manslaughter during the Council’s period of analysis, from 2006–07 to 2009–10, the Council was unable to determine either a derived non-parole period midpoint or a median non-parole period for this offence. The Council has taken into account that the offence necessarily involves the death of a person, but there is a reduced level of culpability associated with this form of manslaughter.

8.56 After considering these factors, the Council recommends that the baseline level for manslaughter (suicide pact) should be four years.

8.57 The offence of making a threat to kill involves making a threat to a person to kill that person or someone else, intending that, or being reckless to whether, the person to whom the threat is made would fear that the threat would be carried out.

8.58 In 1997, the maximum penalty for the offence of making a threat to kill was increased from five years’ imprisonment to the current Level 5 imprisonment (10 years).

8.59 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of making a threat to kill was 2.7 years and the median non-parole period was 1.6 years.

8.60 As discussed at [6.6], the vast majority of making a threat to kill cases are heard and determined summarily. In accordance with the exclusion of the baseline sentencing scheme from the summary jurisdiction, and as with other baseline offences, the Council has fixed a baseline level to represent the middle of the range of offence seriousness where the offence warrants a term of imprisonment imposed by the higher courts.

8.61 The Council considers that the baseline level for making a threat to kill should be three years.

8.62 The Council acknowledges that the baseline levels for sexual offences, compared with other categories of offending, reflect a considerable increase from current sentencing practices, represented by the median non-parole period and the derived non-parole period midpoint for each offence.

8.63 In setting the baseline levels for sexual offences, the Council was mindful of the discrepancy between current sentencing practices and the maximum penalties prescribed for a number of those offences.^[358] The levels were considered in light of the policy objectives of the baseline sentencing scheme, commentary by the Court of Appeal (or individual Judges of Appeal) regarding the adequacy of current sentencing practices and unequivocal key findings from the community panel data, recognising the considerable harm and culpability associated with sexual offending.

8.64 The offence of rape under section 38 of the Crimes Act 1958 (Vic) involves sexually penetrating a person without that person’s consent or compelling a person, by force or otherwise, to sexually penetrate the offender or another person. The maximum penalty for rape is Level 2 imprisonment (25 years).

8.65 The adequacy of current sentencing practices for rape was recently questioned in Leeder v The Queen^[359] by Maxwell P, who stated:

The median sentence for rape, as identified in the Sentencing Snapshot published in June 2009 by the Sentencing Advisory Council, is five years. That means that there are as many sentences for rape above five years as there are under five ... A separate and very serious question arises about the adequacy of current sentencing practices for rape.^[360]

8.66 Rape was also one of the offences that was part of the former Director of Public Prosecutions’ challenge against current sentencing practices.^[361]

8.67 In the Council’s research on community attitudes to relative offence seriousness, rape was considered to be very serious, the mean rankings of panel participants placing it at the same level of seriousness as reckless murder.^[362]

8.68 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of rape was 9.4 years and the median non-parole period was four years.

8.69 The Council considers that the seriousness of the offence of rape and the inadequacy of current sentencing practices for this offence warrant a baseline level that is reflective of the need for increased sentences for this offence.

8.70 The Council recommends that the baseline level for rape should be 10 years.

Sexual penetration with a child under 12 (recommended baseline level – 10 years)

8.71 Section 45(2)(a) of the Crimes Act 1958 (Vic) sets out the offence of sexual penetration with a child aged under 12 years, which is an aggravated form of the offence under section 45(1) of taking part in an act of sexual penetration with a child under 16 years of age. The maximum penalty for sexual penetration with a child under 12 is Level 2 imprisonment (25 years).

8.72 This offence replaced the offence of sexual penetration with a child under 10, which was repealed by the Crimes Legislation Amendment Act 2010 (Vic). The new offence applies to acts committed on or after 16 March 2010.^[363]

8.73 The maximum penalty for the offence of sexual penetration with a child under 10 was increased in 1997 from 20 years’ imprisonment to Level 2 imprisonment (25 years) with the aim of putting it ‘on the same footing as rape’.^[364]

8.74 The adequacy of current sentencing practices for sexual penetration with a child under 10 was questioned by the Court of Appeal in Director of Public Prosecutions v CPD,^[365] where the court unanimously stated:

current sentencing practices for sexual penetration of a child under 10 appear difficult to reconcile with the high maximum set by Parliament.^[366]

8.75 Current sentencing practices for this offence were also the subject of a challenge by the former Director of Public Prosecutions.^[367]

8.76 The offence of sexual penetration with a child under 10 was considered to be extremely serious by community panel participants, in terms of both its relativity to other sexual offences (its mean ranking placed it as the highest ranked sexual offence) and its relativity to other offences (for example, its mean rankings placed it at the same level of seriousness as intentional murder). Many participants expressed this view in comments made during the ranking exercise.^[368] The particular vulnerability of young children, the high level of harm caused to them by this offence (including long-term psychological injuries) and the high level of culpability of offenders who commit this offence all contributed to the high level of seriousness.^[369]

8.77 During the Council’s period of analysis, from 2006–07 to 2009–10, no offenders were sentenced for the new offence of sexual penetration with a child under 12; consequently the Council has used data for the former offence of sexual penetration with a child under 10 to derive a non-parole period midpoint (four years) and a median non-parole period (three years).

8.78 The Council considers that the seriousness of the offence of sexual penetration with a child under 12 and the inadequacy of current sentencing practices for this offence^[370] warrant a baseline level that is reflective of the need for increased sentences for this offence.

8.79 Accordingly, the Council recommends that the baseline level for sexual penetration with a child under 12 should be 10 years.

Incest – parent or de facto parent (recommended baseline level – 10 years)

8.80 The offence of incest – parent or de facto parent under sections 44(1) and 44(2) of the Crimes Act 1958 (Vic) involves taking part in an act of sexual penetration with a person whom the offender knows is his or her child, lineal descendent or step-child or the child, lineal descendant or step-child of his or her de facto spouse. The maximum penalty for the offence of incest – parent or de facto parent is Level 2 imprisonment (25 years).

8.81 The forms of incest defined as ‘serious offences’ under the Sentencing Act 1991 (Vic) (and consequently proposed as baseline offences) extend to the offences under sections 44(1) and 44(2) of the Crimes Act 1958 (Vic) where either party was under 18 or there was no consent.^[371]

8.82 As a result, the baseline level will apply to those instances of the offence of incest – parent or de facto parent, where either of the parties to the criminal act was under 18, or both parties were over 18 but there was no consent.

A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.^[372]

8.84 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of incest – parent or de facto parent was 6.7 years and the median non-parole period was four years.

8.85 The Council recommends that the baseline level for incest – parent or de facto parent when committed in the circumstances that constitute a ‘serious offence’ for the purposes of the Sentencing Act 1991 (Vic) should be 10 years.

Persistent sexual abuse of a child under 16 (recommended baseline level – 10 years)

8.86 The offence of persistent sexual abuse of a child under the age of 16 under section 47A of the Crimes Act 1958 (Vic) involves an offender persistently sexually abusing a child under the age of 16 to whom the offender is not married, through at least three acts that would constitute sexual offences within a particular period. The maximum penalty for persistent sexual abuse of a child under 16 is Level 2 imprisonment (25 years).

8.87 The sexual offences required to constitute the minimum three acts are rape, compelling to take part in an act of sexual penetration and indecent assault or assault with intent to rape. As three acts of any one offence or a combination of those offences are a minimum only, there could be a very wide range of offence seriousness for this offence depending on the nature of the acts and the number of acts committed.

8.88 The adequacy of current sentencing practices for this offence was discussed by the Court of Appeal in Director of Public Prosecutions v DDJ,^[373] where the Court of Appeal unanimously stated:

Like the sentencing court, this Court must have regard both to the applicable maximum penalty and to current sentencing practices for the offence ... No submissions having been advanced on the question, it would not be appropriate for us to express a concluded view. Enough has been said already, however, to demonstrate that a real question arises as to the adequacy of current sentencing for this offence. That is a matter of the first importance to the administration of criminal justice in this State.^[374]

8.89 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of persistent sexual abuse of a child under 16 was 6.4 years and the median non-parole period was 4.5 years.

8.90 The Council considers that the same concerns regarding the high relative offence seriousness for sexual offences against children expressed by participants in the community panels apply equally to this offence. Accordingly, the Council recommends that the baseline level for persistent sexual abuse of a child under 16 should be 10 years.

Sexual penetration with a child aged between 12 and 16 (where the child is under the care, supervision or authority of the offender) (recommended baseline level – seven years)

8.91 Section 45(2)(b) of the Crimes Act 1958 (Vic) sets out the offence of sexual penetration with a child aged between 12 and 16 years where that child is under the care, supervision or authority (CSA) of the offender, for which the maximum penalty is Level 4 imprisonment (15 years).

8.92 This aggravated form of the offence under section 45(1) of the Crimes Act 1958 (Vic) was amended by the Crimes Legislation Amendment Act 2010 (Vic) and replaced the offence of sexual penetration with a child aged between 10 and 16 (CSA). The new offence applies to acts committed on or after 16 March 2010.

8.93 During the Council’s period of analysis, from 2006–07 to 2009–10, no offenders were sentenced for the new offence of sexual penetration with a child aged between 12 and 16 (CSA). Consequently, the Council has used data for the offence of sexual penetration with a child aged between 10 and 16 (CSA) to derive a non-parole period midpoint (4.7 years) and a median non-parole period (3.3 years).

8.94 The Council notes that, while the circumstances of aggravation in this offence require a baseline level higher than that of sexual penetration with a child aged between 12 and 16 years, the culpability for this offence is lower than that of the offence of sexual penetration with a child under 12.

8.95 The Council recommends that the baseline level for sexual penetration with a child aged between 12 and 16 (CSA) should be seven years.

Sexual penetration with a child aged between 12 and 16 (recommended baseline level – five years)

8.96 Section 45(2)(c) of the Crimes Act 1958 (Vic) sets out the offence of sexual penetration with a child aged between 12 and 16 years,^[375] for which the maximum penalty is Level 5 imprisonment (10 years).

8.97 This offence was amended by the Crimes Legislation Amendment Act 2010 (Vic), replacing the offence of sexual penetration with a child aged between 10 and 16 years. The new offence applies to acts committed on or after 16 March 2010.

8.98 During the Council’s period of analysis, from 2006–07 to 2009–10, no offenders were sentenced for the new offence of sexual penetration with a child aged between 12 and 16 years. Consequently, the Council has used data for the offence of sexual penetration with a child aged between 10 and 16 to derive a non-parole period midpoint (3.2 years) and a median non-parole period (two years).

8.99 During consultation, stakeholders submitted that this offence can often include situations where two adolescents, who are close in age, engage in a ‘consensual’ sexual relationship.^[376] Stakeholders expressed concern that these offences, within the context of a relationship between parties of a similar age, would be subject to a high baseline level that would exclude the possibility of a non-custodial sentence.^[377]

8.100 The Victorian Centres Against Sexual Assault Forum expressed in their submission the same concern regarding:

current anomalies in the law such as 19 year old males engaging in consensual sex with a 15 year old female being charged with sexual assault.^[378]

8.101 The Council acknowledges these concerns but notes that they are likely to be addressed by the fact that the baseline level represents the starting point for a court in determining the non-parole period for a baseline offence only where the court has decided to impose a sentence of imprisonment and where a non-parole period is warranted.

8.102 It appears that in a majority of cases involving a ‘consensual’ relationship between similarly aged parties, only a low proportion of defendants receives a sentence of imprisonment. The Council’s analysis of data (conducted in 2009) on the offence of sexual penetration with a child under 16 reveals that 24% of offenders aged under 19 received a term of imprisonment for this offence.^[379] While the abolition of suspended sentences may affect the imposition of non-custodial penalties for this offence, the decision to impose a sentence of imprisonment is still required for the baseline sentencing scheme to apply.

8.103 The Council considers that, as the non-aggravated form of the offence of sexual penetration with a child aged between 12 and 16, this offence should have a lower baseline level than the offence of sexual penetration with a child aged between 12 and 16 where the child is under the care, supervision or authority of the offender, to reflect the lower level of culpability.

8.104 The Council recommends that the baseline level for sexual penetration with a child aged between 12 and 16 years should be five years.

8.105 The offence of incest – sibling under section 44(4) of the Crimes Act 1958 (Vic) involves an offender taking part in an act of sexual penetration with a person whom the offender knows is his or her sister, half-sister, brother or half-brother. The maximum penalty for this offence is Level 6 imprisonment (five years).

8.106 The forms of incest described as ‘serious offences’ under the Sentencing Act 1991 (Vic) (and consequently, proposed as baseline offences) extend to the offences under section 44(4) where either party was under 18 or there was no consent.^[380]

8.107 Consequently, the baseline level will apply to those instances of the offence of incest – sibling where either of the parties to the criminal act was under 18, or both parties were over 18 but there was no consent.

8.108 Over the period of the Council’s analysis, from 2006–07 to 2009–10, there was an insufficient number of cases^[381] of incest – sibling for the Council to derive a non-parole period midpoint or a median non-parole period.

8.109 The Council recommends that the baseline level for incest – sibling when committed in the circumstances that constitute a ‘serious offence’ for the purposes of the Sentencing Act 1991 (Vic) should be two years.

Intentionally causing severe injury (recommended baseline level – eight years)

8.110 As discussed at [6.25]–[6.27], the government has announced that it will introduce legislation to establish the new offences of intentionally causing severe injury and recklessly causing severe injury.^[382] While the exact form and description of the offences have yet to be determined, the Council recommends that the severe injury offences be included as baseline offences, given their high level of seriousness relative to other baseline offences.^[383]

8.111 In the absence of statistical data, commentary by the Court of Appeal (or individual Judges of Appeal) and community panel data for the proposed offences, the Council considered the seriousness of the proposed offences in terms of their harm (being the level of injury inflicted) and culpability, relative to the other baseline offences.

8.112 The proposed offences, as recommended by the Council, will involve a level of injury higher than that currently determined to be ‘serious’ injury (for the purposes of the offences of intentionally causing serious injury and recklessly causing serious injury), accompanied by a high level of culpability, in the form of the gross violence circumstances.^[384] Consequently, an offence of intentionally causing severe injury, in the middle of the range of seriousness for that offence, should sit higher on the scale than an offence of intentionally causing serious injury, in the middle of the range of seriousness for that offence.

8.113 The Council considers that the baseline level for the offence of intentionally causing severe injury should therefore be higher than that for intentionally causing serious injury. Accordingly, the Council recommends that the baseline level for intentionally causing severe injury should be eight years.

Kidnapping – section 63A of the Crimes Act 1958 (Vic) (recommended baseline level – seven years)

8.114 The offence of kidnapping under section 63A of the Crimes Act 1958 (Vic) involves taking or leading or enticing a person away or detaining a person with the intent to demand payment by way of a ransom for the person’s return or release or with the intent to gain an advantage. The maximum penalty for the offence is Level 2 imprisonment (25 years).

8.115 The seriousness of this offence was discussed by the Court of Appeal in Director of Public Prosecutions v Ramos; Director of Public Prosecutions v Delos Santos; Director of Public Prosecutions v Herasan^[385] where it was stated by Harper AJA when delivering the judgment of the court that:

[t]he question of general deterrence assumes a particular significance in this case. This is so because kidnappings of the kind presently before the Court are rare ... In my opinion, the clear duty of the Court is to make it plain that crimes of this nature are abhorrent. They as much as almost any crime, and more than most, offend against values which civilised communities regard as sacrosanct.^[386]

8.116 As there were no prosecutions for this offence during the Council’s period of analysis, from 2006–07 to 2009–10, the Council was unable to determine a derived non-parole period midpoint or a median non-parole period for this offence. Instead, the Council had regard to the statistical data for the common law offence of kidnapping, which had a derived non-parole period midpoint of 3.5 years and a median non-parole period of two years.

8.117 The Council considers that, given the additional element of a demand by ransom or an attempt to gain advantage, which increases the culpability and seriousness of this offence, the baseline level for statutory kidnapping should be set higher than that of common law kidnapping, where no demand or attempt to gain advantage is required. Accordingly, the Council recommends that the baseline level for kidnapping (statutory) should be seven years.

Intentionally causing serious injury (recommended baseline level – seven years)

8.118 The offence of intentionally causing serious injury involves causing serious injury to a person by a physical attack that is intended to cause a serious injury, without lawful excuse. The maximum penalty for intentionally causing serious injury is Level 3 imprisonment (20 years).

8.119 In Kane v The Queen,^[387] Harper AJA, agreeing with Nettle JA, commented on current sentencing practices for the offence of intentionally causing serious injury, stating:

there is reason to question whether the current range is appropriate. The behaviour involved ... in this case was a very high degree of criminality. It is difficult to equate with that behaviour a sentence which is well under half the maximum fixed by Parliament. It is Parliament’s constitutional prerogative to fix such maxima and the courts’ duty to give effect to the intention evidenced by Parliament in so legislating. Sentences for serious examples of the offence which consistently fall below half the maximum are arguably not consistent with the duty [of] the Courts to adhere to the intention of the legislature as expressed in the relevant legislative provisions.^[388]

8.120 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of intentionally causing serious injury was 6.2 years and the median non-parole period was 2.5 years.

8.121 The Council recommends that the baseline level for intentionally causing serious injury should be seven years.

Recklessly causing severe injury (recommended baseline level – seven years)

8.122 As with intentionally causing severe injury, discussed above, the level of harm inflicted by recklessly causing severe injury will be higher than that for the causing serious injury offences, and the level of culpability will be lower than that for intentionally causing severe injury, given the lesser mental element of ‘recklessness’ required. The ‘recklessness’ element is satisfied when an offender is aware that his or her actions will probably cause severe injury but that offender goes ahead with those actions anyway.

8.123 In the absence of statistical data, commentary by the Court of Appeal (or individual Judges of Appeal) and community panel data for the proposed offences, the Council considered the seriousness of the proposed offences in terms of the harm (being the level of injury inflicted) and the culpability, relative to the other baseline offences.

8.124 The Council considers that the offence of recklessly causing severe injury should have a baseline level that is lower than the intentional form (to reflect the lower level of culpability) but higher than that of recklessly causing serious injury (to reflect the higher level of harm caused). Accordingly, the Council recommends that the baseline level for recklessly causing severe injury should be seven years.

Recklessly causing serious injury (recommended baseline level – six years)

8.125 The offence of recklessly causing serious injury involves causing serious injury to a person by a physical attack without lawful excuse. The ‘recklessness’ element is satisfied when an offender is aware that his or her actions will probably cause serious injury but that offender goes ahead with those actions anyway. The maximum penalty for recklessly causing serious injury is Level 4 imprisonment (15 years).

8.126 Current sentencing practices for the offence of recklessly causing serious injury were the subject of a challenge by the former Director of Public Prosecutions.^[389] In the case of Winch v The Queen,^[390] counsel for the Crown urged the Court of Appeal to ‘make strong observations as to the need to alter sentencing practices’.^[391]

8.127 The Court of Appeal considered the adequacy of sentencing practices in Winch v The Queen, but confined this consideration to those cases of recklessly causing serious injury that involved the same form of injury and conduct as was relevant in this particular case.^[392] Winch v The Queen involved ‘glassing’ that the Court of Appeal described as ‘where one person strikes another with a glass or bottle, typically to the face or the head’,^[393] resulting in the object breaking on impact. In their majority judgment, Maxwell P and Redlich JA stated:

we agree with the Crown’s submission that the general run of sentences imposed for glassing as an instance of RCSI does not sufficiently reflect the fact that such conduct is inherently dangerous, and should not be treated as a less serious form of the offence of RCSI.^[394]

8.128 In Ashdown v The Queen,^[395] Maxwell P acknowledged that, in the case before the Court of Appeal, a higher sentence for the offence of recklessly causing serious injury would have been appropriate, were it not for the constraint of current sentencing practices, stating:

a sentence of five years’ imprisonment for an offender who pleads guilty to this offence is exceptionally high under current sentencing practices ... Unconstrained by current sentencing practices, however, I would have regarded the sentence as unimpeachable.^[396]

8.129 While acknowledging that the inadequacy of current sentencing practices for recklessly causing serious injury was a live issue, Maxwell P stated:

I do not regard it as appropriate to address the much broader question raised by the Crown in the present appeal, of the adequacy of sentencing across the whole range of RCSI offending.^[397]

8.130 The policy objective of the baseline sentencing scheme is to provide the courts with a starting point for the sentencing of baseline offences, including recklessly causing serious injury. The court will be required to depart from the sentencing practices that existed prior to the introduction of the baseline sentencing scheme, and over time will develop new sentencing practices in accordance with the scheme (see [7.37]).

8.131 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of recklessly causing serious injury was 5.4 years and the median non-parole period was 1.3 years.

8.132 The Council recommends that the baseline level for recklessly causing serious injury should be six years.

8.133 As discussed in Chapter 6, the offence of common law kidnapping is not included in the original list of proposed baseline offences,^[398] but the Council recommends that it be included.

8.134 The offence of kidnapping at common law involves the taking or carrying of a person away by force or fraud, without that person’s consent and without lawful excuse. However, unlike the statutory form of kidnapping, it does not require that a demand or ransom be made, and as such, the Council considers there to be a lower level of culpability than the statutory form. The maximum penalty for the offence is Level 2 imprisonment (25 years).

8.135 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of common law kidnapping was 3.5 years and the median non-parole period was two years.

8.136 The Council recommends that the baseline level for kidnapping – common law should be six years.

8.137 The offence of abduction or detention under section 55 of the Crimes Act 1958 (Vic) involves taking away a person by force or detaining a person against that person’s will intending that the person marry or take part in an act of sexual penetration with the offender or another person. The maximum penalty for the offence is Level 5 imprisonment (10 years).

8.138 As there were no prosecutions for this offence during the Council’s period of analysis, from 2006–07 to 2009–10, the Council was unable to determine a derived non-parole period midpoint or a median non-parole period for this offence.

8.139 The Council recommends that the baseline level for abduction or detention should be five years.

8.140 The offence of assault with intent to rape involves assaulting or threatening to assault another person with intent to commit rape. The maximum penalty for assault with intent to rape is Level 5 imprisonment (10 years).

8.141 Assault with intent to rape was considered to be extremely serious by the community panels; the mean ranking of this offence placed it at the same level of seriousness as attempted rape.^[399] Many participants expressed the view that the intent to rape demonstrated a high level of culpability, and the fact that the intended rape was not completed did not diminish the seriousness of the offence.

8.142 Over the period of the Council’s analysis, from 2006–07 to 2009–10, there was an insufficient number of cases^[400] of assault with intent to rape for the Council to derive a non-parole period midpoint. However, the median non-parole period for the offence was 1.8 years.

8.143 The Council considers that, consistent with other offences involving sexual elements, the offence of assault with intent to rape warrants a baseline level considerably higher than the median, reflecting the seriousness of the offence.

8.144 The Council recommends that the baseline level for assault with intent to rape should be four years.

Abduction of a child under 16 (recommended baseline level – three years)

8.145 The offence of abduction of a child under 16 years, under sections 56(1) and 56(2) of the Crimes Act 1958 (Vic), involves taking away a child under the age of 16 years, or causing the child to be taken away, against the will of the person who has lawful charge of the child, intending that the child take part in an act of sexual penetration outside marriage with the offender or another person.

8.146 While the abduction of a child would generally be considered an aggravated form of the offence of abduction or detention in section 55 of the Crimes Act 1958 (Vic), the maximum penalty prescribed for this offence is, in fact, one level lower, being Level 6 imprisonment (five years). The lesser penalty, provided for in circumstances in which the victim of an abduction or detention is a child, suggests that this offence does not reflect the seriousness with which offending against children was viewed by the majority of participants in the Council’s community panels on offence seriousness.^[401]

8.147 As there were no prosecutions for this offence during the Council’s period of analysis, from 2006–07 to 2009–10, the Council was unable to determine a derived non-parole period midpoint or a median non-parole period for this offence.

8.148 The Council recommends that the baseline level for abduction of a child under 16 should be three years.

8.149 The offence of armed robbery under section 75A of the Crimes Act 1958 (Vic) involves taking something that belongs to another person while being armed with a firearm, weapon or explosive (or imitations of these objects) and threatening or using force against that person, and not intending to give the property back. The maximum penalty for armed robbery is Level 2 imprisonment (25 years).

8.150 The adequacy of sentencing practices for armed robbery was the subject of comment by the Court of Appeal in Director of Public Prosecutions v Kennedy.^[402] In that case, Redlich JA, delivering the judgment of the court, stated:

The director further submitted that the sentencing judge failed to give sufficient weight to the maximum penalty of 25 years for armed robbery, relying upon the proposition that the high maximum sentence justifies the view that deterrence is a matter that should be given priority. The failure to give the maximum penalty its proper weight was said to be evident from the fact that the sentences imposed represented only 10% of the maximum penalty available.^[403]

8.151 Armed robbery is the most common offence to be heard in the Victorian higher courts. Between 2000–01 and 2007–08, armed robbery accounted for 12.0% of all sentences (or 1,921 sentences in total).^[404]

8.152 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of armed robbery was 7.6 years and the median non-parole period was two years.

8.153 The considerable difference between the midpoint and the median for this offence illustrates that although armed robbery is an offence involving a high volume of cases, the majority of those cases exhibit a lower level of seriousness.

8.154 Consistent with the Council’s recommended model, whereby the baseline level should represent the middle of the range of offence seriousness, the Council recommends that the baseline level for armed robbery should be eight years.

8.155 The offence of aggravated burglary under section 77 of the Crimes Act 1958 (Vic) involves an offender going into a building without permission in order to commit an assault or a property damage offence punishable by five or more years’ imprisonment while:

8.156 The offence is completed when those elements are satisfied; in other words, the actual commission of an assault or property damage offence need not occur for the offence to be made out. In most cases, however, the intent to commit an assault or property offence is usually evidenced by such an offence having also been committed. The maximum penalty for aggravated burglary is Level 2 imprisonment (25 years).

8.157 The Court of Appeal has commented on the adequacy of current sentencing practices for the offence of aggravated burglary in a number of cases. In Director of Public Prosecutions v El Hajje,^[405] in a unanimous decision, the Court of Appeal stated:

This sentencing information raises a serious question, however, about the adequacy of current sentencing practices for this offence. The sentences being imposed appear not to reflect the very high maximum which Parliament has fixed. That is a matter of the first importance to the administration of criminal justice in this State.^[406]

8.158 President Maxwell affirmed this position in Saltalamacchia v The Queen,^[407] stating that:

there is a real question about the adequacy of current practices, having regard to the 25 year maximum and the community expectation that home invasions be severely punished.^[408]

Those statistics suggest that there is a very serious question to be examined about whether current sentencing practices for aggravated burglary can be justified, in view of Parliament’s clear instruction to the Courts in 1997 to sentence for this offence within parameters marked out by an increased maximum of 25 years.^[410]

8.160 In light of these statements, current sentencing practices for the offence of aggravated burglary were the subject of a challenge by the former Director of Public Prosecutions.^[411]

8.161 The Council has published a statistical analysis of current sentencing practices for aggravated burglary.^[412] The Council’s analysis shows that, in the higher courts over the period 2008–09, 96.7% of the cases involving a charge of aggravated burglary had two or more charges in the case.^[413]

8.162 As the baseline level represents the middle of the range of seriousness for an offence, rather than for a case, it may be that the criminality involved in the commission of the co-occurring offence or offences may be more serious than that of the aggravated burglary. In these circumstances, the Council recommends that the courts apply the baseline level for the co-occurring offence in accordance with the procedure that the Council recommends in relation to multiple offences (see [4.54]).

8.163 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of aggravated burglary was 6.8 years and the median non-parole period was 1.5 years.

8.164 The Council recommends that the baseline level for aggravated burglary should be seven years.

8.165 Section 197 of the Crimes Act 1958 (Vic) contains a number of offences relating to intentionally destroying or damaging property. Section 197(1) concerns the intentional destruction or damaging of property (or knowledge that this will likely occur) without lawful excuse. Section 197(2) concerns the same damage or destruction as set out in section 197(1), but with the additional intent to endanger the life of another (or knowledge that this will likely occur). Section 197(3) also involves the same intentional destruction of property as set out in section 197(1), but with the additional element that the property was dishonestly damaged or destroyed with a view to gain.

8.166 The offence of arson under section 197(7) of the Crimes Act 1958 (Vic) covers the criminal conduct described under all three of these offences where the property is destroyed or damaged by fire. The maximum penalty for the offence of arson (regardless of the particular prescribed intent) is Level 4 imprisonment (15 years). This offence does not include arson that results in a death; this is covered by the offence of arson causing death (discussed at [8.26]–[8.33]).

8.167 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of arson was 3.4 years and the median non-parole period was 1.5 years.

8.168 The Council recommends that the baseline level for arson should be four years.

Trafficking in a large commercial quantity of a drug of dependence (recommended baseline level – nine years)

8.169 The offence of preparing, making, selling, exchanging or agreeing to sell a large commercial quantity of an illegal drug or attempting to do any of these things is set out in section 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

8.170 The offence of trafficking a large commercial quantity of an illegal drug is one of only two baseline offences (the other being murder) that has a maximum penalty of Level 1 imprisonment (life). This maximum penalty expresses the high level of seriousness with which parliament considers the large-scale commercial trafficking of illegal drugs.

8.171 Data on the seriousness of trafficking offences from the community panels on relative offence seriousness revealed that, overall, drug offences were considered to be less serious than offences that involved direct harms being caused or risked to a person; however, there was a high level of disagreement on the mean rankings of almost all offences in this category.^[414]

8.172 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of trafficking in a large commercial quantity of a drug of dependence was 7.6 years and the median non-parole period was 4.5 years.

8.173 The Council recommends that the baseline level for trafficking in a large commercial quantity of a drug of dependence should be nine years.

Trafficking in a commercial quantity of a drug of dependence (recommended baseline level – seven years)

8.174 The offence of preparing, making, selling, exchanging or agreeing to sell a commercial quantity of an illegal drug or attempting to do any of these things is set out in section 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The maximum penalty for trafficking in a commercial quantity of a drug of dependence is Level 2 imprisonment (25 years).

8.175 Over the period of the Council’s analysis, from 2006–07 to 2009–10, the derived non-parole period midpoint for the offence of trafficking in a commercial quantity of a drug of dependence was five years and the median non-parole period was 2.3 years.

8.176 Trafficking in a commercial quantity of a drug of dependence is essentially the same offence as trafficking in a large commercial quantity of a drug of dependence, with the only difference being the lesser amount of illegal drugs that the offender trafficked or attempted to traffick. That difference, in terms of harm and culpability (reflected in the lesser maximum penalty), involves a question of degree, rather than a different set of considerations or entirely different behaviour.

8.177 Accordingly, the Council believes that the baseline levels for the two drug trafficking baseline offences should bear a strong relationship to one another, reflecting the similarity of the offending they represent while also adequately reflecting the difference in their seriousness.

8.178 The Council recommends that the baseline level for trafficking in a commercial quantity of a drug of dependence should be seven years.

Offence	Baseline level (years)
Murder	20
Defensive homicide	12
Child homicide	11
Arson causing death	10
Manslaughter	10
Incest – parent or de facto parent (when defined as a ‘serious’ offence under section 3 of the Sentencing Act 1991 (Vic))	10
Rape	10
Sexual penetration with a child under 12	10
Persistent sexual abuse of a child under 16	10
Culpable driving causing death	9
Trafficking in a large commercial quantity of a drug of dependence	9
Armed robbery	8
Intentionally causing severe injury – gross violence	8
Intentionally causing serious injury	7
Kidnapping – section 63A of the Crimes Act 1958 (Vic)	7
Trafficking in a commercial quantity of a drug of dependence	7
Aggravated burglary	7
Recklessly causing severe injury – gross violence	7
Sexual penetration with a child aged between 12 and 16 – where the child is under the care, supervision or authority of the offender	7
Kidnapping – common law	6
Recklessly causing serious injury	6
Sexual penetration with a child aged between 12 and 16	5
Abduction or detention	5
Arson	4
Assault with intent to rape	4
Manslaughter – suicide pact	4
Abduction of a child under 16	3
Dangerous driving causing death	3
Making a threat to kill	3
Incest – sibling (when defined as a ‘serious’ offence under section 3 of the Sentencing Act 1991 (Vic))	2

9.1 The terms of reference ask the Council to examine the likely effects of the recommended baseline sentencing scheme on sentencing levels and on the prison population.

9.2 In response to this request, the Council has produced a set of estimates based on various assumptions.

9.3 The estimates do not represent forecasts of the actual numbers of prisoners in future years. The actual numbers of persons serving sentences for baseline offences in future years will be affected by a wide range of factors that may include population growth and other demographic changes as well as possible changes in the prevalence, reporting, investigation and prosecution of the offences. The estimates do not seek to incorporate these factors as they are highly uncertain and they are not necessary for the purpose of this advice. For example, the estimates do not take into account any changes in pleading practices or the granting of bail.

9.4 In order to determine the impact of the baseline sentencing scheme, it is necessary to keep in mind the intention of the scheme.

9.5 The Council recommends that, when a court imposes a sentence of imprisonment for a baseline offence (where the sentence for that baseline offence is either the base sentence or the only sentence, in a case), the court is required to use a baseline level as the ‘starting point’ for determining an ‘adjusted baseline’. The determination of an adjusted baseline is explained in more detail in Chapter 4.

9.6 If there is only one imprisonment sentence in a case, the adjusted baseline will become the non-parole period.

9.7 If there is more than one sentence of imprisonment in a case, the adjusted baseline will be determined prior to determining the head sentence for the base sentence offence. Other sentences will then be determined. The non-parole period will be determined after the total effective sentence has been determined, that is, after orders for concurrency and/or cumulation of sentences against the base sentence have been made. In those cases, the non-parole period must not be less than the adjusted baseline.

9.8 In both circumstances, the adjusted baseline is likely to be different from the starting point. This is because a judge must determine whether the particular instance of the offence is more or less serious than the middle of the range of seriousness for the offence and must take into account factors relating to the offender and other factors such as public policy considerations, for example, whether the offender pleaded guilty and whether the offender assisted the authorities.

9.9 The amount by which current sentences should be adjusted in order to estimate the effect of a baseline sentencing scheme is difficult to predict. It is dependent on which aggravating and mitigating factors the court will consider to be relevant in departing from the baseline level in each case and arriving at an adjusted baseline and a subsequent non-parole period.

9.10 Predicting the effects of the baseline sentencing scheme is therefore exceedingly difficult. The Council has developed a number of models in response to this uncertainty. Each model has important assumptions and limitations, which are explained in detail.

9.11 One of the considerations used by the Council to determine the baseline level for each offence is the derived non-parole period midpoint for the offence. Therefore, a logical amount by which to adjust sentences is the difference between the baseline level and the derived non-parole period midpoint. The factors that are relevant to determining a derived non-parole period midpoint are explained in detail at [7.40]–[7.44].

9.12 It is likely that, in practice, the adjustment factor will not be a constant, that is, judges will adjust different sentences by different amounts. However, as these adjustments are not possible to determine, for the purposes of these estimations, the adjustment factor has been held constant, that is, the same adjustment figure has been used for all proposed scenarios.

9.13 Although the adjustment factor has been set at a constant value for each offence, the Council considered various scenarios to determine the possible impacts of the baseline sentencing scheme by changing the scope of affected cases.

9.14 For each offence, three populations with different parameters (or possibilities) have been considered:

1. All cases that receive a non-parole period will be affected by the baseline sentencing scheme (‘IMP100%’). For example, if the baseline is two years higher than the derived non-parole period midpoint, every non-parole period is increased by two years.

2. All cases that receive a non-parole period in the bottom 75% of non-parole periods (‘IMP75%’) will be affected by the baseline sentencing scheme. This is the same as (1) above, except that the top 25% of sentences are not adjusted. This approach is based on the observation that for many offences the distribution of sentences of imprisonment has a long ‘tail’. In other words, there are often a small number of outliers at the upper end of the distribution that are far removed from the bulk of sentences of imprisonment for that offence. It is possible that those outliers will be less affected by the baseline than the bulk of sentences at the middle and lower sections of the distribution. This approach seeks to approximate that effect.

3. All cases that receive a non-parole period in the middle 50% of non-parole periods (‘IMP50%’) will be affected by the baseline sentencing scheme. The top 25% and the bottom 25% are not adjusted. This is a variation of (2) based on the same reasoning.

9.15 In addition to adjusting current imprisonment sentences to account for the introduction of a baseline sentencing scheme, the Council considered it necessary to take into account the effect of the abolition of suspended sentences for ‘serious’ and ‘significant’ offences^[415] committed on or after 1 May 2011.^[416]

9.16 A suspended sentence is a term of imprisonment that is suspended (that is, not activated) wholly or partially, for a specified period (known as the ‘operational period’), subject to the condition that the offender not reoffend during that period.

9.17 Currently, a court is still able to impose a suspended sentence for three of the proposed baseline offences: culpable driving causing death, dangerous driving causing death and common law kidnapping, as these offences are not defined as serious or significant under the Sentencing Act 1991 (Vic). However, the government has stated its intention to abolish suspended sentences ‘for all crimes’ by the end of its first term.^[417] Accordingly, as this effect analysis concerns estimations over the next 11 years, the effect of the abolition of suspended sentences has been taken into account for all baseline offences.

9.18 It is difficult to predict the sentence a court might impose for a charge that would otherwise have received a suspended sentence. For example, the reasons that warranted suspension of an imprisonment sentence may not warrant a community correction order. The Council also notes that new community correction orders commenced on 16 January 2012.^[418] These new orders provide the court with more flexible sentencing options than were previously available. This may affect the court’s decision about whether to impose a non-custodial order or a sentence of imprisonment.

9.19 To account for the abolition of suspended sentences, the Council devised two options:

1. exclude all suspended sentences (that is, assume that all charges that would have received a suspended sentence will instead receive a non-custodial sentence); and

2. include all partially suspended sentences and one half of all wholly suspended sentences (assuming that they will receive a custodial sentence).

9.20 For this second option, cases that fell into the top 50% of wholly suspended sentences (according to the total effective sentence) have been assumed to receive an imprisonment term. To create a non-parole period, that term has been reduced by 25%. The adjustment factor described at [9.11]–[9.12] has then been added to the non-parole period.

9.21 For partially suspended sentences, the adjustment factor has been added to the non-suspended period imposed.

9.22 By combining the three populations (at [9.14]) with each of the two approaches to suspended sentences discussed above (at [9.19]), the Council has been able to examine six scenarios:

1. Scenario 1a (IMP100%): adjustment applied to 100% of non-parole periods but all suspended sentences excluded.

2. Scenario 1b (IMP100% + suspended sentence (SS)): adjustment applied to 100% of non-parole periods and to the non-suspended term of all partially suspended sentences and the top 50% of wholly suspended sentences, applying the adjustment to 75% of the total effective sentence of the suspended term.

3. Scenario 2a (IMP75%): adjustment applied to the lowest 75% of non-parole periods but all suspended sentences excluded.

4. Scenario 2b (IMP75% + SS): adjustment applied to the lowest 75% of non-parole periods and to all partially suspended sentences (non-suspended term) and the top 50% of wholly suspended sentences (75% of total effective sentence).

5. Scenario 3a (IMP50%): adjustment applied to the middle 50% of non-parole periods but all suspended sentences excluded.

6. Scenario 3b (IMP50% + SS): adjustment applied to the middle 50% of non-parole periods and to all partially suspended sentences (non-suspended term) and the top 50% of wholly suspended sentences (75% of total effective sentence).

9.23 For each offence, the adjustment factor and parameter values (that is, imprisonment term percentiles) for each scenario have been determined using four years of higher courts sentencing data, from 2006–07 to 2009–10. The data used for estimating the effects of the baseline sentencing scheme are one year of sentencing data, from the 2009–10 financial year.

9.24 Estimates have not been produced for baseline offences that had fewer than five principal offences sentenced in 2009–10 or the two proposed causing severe injury offences. These offences are child homicide, suicide pact manslaughter, arson causing death, kidnapping (under section 63A of the Crimes Act 1958 (Vic)), making a threat to kill, abduction, assault with intent to rape, abduction of a child under 16 and incest – sibling.

9.25 The offence counting rule used for all data to determine the principal offence is the offence attached to the charge that received the highest sentence. If multiple charges received the same highest sentence, the National Offence Index, which ranks offences, was used. The offence with the highest rank was selected as the principal proven offence.^[419]

9.26 The impacts on sentencing have been determined by applying the adjustment factor under the various scenarios to the 2009–10 sentencing outcomes.

9.27 Measuring the effect of sentencing changes on the prison population is complex. It is particularly important to understand that there is generally a lag between any change in sentencing practices and any resulting effect on the prison population. For example, if a five-year non-parole period is increased to six years, the impact of this change on the prison population will only occur after the fifth year, when there will be one additional prisoner than there otherwise would have been.

9.28 Due to this lag effect, the impact of sentencing changes needs to be considered over a sufficiently long period for any effects to be observed. The time period chosen should reflect the lengths of the vast majority of sentences imposed. Over 95% of non-parole periods were under 11 years for most baseline offences, except murder, trafficking in a large commercial quantity of a drug of dependence and incest. Eleven years was therefore chosen as the reference period.

9.29 In order to obtain 11 years of data, the 2009–10 sentencing data have been replicated over 11 years.

9.30 To estimate the effect on the prison population, the Council has taken the following steps:

9.31 There are a number of key assumptions made in these estimates. Some assumptions relate to the relationship between sentencing outcomes and subsequent time spent in prison, including that:

• prisoners are released from prison on the first possible release date relating to the case (that is, at the end of the non-parole period).^[420]

9.32 As indicated earlier, the final set of assumptions relates to the broad sentencing environment, including:

9.33 As discussed in Chapter 4, the introduction of a baseline sentencing scheme may have a considerable impact on charging practices and pleading behaviour.

9.34 Table 3 shows the distribution of sentence types, both under the control scenario (that is, sentencing practices in 2009–10) and under each estimate scenario. There is no difference in sentence types between the control scenario and scenarios 1a, 2a and 3a. However, for scenarios 1b, 2b and 3b, all partially suspended sentences and half of all wholly suspended sentences have been converted to imprisonment. The remaining half of wholly suspended sentences have been converted to ‘other sentences’, which comprise various non-custodial community-based sentences.

9.35 The most prevalent offence is armed robbery, which was the principal offence in 210 cases, of which 135 received an imprisonment sentence. Aggravated burglary is the next most prevalent, with 163 principal offences, of which less than half received imprisonment (76) and slightly more received a partially or wholly suspended sentence (78).

Table 3: Number of offenders by baseline offence, sentence type and scenario (2009–10 data)

Offence	Control scenario and scenario 1a, 2a and 3a					Scenario 1b, 2b and 3b
Offence	IMP	PSS	WSS	Other	Total	IMP	PSS	WSS	Other	Total
Aggravated burglary	76	21	57	9	163	139	0	0	24	163
Armed robbery	135	12	24	39	210	160	0	0	50	210
Arson	11	2	2	9	24	15	0	0	9	24
Recklessly causing serious injury	60	9	31	12	112	86	0	0	26	112
Intentionally causing serious injury	76	7	12	21	116	91	0	0	25	116
Defensive homicide	7	0	0	0	7	7	0	0	0	7
Manslaughter	17	0	0	1	18	17	0	0	1	18
Murder	24	0	0	2	26	24	0	0	2	26
Rape	52	0	0	1	53	52	0	0	1	53
Sexual penetration with a child under 12	6	0	0	2	8	6	0	0	2	8
Sexual penetration with a child aged between 12 and 16	26	7	16	12	61	42	0	0	19	61
Sexual penetration with a child aged between 12 and 16 (where the child is under the care, supervision or authority of the offender)	6	0	1	0	7	7	0	0	0	7
Persistent sexual abuse of a child under 16	13	0	0	0	13	13	0	0	0	13
Incest – parent or de facto parent	35	0	0	0	35	35	0	0	0	35
Kidnapping – common law	6	3	1	0	10	10	0	0	0	10
Trafficking in a commercial quantity of a drug of dependence	25	0	5	0	30	29	0	0	1	30
Trafficking in a large commercial quantity of a drug of dependence	20	0	1	0	21	21	0	0	0	21
Culpable driving causing death	15	0	0	0	15	15	0	0	0	15
Dangerous driving causing death	10	1	6	1	18	15	0	0	3	18

9.36 Table 4 presents the median non-parole period for each baseline offence under each scenario. Most scenarios for most offences result in an increase in the median non-parole period. In a number of cases, the ‘b’ scenarios (which include all partially suspended sentences and 50% of wholly suspended sentences) have a shorter median non-parole period than the ‘a’ scenarios (which exclude all suspended sentences). This is due to the effect of including suspended sentences, with relatively short sentences bringing down the median.

9.37 Some particularly large increases are observed for sexual penetration with a child under 12,^[421] nearly quadrupling from 2.1 years to 8.1 years across all scenarios. Culpable driving causing death increases by 3.1 and 3.2 years, incest – parent or de facto parent by between 2.3 and 3.3 years and common law kidnapping by as much as 2.6 years (scenario 1a). Trafficking in a commercial quantity of a drug of dependence increases from 2.3 years to 4.3 years.

Table 4: Median non-parole period by baseline offence and scenario (2009–10 data)

Offence	Control	Scenario 1a	Scenario 2a	Scenario 3a	Scenario 1b	Scenario 2b	Scenario 3b
Aggravated burglary	1.5	1.7	1.7	1.7	1.7	1.7	1.7
Armed robbery	2.0	2.4	2.4	2.4	2.4	2.4	2.4
Arson	2.5	3.1	2.8	2.8	2.3	2.3	2.3
Recklessly causing serious injury	1.6	2.2	2.2	2.2	2.1	2.1	2.1
Intentionally causing serious injury	3.0	3.8	3.8	3.8	3.6	3.6	3.6
Defensive homicide	7.0	10.0	8.0	8.0	10.0	8.0	8.0
Manslaughter	5.5	6.8	6.8	6.8	6.8	6.8	6.8
Murder	15.8	17.7	17.7	18.1	17.7	17.7	18.1
Rape	4.0	4.6	4.6	4.6	4.6	4.6	4.6
Sexual penetration with a child under 12	2.1	8.1	8.1	8.1	8.1	8.1	8.1
Sexual penetration with a child aged between 12 and 16	2.8	4.6	3.9	3.9	3.7	3.5	3.5
Sexual penetration with a child aged between 12 and 16 (where the child is under the care, supervision or authority of the offender)	3.9	6.2	6.2	6.2	6.1	6.1	6.1
Persistent sexual abuse of a child under 16	4.2	6.3	6.3	6.3	6.3	6.3	6.3
Incest – parent or de facto parent	6.0	9.3	8.3	8.3	9.3	8.3	8.3
Kidnapping – common law	1.9	4.5	4.5	4.5	3.8	3.8	3.7
Trafficking in a commercial quantity of a drug of dependence	2.3	4.3	4.3	4.3	4.3	4.3	4.3
Trafficking in a large commercial quantity of a drug of dependence	7.0	8.4	8.4	8.4	8.4	8.4	8.4
Culpable driving causing death	4.2	7.4	7.3	7.3	7.4	7.3	7.3
Dangerous driving causing death	1.8	2.6	2.6	1.8	2.7	2.7	2.0

9.38 Table 5 shows the longest non-parole periods under the control scenario and the six test scenarios. The longest non-parole periods under scenario 1a are all higher than those under the control scenario. This is because the adjustment factor has been applied to all non-parole periods.

9.39 Under scenarios 2a and 2b, the longest non-parole periods are generally the same as the longest non-parole periods in the control scenario. This is to be expected because under these scenarios the longest non-parole period generally has not been adjusted. A non-parole period has only been adjusted if it fell within the 75th percentile of non-parole periods for the period 2006–07 to 2009–10. This adjustment occurred for offences such as defensive homicide, sexual penetration with a child under 12,^[422] persistent sexual abuse of a child under 16 and dangerous driving causing death.

Table 5: Longest non-parole period by baseline offence and scenario (2009–10 data)

Offence	Control	Scenario 1a	Scenario 2a	Scenario 3a	Scenario 1b	Scenario 2b	Scenario 3b
Aggravated burglary	6.5	6.7	6.5	6.5	6.7	6.5	6.5
Armed robbery	11.0	11.4	11.0	11.0	11.4	11.0	11.0
Arson	8.0	8.6	8.0	8.0	8.6	8.0	8.0
Recklessly causing serious injury	5.0	5.6	5.0	5.0	5.6	5.0	5.0
Intentionally causing serious injury	18.0	18.8	18.0	18.0	18.8	18.0	18.0
Defensive homicide	8.0	11.0	10.0	10.0	11.0	10.0	10.0
Manslaughter	10.0	11.3	10.0	10.0	11.3	10.0	10.0
Murder	32.0	34.3	32.0	32.0	34.3	32.0	32.0
Rape	22.0	22.6	22.0	22.0	22.6	22.0	22.0
Sexual penetration with a child under 12	4.0	10.0	10.0	10.0	10.0	10.0	10.0
Sexual penetration with a child aged between 12 and 16	8.0	9.8	8.0	8.0	9.8	8.0	8.0
Sexual penetration with a child aged between 12 and 16 (where the child is under the care, supervision or authority of the offender)	10.0	12.3	10.0	10.0	12.3	10.0	10.0
Persistent sexual abuse of a child under 16	9.0	11.2	9.7	9.7	11.2	9.7	9.7
Incest – parent or de facto parent	18.0	21.3	18.0	18.0	21.3	18.0	18.0
Kidnapping – common law	5.3	7.9	5.3	5.3	7.9	5.3	5.3
Trafficking in a commercial quantity of a drug of dependence	12.0	14.0	12.0	12.0	14.0	12.0	12.0
Trafficking in a large commercial quantity of a drug of dependence	15.0	16.4	15.0	15.0	16.4	15.0	15.0
Culpable driving causing death	10.0	13.3	10.0	10.0	13.3	10.0	10.0
Dangerous driving causing death	2.8	3.6	3.6	3.6	3.6	3.6	3.6

9.40 The estimated effects on the prison population of the baseline sentencing scheme (under the six scenarios) are presented in Figures 6 and 10.

9.41 All of the scenarios show that the baseline sentencing scheme will produce a progressive increase in the prison population. This is due to the fact that the baseline level for each offence is higher than the current derived non-parole period midpoint for each offence.

9.42 The estimated increase in prisoners varies according to the time period and the particular scenario. After one year, under the ‘b’ scenarios that assume a portion of suspended sentences will become custodial sentences, the increase is between 110 and 130 prisoners compared with two and 25 prisoners under the ‘a’ scenarios that assume all suspended sentences will become non-custodial sentences.

9.43 After five years, under the ‘b’ scenarios that assume a portion of suspended sentences will become custodial sentences, the estimated increase is between 460 and 600 prisoners compared with 200 and 360 prisoners under the ‘a’ scenarios that assume all suspended sentences will become non-custodial sentences.

9.44 After 11 years, under the ‘b’ scenarios that assume a portion of suspended sentences will become custodial sentences, the increase is between 600 and 870 prisoners. In contrast, under the ‘a’ scenarios that assume all suspended sentences will become non-custodial sentences, the increase is between 350 and 620 prisoners.

9.45 The estimated highest number of additional prisoners over the eleven-year period for each offence and each scenario is shown in Figure 6.

Figure 6: Estimated number of additional prisoners over time following implementation of baseline sentencing by scenario

9.46 Figure 7 shows the scenarios that assume all suspended sentences become non-custodial sentences, the largest increase in prisoners occurring for the offences of incest – parent or de facto parent (91), followed by intentionally causing serious injury (67) and armed robbery (62); the smallest increases occur for the offences of murder (seven), dangerous driving causing death (10) and arson (10).

9.47 The size of the effect on prisoner numbers is related to a combination of the sentence adjustment and the volume of cases sentenced. Offences with large sentence adjustments, such as incest – parent or de facto parent (six years) and culpable driving causing death (three years), have relatively large effects. Small sentence adjustments have relatively small effects, but only for low volume offences, such as arson. Small sentence adjustments to high volume offences (such as armed robbery, intentionally causing serious injury and recklessly causing serious injury) have a relatively large impact.

9.48 For the scenarios that assume a portion of suspended sentences will become custodial sentences, the estimates for a number of offences increase dramatically. These include aggravated burglary (which increases from 26 to 80), recklessly causing serious injury (from 41 to 86) and sexual penetration with a child aged between 12 and 16 (from 50 to 95). The largest increases under this scenario occur for the offences of armed robbery (97), sexual penetration with a child aged between 12 and 16^[423] (95) and intentionally causing serious injury and incest – parent or de facto parent (both 91).

9.49 A pattern similar to that in scenarios 1a and 1b is evident for scenarios 2a and 2b (as shown in Figure 8 and for scenarios 3a and 3b (as shown in Figure 9). However, the increases shown in these latter scenarios are smaller. For example, the increase for the offence of incest – parent or de facto parent under scenario 1a is 91, compared with 68 under scenario 2a and 62 under scenario 3a. As the number of cases to which the adjustment is applied is reduced (being 75% of cases under population 2, and 50% of cases under population 3), so too the resulting number of additional prisoners is reduced.

Figure 7: Highest level of estimated numbers of additional prisoners by offence under scenarios 1a and 1b

Figure 8: Highest level of estimated number of additional prisoners by offence under scenarios 2a and 2b

Figure 9: Highest level of estimated number of additional prisoners by offence under scenarios 3a and 3b

9.50 An important dimension of increasing prisoner numbers is the rate of that increase. The rate at which impacts will be observed for each offence is related to the non-parole period for each offence. For offences with relatively short average non-parole periods, such as armed robbery, recklessly causing serious injury or sexual penetration with a child aged between 12 and 16, most of the impact occurs between years one and five (see Figure 10). For offences with relatively long average non-parole periods, such as incest – parent or de facto parent, the effect begins only after three years but continues steadily through 11 years and beyond.

Figure 10: Estimated number of additional prisoners for selected offences under scenario 1a

9.51 The Council anticipates that the recommended baseline sentencing scheme will result in judges imposing longer non-parole periods for offences covered by the scheme. The prison population will therefore increase. However, the level and rate of the increase will vary depending on a number of factors.

9.52 The effects of the recommended baseline sentencing scheme on sentencing levels and the prison population are difficult to predict. The Council has therefore devised six separate scenarios, which vary in terms of the scope of affected cases (using three different populations) and the assumptions regarding the effects of the abolition of suspended sentences (using two different approaches).

9.53 While contingent upon many assumptions, under each scenario the prison population is predicted to rise. The size of the increase after 11 years is estimated at between 600 and 870 prisoners, should all partially suspended sentences receive a sentence of imprisonment and half of wholly suspended sentences receive a sentence of imprisonment. Should all suspended sentences receive a non-custodial sentence, the estimated increase is lower, at between 350 and 620 additional prisoners.

9.54 The full effect of the baseline scheme will not become apparent immediately following its implementation. Depending on the scenario examined, this increase is estimated to occur between seven and 11 or more years following implementation of the scheme.

10.1 The terms of reference state that the baseline sentencing regime is to operate so that, over time, the Court of Appeal will be able to determine whether or not the median levels of minimum sentences being handed down are in fact aligned with the baseline sentences specified by parliament and, if not, require changes accordingly in sentencing practices.^[424]

10.2 A median is defined as the middle value in a set or distribution of values. The median non-parole period is a statistical representation of the middle value of all of the individual non-parole periods imposed for a particular offence by the courts. For example, the median non-parole period for aggravated burglary for 2006–07 to 2009–10 is 1.5 years. This means that half of all of the non-parole periods imposed were below 1.5 years and half were above.

10.3 The sentencing data collected by the Council, illustrating the median sentences (including the non-parole periods) imposed for offences, are one indication of current sentencing practices.

10.4 The Council recommends that the baseline level represent the middle of the range of seriousness for an offence, taking into account factors relevant to the offence only.

10.5 As an example, the factors that may be relevant to determining whether an aggravated burglary offence is in the middle of the range of seriousness could include whether a weapon was used and what the weapon was, whether there was a physical confrontation with a victim and the degree (if any) of violence used.

10.6 As the median sentence essentially represents a statistical half-way point of the set of sentences handed down by the courts for that offence (rather than a midpoint of the range of sentences), it is not necessarily indicative of an offence that is in the middle of the range of offence seriousness. It may be, for example, that the most common example of an offence is at the lower end of the range of seriousness for that offence. As a result, the median sentence imposed for such an offence will likely also be at the lower end of seriousness and therefore not be indicative of the baseline level, which represents the middle of the range (or ‘midpoint’) of seriousness for that offence.

10.7 Figure 11 illustrates an example of the difference between the median and the midpoint of offence seriousness for an offence where the majority of offending occurs at the lower end of the scale of seriousness. As with this example, the distribution of seriousness for most offences does not follow a normal (‘bell curve’) distribution, and therefore the median sentence will not represent the midpoint.

10.8 Current sentencing practices are not a definitive guide to the seriousness of a particular offence because they take into account a wide range of other factors. These include the offender’s character, any prior convictions, the offender’s degree of remorse and any guilty plea.

10.9 For example, the median non-parole period for the offence of aggravated burglary between 2006–07 and 2009–10 is 1.5 years. However, a case that receives a non-parole period of 1.5 years is unlikely to be a case that is in the middle of the range of seriousness for an aggravated burglary case based on factors relevant to the offence only. This demonstrates that a large number of aggravated burglary cases are in the ‘low level’ of offence seriousness. Consequently, the Council’s recommended baseline level for aggravated burglary is considerably higher than the median.

Figure 11: Difference between the median and the midpoint for an offence with a high volume of offences at the lower end of seriousness

[This graph shows the difference between a median and a midpoint for an offence with a high volume of offences at the lower end of seriousness. The Y axis represents the number of offences. The X axis represents the range of seriousness, from the lowest sentence at the start of the X axis on the left, to the highest sentence on the far right. Halfway between the lowest and highest sentence is the midpoint. The area of the graph is represented by a skewed bell-curve shape, which rises sharply between the lowest sentence and the midpoint on the left, and then trails off to the right in a steady decline between the midpoint and the highest sentence. The median is located at a point between the lowest sentence and the midpoint, where half of the area of the graph is on the left side of the median, and half of the area of the graph is on the right of the median.]

10.10 This considerable difference between the median sentence and the baseline level is also apparent for other offences, such as intentionally causing serious injury, where there is a consistently high volume of cases that exhibit a lower level of seriousness.

10.11 This disparity between the baseline levels and the median was recognised by many stakeholders, including the Criminal Bar Association of Victoria (endorsed by Liberty Victoria)^[425] and Victoria Legal Aid.^[426]

10.12 The derived non-parole period (DNPP) midpoint has been produced by the Council to provide a more meaningful statistical representation of the middle of the range of offence seriousness than the median.

10.13 To determine the derived non-parole period, it was first necessary to derive a non-parole period for each offence as a non-parole period is currently determined for a case as a whole, not for each charge (relevant where there are cases with multiple charges). Once a derived non-parole period had been determined for the imprisonment length of each charge within a case, the midpoint was then calculated by finding the midpoint between the shortest term and the longest term.

10.14 For example, the shortest derived non-parole period for the offence of arson is 0.7 (of a year), and the longest derived non-parole period is 6.2, so the midpoint has been calculated as 3.4 years. An additional step was also taken to account for guilty plea discounts. The steps used to derive this figure and how it has been used to assist the Council in determining the baseline level are explained in more detail at [7.40]–[7.44].

10.15 This calculated figure more accurately represents the baseline level because it is not influenced by offences that have a high volume of instances that cluster around a particular point, whether that be at the higher or the lower end of offence seriousness (such as aggravated burglary).

10.16 When considering what alignment there should be between the baseline levels and current sentencing practices once the baseline sentencing scheme has been in operation for a period of time, it is important to note that the median will almost always be lower than the baseline level because of all the different factors that the median represents. The median incorporates all of the aggravating and mitigating factors (and any discount for a guilty plea or assistance to authorities) and does not represent an offence in the middle of the range of seriousness based solely on offence factors.

10.17 That the median and the baseline represent two different things does not mean there cannot be an explicable relationship between them. For example, as the Council’s effects analysis in Chapter 9 illustrates, the median for many offences is expected to increase following the implementation of the baseline sentencing scheme. This is especially so for those offences where the Council’s proposed baseline level is higher than the derived non-parole period midpoint – such as the baseline levels for sexual offences against children. The other offences for which there is likely to be an increase in the median following the implementation of the baseline sentencing scheme are discussed in Chapter 8.

10.18 Under the Criminal Procedure Act 2009 (Vic), the Court of Appeal has jurisdiction to hear and determine appeals against a sentence^[427] imposed by either the County Court or the Supreme Court.^[428] This role will continue under the baseline sentencing scheme.

10.19 The Council has recently published a statistical research report, Sentence Appeals in Victoria, that comprehensively discusses the appeal framework and the role of the Court of Appeal in the determination of sentence appeals.^[429]

10.20 The Council has not interpreted the terms of reference as requiring that the Court of Appeal perform a more general role in monitoring the application of baseline levels, beyond its ordinary function to remedy errors in sentencing on appeal and provide guideline judgments. The Council considers that such a proposal would be inconsistent with the Court of Appeal’s judicial role.

10.21 The role of the Court of Appeal in reviewing sentences is to determine whether substantial errors have been made and to provide guidance to lower courts.^[430]

10.22 An offender may appeal against sentence if the Court of Appeal grants the offender leave to appeal.^[431] The Director of Public Prosecutions may appeal against a sentence as of right (that is, without need for leave of the court) if the Director considers that there is an error in the sentence and that a different sentence should be imposed, and if satisfied that an appeal should be brought in the public interest.^[432]

10.23 There are two grounds of error in sentencing that may be relevant to appeals to the Court of Appeal: specific error and non-specific error. These grounds of appeal will be equally relevant to cases involving the baseline sentencing scheme.

10.24 The appellant (whether the offender or the Director of Public Prosecutions) must establish that the original sentencing court made a sentencing error. The approach that the Court of Appeal should adopt in correcting sentencing errors is described in R v Taylor and O’Meally:^[433]

It will not proceed by considering at once what the individual members of the bench consider an appropriate punishment. On the contrary it will look at the sentence imposed by the trial judge, and unless it appears that he [sic] has made a mistake as to the facts, or has acted on an erroneous principle of law, or has taken into account some matters which should not be taken into account, or has failed to take into account matters which should have been taken into account, or has clearly given insufficient weight, or excessive weight, to some matter taken into account, or unless the sentence is obviously – not merely arguably – too severe or too lenient, it will not interfere.^[434]

10.25 The specific sources of error referred to in R v Taylor and O’Meally^[435] (listed up to, but not including, the mention of where ‘the sentence is obviously ... too severe or too lenient’)^[436] will be relevant to an appeal against a sentence handed down under the baseline sentencing scheme. For example, if a judge applies the wrong baseline level as the starting point for sentencing a baseline offence, then that specific error may provide grounds for an appeal by either the offender or the Director of Public Prosecutions.

10.26 Similarly, a specific error may provide grounds for appeal if a sentencing court has mischaracterised the seriousness of the offence before it (for example, by determining that an offence is in the higher end of offending when the Court of Appeal considers it is not) or the sentencing court has placed inordinate or insufficient weight on a factor relevant to the offending behaviour.

10.27 The last form of error mentioned in R v Taylor and O’Meally,^[437] referring to a sentence that is ‘obviously ... too severe or too lenient’,^[438] describes a non-specific error in the exercise of the sentencer’s discretion, inferred from either the ‘manifest excess’ or the ‘manifest inadequacy’ of the sentence.^[439]

10.28 The manifest excess (and the manifest inadequacy) ground of appeal is linked to the Court of Appeal’s function of ensuring consistency and certainty of sentence. This is achieved by reducing disparities in sentencing standards while still preserving, as much as possible, the discretion given to sentencing judges.^[440]

10.29 Currently, it is likely that an appellant would attempt to establish error under either of these grounds of appeal by referring to current sentencing practices for the relevant offence or offences. However, for an appeal in relation to a sentence for a baseline offence, the extent to which sentencing practices, prior to the introduction of the scheme, can be taken into account by the Court of Appeal will change.

10.30 A sentencing court is required under section 5 of the Sentencing Act 1991 (Vic) to have regard to ‘current sentencing practices’;^[441] however, the Court of Appeal has commented in R v AB [No 2]^[442] that:

[n]o single matter specified in s 5 is ‘fundamental’ to the fixing of a sentence. The imperative that the sentencing court ‘have regard to’ the enumerated matters requires the judge to consider each of the matters and determine whether any or any particular weight should be given to them. The judge is required only to have regard to the factors so far as they are known to him or her. The provision does not require that the matter in question have an actual influence on the ultimate result. Each matter may inform the ‘instinctive synthesis’ but none is determinative; the emphasis each receives will vary from case to case.^[443]

10.31 Further, in Director of Public Prosecutions v DDJ,^[444] the Court of Appeal has commented on how the consideration of current sentencing practices interacts with the necessary consideration of the maximum penalty for an offence:

Sentencing judges are required by s 5(2)(b) of the Sentencing Act 1991 (Vic) to have regard to current sentencing practices. But they are also required – by s 5(2)(a) – to have regard to the maximum penalty for the offence. The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice. But sentencing judges may not disregard the will of Parliament as expressed in the fixing of the maximum penalty. As this Court said in The Queen v AB (No 2), the setting of the statutory maximum fixes the parameters within which the sentencing discretion is to be exercised.^[445]

10.32 The clear policy objective of the baseline sentencing scheme is to change current sentencing practices for a number of serious offences. The effect that the introduction of the baseline sentencing scheme may have on sentencing practices is considered in the Council’s effects analysis in Chapter 9. That analysis is based on a set of assumptions regarding how courts will sentence under the baseline scheme. How courts apply the baseline sentencing scheme will depend on how the Court of Appeal interprets the amendment to sentencing procedure represented by the baseline scheme, and the subsequent significance of pre-amendment sentencing practices.

10.33 In R v AB [No 2],^[446] the Court of Appeal discussed the utility of current sentencing practices after parliament had prescribed a new maximum penalty for the offence of manslaughter. In describing the role of the maximum penalty, the Court of Appeal said:

The maximum sentence provides a guide as to the seriousness with which a particular offence should be viewed. It serves as a directive to the courts on how to weigh the gravity of such criminal conduct, the maximum penalty itself being prescribed for the worst class of the offence in question.^[447]

10.34 The Court of Appeal further discussed the consequences of an amendment to the maximum penalty, in the following terms:

The sentencing function is committed to judges and magistrates, but the parameters within which the discretion is to be exercised are fixed by Parliament. When the maximum penalty for an offence is increased ... the parameters are thereby changed. Thereafter the guidance to be derived from the pre-amendment sentencing practice is significantly reduced as a result.^[448]

10.35 These comments from the Court of Appeal illustrate how the introduction of a new maximum penalty may diminish the utility of pre-amendment sentencing practices by prescribing a new parameter at the upper limit. The introduction of a baseline level is likely to have an even greater effect on the utility of pre-amendment sentencing practices, by prescribing a new parameter in the middle of the range. The baseline level will be a starting point that represents the middle of the range of seriousness based on offence factors, and that is, in many instances, higher than current sentencing practices.

10.36 The intent behind prescribing a baseline level is to require a court to sentence a baseline offence consistent with what parliament considers to be the appropriate non-parole period for an example of that offence that is in the middle of the range of seriousness.^[449] Consequently, it is anticipated that, if the baseline level is applied as a starting point, sentence lengths will increase for a considerable number of baseline offences (especially those for which the baseline level has been set higher than the derived non-parole period midpoint).

10.37 An increase in sentence lengths will result in an increase in the median sentence. However, as discussed at [10.2]–[10.5], because the median and the baseline level represent different values, the median will not be the same as the baseline level. Whether or not the baseline level and the median are in ‘alignment’ will not be a question of whether the median and the baseline are the same, but rather a question of whether there is an explicable reason for the difference between the two measures.

10.38 The baseline level represents the middle of the range of offence seriousness. However, for those offences where the majority of offending is at a much lower level of seriousness than the baseline level, there will always be a substantial difference between the median and the baseline level.

10.39 The Criminal Bar Association of Victoria noted that a difference between the baseline level and the median will be observed, and submitted that:

the ‘alignment’ which is to be assessed by the Court of Appeal should not be interpreted to refer to a match. Rather, it should be interpreted to refer to a proper ratio.^[450]

10.40 On an appeal against a sentence imposed under the baseline sentencing scheme, the appellant will be required (whether the offender or the Crown) to satisfy the Court of Appeal that any significant difference between the baseline level and the sentence imposed demonstrates that an error in sentencing has occurred. In considering the grounds of appeal, the Court of Appeal will apply the same principles to determine whether there has been a specific or a non-specific error in sentence, and ultimately whether a sentence is proportionate to the criminality of the offending behaviour.

10.41 Alongside determining whether substantial errors have been made, the Court of Appeal’s role includes providing guidance to lower courts on appropriate sentencing in the context of a sentence appeal. As there is likely to be a lag between the introduction of a baseline sentencing scheme and the development of a sentencing practice under that scheme, the Court of Appeal may seek to provide (in appropriate cases) guidance on the use of current sentencing practices (prior to a baseline sentencing scheme) when sentencing for a baseline offence.

10.42 Further, under Part 2AA of the Sentencing Act 1991 (Vic), the Court of Appeal has the legislative authority to issue a guideline judgment containing guidelines that are to be taken into account when, for example, courts sentence offenders under the baseline sentencing scheme. In accordance with the policy objective expressed in the terms of reference, the Court of Appeal could issue guidance in an appropriate case, on, for example, the factors relevant to determining whether an offence is in the middle of the range of seriousness for an offence.^[451]

11.1 The majority of the legislative amendments required to implement the Council’s recommendations on the baseline sentencing scheme are likely to affect the Sentencing Act 1991 (Vic). However, the Council recommends that amendments also be made to the offence penalty provisions contained in the Crimes Act 1958 (Vic) and the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

11.2 The Council notes that its recommendations for suggested amendments may not be exhaustive and that there may be other consequential legislative amendments that the Office of the Chief Parliamentary Counsel considers appropriate or necessary in order to implement the Council’s recommendations.

11.3 Part 3, Division 2 of the Sentencing Act 1991 (Vic) concerns the imposition of custodial orders, including the fixing of a non-parole period by a sentencing court (section 11). While the determination of the most appropriate location in the Act for the baseline amendments is a matter for the Office of the Chief Parliamentary Counsel, it is suggested that the amendments implementing the baseline sentencing scheme be enacted within Division 2.

11.5 The Council considers that the current provisions relating to sentencing should also be preserved and continue to apply under a baseline sentencing scheme, including:

11.6 The Council recommends that the Court of Appeal’s authority under Part 2AA of the Sentencing Act 1991 (Vic) to issue guideline judgments should continue as discussed at [10.42]. For example, the Court of Appeal could issue guidance about the factors relevant to determining whether an offence is in the middle of the range of seriousness for that offence. This guidance should not be inconsistent with any prescribed baseline level.

11.7 The Crimes Act 1958 (Vic) contains the penalty provisions for all baseline offences, save for the drug offences of trafficking in a large commercial quantity of a drug of dependence and trafficking in a commercial quantity of a drug of dependence.

11.8 For transparency and accessibility, the Council recommends that consideration be given to specifying the baseline level alongside the stated maximum penalty for each baseline offence in the Crimes Act 1958 (Vic), including the penalty provisions relating to common law offences in section 320 of that Act.

11.9 The Council notes that for the offences of incest – parent or de facto parent and incest – sibling, the baseline level will only apply to those offences when they are committed in the circumstances that bring them within the definition of a ‘serious’ offence in section 3 of the Sentencing Act 1991 (Vic).

11.10 The Council similarly recommends that the baseline level be specified alongside the maximum penalty for the two baseline offences contained in the Drugs, Poisons and Controlled Substances Act 1981 (Vic), being:

11.11 The Council does not recommend that the functions of the Court of Appeal be extended beyond its present jurisdiction as a court of review in individual cases, to encompass a broader responsibility requiring the Court of Appeal to monitor or review sentencing practices generally. The Council considers that such a proposal would be inconsistent with the judicial role of the Court of Appeal.

11.12 The implementation of a baseline sentencing scheme requires consideration of many complex issues and will have potentially wide-ranging implications for a number of areas including the courts, the corrections system, Victoria Police, Victoria Legal Aid and the Office of Public Prosecutions. Given these issues, the Council suggests that consideration should be given to providing sufficient time between the legislative introduction of the baseline sentencing scheme and its practical implementation to allow for adequate preparation.

The Council recommends that current provisions relating to sentencing should also be preserved and will apply under a baseline sentencing scheme, including:

The Council recommends that there should be sufficient time between the legislative introduction of the baseline sentencing scheme and its practical implementation to allow for adequate preparation.

12.1 A common concern expressed by stakeholders was that the introduction of baseline sentencing would place significant extra pressure on the existing resources of the courts, Victoria Legal Aid, the Office of Public Prosecutions and the prison system.^[452]

12.2 One of the reasons for this is that many stakeholders believe that there will be a decrease in the number of people pleading guilty due to ‘the high likelihood of a sentence of imprisonment even on a guilty plea, and a consequent increase in lengthier, more complex trials’.^[453]

12.3 The reasons why a plea of guilty, in appropriate circumstances, is encouraged include that:

12.4 The Law Institute of Victoria submitted that due to defendants being more likely to take matters to trial if charged with baseline offences, further strain would be put ‘on the courts, the OPP and the legal aid dollar’.^[454] They submitted that this may ‘postpone the resolution of matters for victims of crime’.^[455]

12.5 In addition to the effect on pleading practices, the Criminal Bar Association of Victoria (endorsed by Liberty Victoria) pointed to what it considers to be ‘greater complexity’ and ‘length’ of hearings due to discussion of ‘where on the range of, for example, objective seriousness an offence fell’^[456] (it also considered that this consequence would be even greater if a Combined Model were adopted). The result of this, the Association submitted, would be:

12.6 Victoria Legal Aid submitted that there would be ‘[m]ore appeals against sentence as the system of baseline sentencing settles’.^[458]

12.7 Liberty Victoria was concerned about the effect of the baseline sentencing scheme on ‘an already strained indictable trial list in the County Court’.^[459]

12.8 The County Court also expressed concerns about the effect of baseline sentencing on pleading practices and increased court delays at a time when the County Court is being encouraged by the government to implement greater efficiencies.^[460] In its annual report, the County Court commented that recent sentencing changes (which would include the proposed introduction of a baseline sentencing scheme) have ‘the potential to undo any reduction in delay achieved thus far’.^[461]

12.9 The Magistrates’ Court expressed concern regarding the impact on the court if those baseline offences capable of being heard and determined summarily were not excluded from the baseline sentencing scheme when heard and determined in the Magistrates’ Court (see [5.6]).

[i]rrespective of a qualification excluding matters determined summarily, the Court would nonetheless expect an increase in such cases in the committal stream, as the legislative baseline sentences would be motivation/justification for informants to initiate in the indictable stream, and will also be a factor in the determination of application for summary jurisdiction.

The Court would also expect baseline sentences to result in a spike in contested committals generally, with the proposed minimum sentence providing a disincentive to an accused to plead guilty at the earliest opportunity and proceed through the Magistrates’ Court to the County Court by way of a straight hand-up brief.^[462]

12.11 In addition to the effect on the courts, legal aid and prosecutors, concern was expressed by stakeholders about the effect of the baseline sentencing scheme on the prison system, which, they submitted, is already at capacity. In particular, there was concern from groups such as Jesuit Social Services, for example, that these impacts ‘will fall upon the most disadvantaged and marginalised within our community – the mentally ill, intellectually disabled, Indigenous and young people’^[463] without ‘commensurate increases in health, welfare and rehabilitation services’ as a result of the increase in sentence lengths.^[464]

12.12 In 2010, the New South Wales Judicial Commission examined the effect of the New South Wales standard non-parole period on the justice system. The Judicial Commission found that since the implementation of the standard non-parole period scheme:

• there was a small decline in the rate of appeals against the severity of sentence (from 15.0% to 12.6%);^[465]

• there was an increase in appeals relating to inadequacy of sentence (from 2.8% to 3.9%);^[466]

• Crown appeals now represent a larger proportion of all sentence appeals following commencement of the statutory scheme; and^[467]

• there was an increase in sentence lengths for most of the offences captured by the standard non-parole period.^[468]

12.13 While the review of the New South Wales standard non-parole period provides some useful information on the potential effects of a standard non-parole scheme, it is not directly comparable to the Victorian baseline sentencing scheme. The New South Wales standard non-parole period scheme has only directly applied^[469] to a limited number of cases whereas the Victorian scheme will apply as a starting point to the sentencing of all baseline offences.

12.14 Under the provisions of Part 5.6 of the Criminal Procedure Act 2009 (Vic), an accused person who has been committed for trial on indictment in either the County Court or the Supreme Court may apply^[470] to the court for a sentence indication.^[471] That indication is whether, if the accused pleads guilty to the charge on indictment, the court would, or would not, be likely to impose a sentence of immediate imprisonment.

12.15 If the court indicates that it would not be likely to impose a sentence on the accused of immediate imprisonment and the accused then pleads guilty at the first available opportunity, the court cannot subsequently impose a sentence of immediate imprisonment.^[472]

12.16 As the baseline sentencing scheme will only apply to the sentencing of baseline offences when a court intends to impose an immediate term of imprisonment, it is likely that a sentence indication may be of greater value to a considerable number of offenders. Consequently, there may be more applications for a sentence indication after the commencement of the baseline sentencing scheme, which would have a resulting impact on court resources.

12.17 Jesuit Social Services noted that their submissions on the baseline sentencing scheme:

apply equally, and more so, to the needs of the Aboriginal community given [their] over-representation and in recognition of their unique culture, and historical and continuing experience of disadvantage, including through direct interventions of Corrections and Community Service sectors.^[473]

12.18 The Victorian Aboriginal Legal Service also expressed particular concern regarding the effect that the baseline sentencing scheme will have on the Koori Court system, and urged the Council to ‘consider what this scheme would mean for the Koori Court system and how it would likely be applied’.^[474]

12.19 The Council notes that, in accordance with its recommendation that the baseline sentencing scheme be excluded from summary jurisdictions, baseline sentencing will not apply to the Koori Court Division of the Magistrates’ Court. The baseline sentencing scheme will apply, however, to those offenders sentenced to imprisonment for a baseline offence in the Koori Court Division of the County Court.

12.20 The County Koori Court was established as a division of the County Court by the County Court Amendment (Koori Court) Act 2008 (Vic). The County Koori Court is a pilot project that commenced in the Latrobe Valley following the success of the Koori Court Division of the Magistrates’ Court.^[475] The court aims to provide a more culturally relevant, comprehensive and inclusive sentencing process, with greater participation of the Aboriginal community.^[476] However, it does not apply any form of substantive customary laws or impose customary penalties.^[477]

12.21 The Koori Court Division of the County Court has jurisdiction in limited circumstances, namely, when:

• the judge considers that it is appropriate for the Koori Court to determine the matter.^[478]

12.22 After a formal arraignment by the judge while seated at the bench, all parties, including the judge, the offender, generally two Elders or Respected Persons^[479] (or one of each), a prosecutor from the Office of Public Prosecutions and the defence lawyer, a corrections officer, a Koori Court officer and family members or support persons for the offender, engage in a ‘sentencing conversation’.^[480]

12.23 During this conversation, the judge is not robed, and all participants, including the judge and the offender, sit around an oval table. An Elder or a Respected Person sits on either side of the judge but does not determine or address a sentencing outcome. The sentencing conversation allows each participant the opportunity to speak and to be heard, and seeks to directly address (among other matters) the offender’s behaviour, including the causes behind the offending, the offender’s prior history and any efforts towards, and potential for, rehabilitation. The judge then returns to the bench to formally sentence the offender.

12.24 As with the sentencing of offenders in the mainstream County Court, in the County Koori Court the baseline sentencing scheme will only apply to the sentencing of offenders convicted of a baseline offence when the judge has decided to impose a sentence of imprisonment with a non-parole period.

12.25 The Council considers that the same factors and circumstances discussed in the sentencing conversation that presently aggravate or mitigate an offender’s sentence would continue to be considered and applied in the same way by the judge to determine the adjusted baseline under the baseline sentencing scheme.

12.26 The baseline level represents the starting point for the judge when determining the non-parole period for a baseline offence. The particular circumstances of the case before the court, discussed in the sentencing conversation, will therefore be considered by the judge when moving away from the baseline level, in order to reach a just sentence.

12.27 It is beyond the scope of this reference for the Council to consider whether any constitutional issues will arise from the implementation of a baseline sentencing scheme, in particular, whether the scheme conflicts with the constitutional integrity of the courts under Chapter III of the Commonwealth Constitution.

12.28 The Council notes, however, the High Court’s recent decision in Muldrock v The Queen,^[481] in which the High Court determined that the New South Wales courts’ interpretation of the standard non-parole period as a starting point was incorrect. This decision was not determined on the basis of constitutional reasons but because of ordinary principles of statutory interpretation and common law presumptions. The High Court determined that there was nothing in the New South Wales legislation that expressly required the New South Wales courts to use the standard non-parole period as a starting point and to do so was inconsistent with common law presumptions concerning the court’s discretion.^[482]

12.29 Decisions by the New South Wales Court of Criminal Appeal since Muldrock v The Queen^[483] have confirmed that the standard non-parole period is to be applied as guidance only.^[484]

12.30 The terms of reference for the implementation of baseline sentencing in Victoria suggest that the legislation implementing the baseline sentencing scheme will expressly state that it is to act as a starting point. The question of whether this will resolve the issues raised in Muldrock v The Queen^[485] or whether the scheme will be able to be challenged on constitutional grounds is beyond the scope of the Council’s reference.

12.32 Particular human rights (under both the Charter and international human rights obligations) that were raised by stakeholders as being relevant to the implementation of a baseline sentencing scheme were the rights of the child.^[486] In particular, section 25(3) of the Charter prescribes that:

a child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child’s rehabilitation.

Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

12.34 The Council acknowledges these rights and, as discussed in Chapter 5, recommends that the baseline sentencing scheme should not apply to children because of their particular vulnerability within the justice system.

12.35 Section 27(2) of the Charter confirms the existing common law presumption that changes to sentencing laws should not operate retrospectively unless there is an express intention to do so, as discussed at [3.23].^[487] Consistent with this provision, the Council has provided its advice (and estimations of likely effects) on the assumption that the baseline sentencing scheme will only apply to offenders who commit a baseline offence on or after commencement of the baseline sentencing scheme.

12.36 The terms of reference ask the Council to examine the likely effects of the recommended baseline sentencing scheme on sentencing levels and on the prison population.

12.37 In response to this request, the Council has produced a set of estimates based on various scenarios. These estimates are set out in Chapter 9 of this report.

12.38 The estimates do not represent forecasts of the actual numbers of prisoners in future years. The actual numbers of persons serving sentences for these offences in future years will be affected by a wide range of factors that may include population growth and other demographic changes as well as possible changes in the prevalence, reporting, investigation and prosecution of the offences. The estimates do not seek to incorporate these factors as they are highly uncertain and they are not necessary for the purpose of this advice. For example, the estimates do not take into account any changes in pleading practices or the granting of bail.

12.39 Although the Council’s analysis is based on estimates only and does not take into account a number of factors, the Council anticipates that the recommended baseline scheme will result in judges imposing longer non-parole periods for many of the offences covered by the scheme. The prison population will therefore increase. A number of stakeholders expressed concern over the impact of an increased prison population on an already overburdened system, in terms of both accommodation and access to resources such as rehabilitation programs.^[488]

12.40 Jesuit Social Services commented that the potential increase in prisoner numbers:

is particularly concerning given the wide ranging documentation of current over-crowding and inadequacy of health, education and welfare services in Victoria’s adult prisons and youth justice centres.^[489]

12.41 Jesuit Social Services further submitted that constraints placed upon prison services ‘will fall upon the most disadvantaged and marginalised within our community – the mentally ill, intellectually disabled, Indigenous and young people’.^[490] Other stakeholders, such as the Fitzroy Legal Service, expressed concern that overly punitive measures or the heavy use of imprisonment ‘is ineffective as a crime control strategy’.^[491] It added that an ‘emphasis on imprisonment diverts resources from other crime control policies, such as early intervention and other preventative measures, that may more effectively promote community safety’.^[492]

12.42 While the Council acknowledges these concerns, as the submissions relate to the merits of a baseline sentencing scheme, the Council makes no comment on them.

12.43 As discussed in Chapter 9, the Council’s effects analysis does not represent forecasts of the actual numbers of prisoners in future years. The actual numbers of persons serving sentences for these offences in future years will be affected by a wide range of factors that may include population growth and other demographic changes as well as possible changes in the prevalence, reporting, investigation and prosecution of the offences.

12.44 The effects on sentencing levels and the prison population of the recommended baseline sentencing scheme are difficult to predict. The full impact of the baseline scheme will not become apparent immediately following its implementation.

12.45 Given these factors and the concern expressed by stakeholders about the implementation of a baseline sentencing scheme, the Council considers that future monitoring and evaluation of the operation of the baseline sentencing scheme are warranted and, in particular, its effect on charging and pleading practices. This monitoring is separate from the role that the Court of Appeal will play in examining the alignment of current sentencing practices with the baseline.

12.46 A number of stakeholders also submitted that there should be a trial of a smaller number of offences than those currently proposed to determine the impact of a baseline sentencing scheme before it is extended to a substantial number of offences.^[493] As the Council was not asked whether any offences should be excluded from the proposed baseline offences, it makes no comment on this issue.

12.47 The implementation of a baseline sentencing scheme requires consideration of many complex issues and will have potentially wide-ranging implications for a number of areas, including the courts, legal aid, the police, the Office of Public Prosecutions and the corrections system. Given these issues, the Council considers that there should be sufficient time between the legislative introduction of the baseline sentencing scheme and its practical implementation to allow for adequate preparation.

Respondents to the government’s ‘My Views Survey’ were asked for their view on the appropriate sentence, including the non-parole period, for a particular offender based on the offence vignettes presented in the survey. The Department of Justice published the results of these responses. The tables below, which have been reproduced by the Council with the permission of the Department of Justice, summarise these responses in relation to the non-parole period.

Case 14 – Trafficking in a large commercial quantity of a drug of dependence

Offences	Maximum penalty	Notes
Murder	Life
Trafficking in a large commercial quantity of a drug of dependence	Life
Aggravated burglary	25 years	Not classed as a significant offence when determined in the Magistrates’ Court
Armed robbery	25 years
Arson causing death	25 years
Incest – parent or de facto parent (where either party was under 18 or did not consent)	25 years
Kidnapping	25 years
Persistent sexual abuse with a child under 16	25 years
Rape	25 years
Sexual penetration with a child under 10	25 years	Now repealed^a
Sexual penetration with a child under 12	25 years
Trafficking in a commercial quantity of a drug of dependence	25 years
Child homicide	20 years
Defensive homicide	20 years
Intentionally causing serious injury	20 years
Manslaughter	20 years
Arson	15 years	Not classed as a significant offence when determined in the Magistrates’ Court
Recklessly causing serious injury	15 years	Not classed as a significant offence when determined in the Magistrates’ Court
Sexual penetration with a child aged between 12 and 16 (where the child is under the care, supervision or authority of the offender)	15 years
Abduction or detention	10 years
Assault with intent to rape	10 years
Sexual penetration with a child aged between 12 and 16	10 years	Maximum penalty is 15 years if the child was under the care, supervision or authority of the offender
Sexual penetration with a child aged between 10 and 16	10 years	Now repealed^a
Threats to kill	10 years
Abduction of a child under the age of 16	5 years
Incest – sibling (where either party was under 18 or did not consent)	5 years
Conspiracy or incitement to commit any of these offences^b	Liable to the maximum prescribed for the substantive offence
Attempting to commit any of these offences^c	Liable to the maximum penalty one level lower than that prescribed for the completed offence

^a The offence of sexual penetration with a child under 10 was repealed by the Crimes Legislation Amendment Act 2010 (Vic). Sexual penetration with a child under 12 (with a maximum penalty of 25 years) was enacted as a new aggravated form of the offence of sexual penetration with a child under 16.

Date	Attendees
6 October 2011	Judge James Montgomery, County Court Mary Anne Robinson, VACRO Greg Lyon, SC, Criminal Bar Association of Victoria Pat Doyle, Criminal Bar Association of Victoria Jeremy Cass, Victoria Legal Aid John McLaughlin, Victoria Legal Aid Barbara Rozenes, Sentencing Advisory Council Michelle McDonnell, Federation of Community Legal Centres Robert Chamberlain, Corrections Victoria Kathryn Anderson, Youth Justice and Youth Services, Department of Human Services
10 October 2011	Jenna Tuke, Witness Assistance Service Anne O’Brien, Witness Assistance Service Jan Donaldson, Windmere Child and Family Services Suzanne Whiting, Victims Support Agency Vicki Bahen, Child Witness Service Carolyn Worth, Victorian Centres Against Sexual Assault Forum Karen Hogan, Gatehouse Noel McNamara, Victorian Crime Victims Support Association Phillip Lillingston, Victorian Crime Victims Support Association Penny Martin, Working Against Culpable Driving Margaret Markovic, Working Against Culpable Driving George Halvagis, Victorian Homicide Victims’ Support Group Janine Greening, Victorian Homicide Victims’ Support Group Dianne Winterbine, Victorian Homicide Victims’ Support Group
13 October 2011	Judge Paul Grant, President, Children’s Court John Champion, Director of Public Prosecutions Joe Connolly, Office of Public Prosecutions Marcus Williams, Victoria Legal Aid Brigid Foster, Law Institute of Victoria James Dowsley, Law Institute of Victoria Sergeant Anne McLaughlin, Victoria Police John Feeny, Victoria Police Magistrate Charlie Rozencwajg, Magistrates’ Court Magistrate Suzanne Cameron, Magistrates’ Court Anna Radonic, Youth Law

In determining the baseline levels, the Council considered a number of different qualitative and statistical data sources, including:

This appendix contains a representative summary of the data that the Council relied upon in determining the baseline level for each baseline offence.

Definition	A simplified definition, identifying the particular elements of the offence.
Maximum penalty	The maximum penalty prescribed for the offence.
Offence history/particulars	Select information on the legislative history of the offence, which may include penalty history, legislative amendments and parliamentary Second Reading Speeches.
Offence seriousness – community panels	A summary of key findings (if any) from the Council’s research on offence seriousness contained in its report, Community Attitudes to Offence Seriousness.
Judicial commentary	Select case or cases relating to the offence that may: highlight judicial commentary of an example of an offence within a particular range of seriousness (for example, low, middle, or high); or describe the level of seriousness of an offence; or comment on current sentencing practices for an offence. (Note that these cases do not represent an exhaustive survey of judicial commentary for the particular offence.)
DPP challenge?	Whether or not the offence was the subject of, or proposed to be the subject of, the Director of Public Prosecutions’ challenge to current sentencing practices.

The quantitative statistical data for each offence then follow the descriptive data described above.

Definition	Killing a person by an act that is intended to kill or really seriously injure that person or killing a person by an act that is done with the knowledge that someone would probably die or suffer really serious injury.
Maximum penalty	Level 1 imprisonment (life).
Offence history/particulars	Common law offence, penalty prescribed by section 3 of the Crimes Act 1958 (Vic).
Offence seriousness – community panels	Highest level of seriousness – mean ranking of 9.9 (level 10 in scale of seriousness) and first in paired comparisons scale of seriousness. High agreement (SD = 0.3) – combination of high culpability/high harm influential.
Judicial commentary	R v Dupas [2004] VSC 281 (16 August 2004): ‘The offence for which you have been found guilty is the most serious crime known to our legal system. It involved the intentional deprivation by you of the life of another human being. You have violated the most sacred and unique right any person has, namely, the right to live his or her life as they wish. [The victim] had the same right to life as each and every other member of our community. You have taken that from her, and have thereby done the greatest wrong known to our law’.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	96
% proven charges that received imprisonment	100%
% of principal proven charges that received a total effective sentence of imprisonment	100%
Median imprisonment term for proven charges that received imprisonment	19.0
Median total effective imprisonment term for principal proven charges	20.0
Median non-parole period for principal proven charges	16.0
Range of imprisonment terms for proven charges	Minimum: 8 years Longest: Life
Range of total effective imprisonment terms for principal proven charges	Minimum: 10.5 years Longest: Life
Range of non-parole periods for principal proven charges	Minimum: 6.0 years Longest: 35.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	20.50
Derived non-parole period (including appeals and prior to guilty plea)	18.5

Definition	Killing a person by an act that would constitute murder but that the act was done with the unreasonable belief by the offender that it was necessary to defend him- or herself (or another person) from death or really serious injury.
Maximum penalty	Level 3 imprisonment (20 years).
Offence history/particulars	Introduced by the Crimes (Homicide) Act 2005 (Vic); changing the way self-defence operates in relation to murder. If the accused person believed that it was necessary to do what he or she did to defend himself, herself or another from the infliction of death or really serious injury, the accused will be not guilty of murder. A finding that the accused is not guilty of murder means the second test then arises: whether the person had reasonable grounds for his or her belief. This test determines whether the accused person is guilty of the offence of defensive homicide or is completely acquitted. Second Reading Speech (Rob Hulls, 6 October 2005, 1350–1351): ‘Under the earlier common-law rule of excessive self-defence a person who has a genuine belief that his or her conduct is necessary in self-defence, but who is not considered to have acted reasonably is guilty of the lesser offence of manslaughter. However, there could be confusion about the basis of the jury’s verdict, as there were several potentially inconsistent ways that a jury could reach a manslaughter verdict. The new offence of defensive homicide will clearly indicate the basis of the jury’s verdict to the sentencing judge. This will enable the sentencing judge to impose a sentence that accurately reflects the crime that the person has committed’.
Offence seriousness community panels	Not measured.
Judicial commentary	Babic v The Queen (2010) 28 VR 297: Defensive homicide reforms were intended to ‘replace existing common law defences to homicide, including self-defence, with statutory defences and in the case of excessive self-defence, with a new offence’. Wilson v The Queen [2011] VSCA 12 (2 February 2011): Sentencing standards for defensive homicide; case identified as serious example of offending; defensive homicide offenders always to be sentenced as subjective self-defenders – no additional mitigation in acceptance that offender acted subjectively in self defence; gravity of offences committed with intent to cause really serious injury, compared with offences committed with intent to kill; non-fatal intent does not significantly mitigate murder or defensive homicide; aggravation of defensive offending where offender created the need for self-defence. The Court of Appeal did not adjust the original sentence of 10 years with a non-parole period of seven years. Director of Public Prosecutions v Edwards [2009] VSCA 232 (9 October 2009): ‘it is important to keep in mind that the offence is defensive homicide (which but for the subjective element would be murder), and the fact that the legislation provides for the same maximum penalty for defensive homicide and manslaughter should not blur the lines between the two’. The Court of Appeal did not adjust the original sentence of 10 years with a non-parole period of eight years.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	13
% proven charges that received imprisonment	100%
% of principal proven charges that received a total effective sentence of imprisonment	100%
Median imprisonment term for proven charges that received imprisonment	9.0
Median total effective imprisonment term for principal proven charges	9.0
Median non-parole period for principal proven charges	6.0
Range of imprisonment terms for proven charges	Minimum: 7.0 years Longest: 12.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 7.0 years Longest: 12.0 years
Range of non-parole periods for principal proven charges	Minimum: 4.0 years Longest: 8.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	6.0
Derived non-parole period (including appeals and prior to guilty plea)	9.0

Definition	Killing a child under the age of six years in circumstances that would constitute manslaughter (voluntary or involuntary) – see below.
Maximum penalty	Level 3 imprisonment (20 years).
Offence history/particulars	Introduced in 2008 in response to a series of cases involving the deaths of young children, where the offender pleaded guilty to manslaughter and most of the sentences were in the seven- to nine-year range. There was significant public criticism that the sentences were too low, considering the 20 years’ maximum penalty. The new offence was intended to encourage the courts to impose sentences much closer to the maximum than the current sentences for manslaughter by identifying the age and vulnerability of the victim as aggravating circumstances. By introducing a new offence, the government intended the courts to establish a new sentencing practice. The new offence is closely related to manslaughter, and the sentencing practices for manslaughter continue to be relevant, but it was hoped they would be less constraining than they have been in the past. There have been no prosecutions for child homicide. The rationale for the new offence suggests the baseline should be higher than that of manslaughter.
Offence seriousness – community panels	Not measured.
Judicial commentary	No prosecutions to date. However, the new offence arose from concern regarding sentencing of manslaughter offenders where the victim was a child, in particular, Director of Public Prosecutions v Arney [2007] VSCA 126 (12 June 2007): Where the victim is a baby, the Court of Appeal indicated that the sentencing practices in manslaughter cases ‘appear to ill accord with the requirements of just punishment’ and have resulted in sentences that fail to represent the seriousness of the cases. Initially seven years; resentenced to a total effective sentence of nine years with an eight-year non-parole period.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	0
% proven charges that received imprisonment	Insufficient data available
% of principal proven charges that received a total effective sentence of imprisonment	Insufficient data available
Median imprisonment term for proven charges that received imprisonment	Insufficient data available
Median total effective imprisonment term for principal proven charges	Insufficient data available
Median non-parole period for principal proven charges	Insufficient data available
Range of imprisonment terms for proven charges	Insufficient data available
Range of total effective imprisonment terms for principal proven charges	Insufficient data available
Range of non-parole periods for principal proven charges	Insufficient data available
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	Insufficient data available
Derived non-parole period (including appeals and prior to guilty plea)	Insufficient data available

Definition	Intentionally or dishonestly (with a view to gain) damaging or destroying property by fire without lawful excuse and intending to cause such damage or destruction or to endanger the life of another (or knowing that these will likely occur), thereby causing the death of another.
Maximum penalty	Level 2 imprisonment (25 years).
Offence history/particulars	Introduced by the Sentencing and Other Acts (Amendment) Act 1997 (Vic). The maximum penalty was set at the current Level 2 imprisonment (25 years) at the time the offence was introduced. In the Second Reading Speech the Attorney-General, Jan Wade, stated: ‘[t]he government believes the act of arson is so intrinsically dangerous that when a death results, the maximum penalty available should reflect that danger’.
Offence seriousness – community panels	Mean ranking of 7.1 (level 7 in scale of seriousness) – lower than manslaughter, culpable driving causing death, intentionally causing serious injury and negligently causing serious injury but on same level as recklessly causing serious injury. Low agreement (SD = 2.0) due to different approaches to harm and culpability. Some saw it as very serious due to emphasis on high harm but many saw it as less serious due to lower level of culpability. For example, culpability in culpable driving causing death was seen as an extra ‘level’ of recklessness/negligence.
Judicial commentary	R v Chambers [2005] VSCA 34; (2005) 152 A Crim R 164: ‘it was appropriate for the judge to use manslaughter sentences as a guide in sentencing the appellant. Far from his Honour placing too much weight on the maximum penalty, there would, I think have been error if his Honour had failed to bear it in mind’. Two charges, seven years each, three years cumulated – total effective sentence of 10 years with a 6.5 year non-parole period. Director of Public Prosecutions v Bennett [2004] VSC 207 (4 June 2004): One charge of arson causing death (received 10 years), two charges of reckless conduct endangering life (five years each, wholly concurrent); two years cumulative: 12 years total effective sentence with an eight-year non-parole period.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence (Table 3)	0
% proven charges that received imprisonment	Insufficient data available
% of principal proven charges that received a total effective sentence of imprisonment	Insufficient data available
Median imprisonment term for proven charges that received imprisonment	Insufficient data available
Median total effective imprisonment term for principal proven charges	Insufficient data available
Median non-parole period for principal proven charges	Insufficient data available
Range of imprisonment terms for proven charges	Insufficient data available
Range of total effective imprisonment terms for principal proven charges	Insufficient data available
Range of non-parole periods for principal proven charges	Insufficient data available
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	Insufficient data available
Derived non-parole period (including appeals and prior to guilty plea)	Insufficient data available

Definition	Killing a person by an act that would constitute murder were it not for the mitigating effect of particular circumstances that constitute voluntary or involuntary manslaughter. Voluntary manslaughter – killing a person by an act that is intended to kill or really seriously injure that person or knowledge that someone would probably die or suffer really serious injury where there was the presence of a suicide pact (see ‘Manslaughter – suicide pact’). Involuntary manslaughter – killing a person by an act that is not intended to kill or really seriously injure someone where: a. the act causing death was unlawful and dangerous and there was an appreciable risk of serious injury being caused; or b. the act causing death was a breach of the duty of care owed to the deceased that was of such magnitude that it amounted to ‘gross negligence’.
Maximum penalty	Level 3 imprisonment (20 years).
Offence history/particulars	On 22 April 1992 the maximum penalty was the former Level 3 imprisonment (15 years) for offences committed on or after 22 April 1992. The maximum penalty was increased to the current Level 5 imprisonment (20 years) for offences committed on or after 1 September 1997. The penalty for manslaughter – suicide pact is Level 5 imprisonment (10 years).
Offence seriousness – community panels	Community panels considered the unlawful and dangerous act form of manslaughter – mean ranking of 8.3 (level 8 in scale of seriousness) – below reckless and intentional murder and on the same level as culpable driving causing death. Medium agreement (SD = 1.4) – many distinguished level of culpability from murder but were influenced by recklessness as to high risk of the act (throwing a knife) and harm caused.
Judicial commentary	Babic v The Queen (2010) 28 VR 297: Defensive homicide reforms were intended to ‘replace existing common law defences to homicide, including self-defence, with statutory defences and in the case of excessive self-defence, with a new offence’. In other words, the only remaining voluntary form of manslaughter is suicide pact manslaughter. The old common law partial defence to murder (by way of excessive force self-defence) form of manslaughter no longer applies. Sherna v The Queen [2011] VSCA 242 (23 August 2011): ‘Manslaughter is a crime which can be committed in ways the gravity of which much differ[s]. For that reason, I have said nothing about the statistical ‘mean’ and ‘average’ sentence for the offence. Again, I should make it clear that the statistics which I have mentioned do not decide the fate of this appeal. On the other hand, they do reveal, I consider, that the sentence was an extreme one, and the extent to which it departed from sentences imposed even for those few worst instances of manslaughter. It cannot be doubted that the sentence considerably departed from current sentencing practices even for those few worst instances of the offence’. The sentence imposed was 14 years with a ten-year non-parole period. R v AB [No 2] [2008] VSCA 39; (2008) 18 VR 391: No plea of guilty. Case was within ‘the category of the gravest of homicides short of murder’. The sentence imposed was 15 years with an eleven-year non-parole period.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	79
% proven charges that received imprisonment	86.1%
% of principal proven charges that received a total effective sentence of imprisonment	86.1%
Median imprisonment term for proven charges that received imprisonment	7.5
Median total effective imprisonment term for principal proven charges	8.0
Median non-parole period for principal proven charges	5.0
Range of imprisonment terms for proven charges	Minimum: 4.0 years Longest: 14.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 4.0 years Longest: 14.0 years
Range of non-parole periods for principal proven charges	Minimum: 2.0 years Longest: 10.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	6.0
Derived non-parole period (including appeals and prior to guilty plea)	8.7

Definition	Killing a person by the driving of a motor vehicle where the driving was ‘culpable’, in that the driving was either reckless or negligent or the offender was under the influence of alcohol or a drug to such an extent as to be incapable of having proper control of the motor vehicle.
Maximum penalty	Level 3 imprisonment (20 years).
Offence history/particulars	The offence was first introduced in Victoria in 1967. At the time it was introduced it had a statutory maximum penalty of seven years’ imprisonment. Since 1967 there have been three increases in the maximum penalty for culpable driving causing death: it was increased from 7 to 10 years in 1991, to 15 years in 1992 and finally to 20 years in 1997, the current statutory maximum penalty. Since 1992 the maximum penalty for culpable driving has been the same as that for manslaughter. The increases to the maximum penalty for culpable driving over time have reflected an increasing community awareness and concern about serious road collisions that occur as a result of culpably negligent driving. In the Second Reading Speech of the Bill that introduced the 1997 amendment, the Minister for Small Business, Louise Asher, commented that the increase in the maximum penalty for this offence, manslaughter and intentionally causing serious injury ‘reflects the high value that the community places upon life and personal safety’.
Offence seriousness – community panels	Mean ranking of 7.9 (level 8 in scale of seriousness) – same level as unlawful and dangerous act manslaughter but higher than arson causing death. Same level as negligently causing serious injury, which had same facts but harm was permanent vegetative state instead of death. Medium agreement (SD = 1.6) – some differences in the approach taken to harm and culpability. Some people did consider it to be significantly less serious than intentional deaths due to the lack of intention; however, overall the culpability was seen to be higher than other unintentional deaths such as arson causing death and dangerous driving causing death. This was due to the high level of risk involved in the behaviour and the likelihood that it would cause serious harm. Participants talked about a ‘higher level of recklessness or negligence’.
Judicial commentary	R v Taylor [1999] VSCA 206; (1999) 30 MVR 88, 92, Brooking JA: ‘I cannot regard the sentence of six years’ imprisonment for culpable driving as manifestly excessive. The available maximum was 20 years and, as has been said in the past, the progressive increase in the maximum shows Parliament’s determination to do what it can to cope with death on the roads’.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	84
% proven charges that received imprisonment	83.3%
% of principal proven charges that received a total effective sentence of imprisonment	81.8%
Median imprisonment term for proven charges that received imprisonment	5.5
Median total effective imprisonment term for principal proven charges	6.0
Median non-parole period for principal proven charges	4.0
Range of imprisonment terms for proven charges	Minimum: 2.0 years Longest: 10.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 2.25 years Longest: 13.0 years
Range of non-parole periods for principal proven charges	Minimum: 1.25 years Longest: 10.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	5.6
Derived non-parole period (including appeals and prior to guilty plea)	5.8

Definition	Killing a person by driving a motor vehicle at a speed or in a manner that was dangerous to the public, having regard to all the circumstances of the case.
Maximum penalty	Level 5 imprisonment (10 years).
Offence history/particulars	The offence of dangerous driving causing death was first introduced in Victoria in 1958. At that time it had a statutory maximum penalty of two years’ imprisonment. The section was repealed in 1967. A new section 319 was introduced in 2004, which increased the maximum penalty to Level 6 imprisonment (five years). In 2008 the maximum penalty was increased by the Crimes Amendment (Child Homicide) Act 2008 (Vic) to Level 5 imprisonment (10 years). This remains the current statutory maximum penalty.
Offence seriousness – community panels	Mean ranking of 6.3 (level 6 in scale of seriousness) – same level as conduct endangering life and arson. Low agreement (SD = 2.2) – some differences in the approach taken to harm and culpability. Most people considered it to be significantly less serious than intentional deaths due to the lack of intention; however, there was disagreement as to how the culpability differed in this offence from other unintentional deaths such as arson causing death and dangerous driving causing death. Some participants saw this offence as substantially less serious due to the temporary lapse in concentration and ‘split-second’ nature of the behaviour compared with, for example, a prolonged period of drinking. Others talked about it being less serious as the behaviour, while dangerous, involved a lower level of risk than other behaviour that resulted in unintentional deaths. Participants talked about a ‘lower level of recklessness’ compared with culpable driving causing death. However, others, did not make such distinctions based on culpability and perceived this offence to be as serious as other fatal offences as it resulted in the death of the victim.
Judicial commentary	Director of Public Prosecutions v Neethling [2009] VSCA 116; (2009) 22 VR 466; cited principles from the New South Wales case of R v Musumeci (Unreported, NSW Court of Criminal Appeal, Hunt CJ, McInerney and Hulme JJ, 30 October 1997) for sentencing dangerous driving causing death: 1. The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness. 2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life. 3. Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases. 4. The courts must tread warily in showing leniency for good character in such cases. 5. So far as youthful offenders of good character who are guilty of dangerous driving, therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.... 7. it cannot be said that a full time custodial sentence is required in every case ... As that offence is committed even though the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence (although that does not mean that a non-custodial sentence is ordinarily appropriate in such a case), but the case in which a sentence other than one involving full-time custody is appropriate must be rarer for this new offence.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	71
% proven charges that received imprisonment	39.4%
% of principal proven charges that received a total effective sentence of imprisonment	30.5%
Median imprisonment term for proven charges that received imprisonment	2.8
Median total effective imprisonment term for principal proven charges	3.3
Median non-parole period for principal proven charges	1.5
Range of imprisonment terms for proven charges	Minimum: 0.8 years Longest: 3.5 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 1.5 years Longest: 10.0 years
Range of non-parole periods for principal proven charges	Minimum: 0.8 years Longest: 7.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	3.9
Derived non-parole period (including appeals and prior to guilty plea)	2.2

Definition	Killing a person by an act that is intended to kill that person (or with knowledge that someone would probably die or suffer really serious injury) where there was the presence of a suicide pact.
Maximum penalty	Level 5 imprisonment (10 years).
Offence history/particulars	The offence was introduced in 1967, initially having the same penalty as manslaughter. In 1991 the maximum penalty was set at the former Level 6 imprisonment (7.5 years). In 1997 the maximum penalty was increased to the current Level 5 imprisonment (10 years).
Offence seriousness – community panels	Not measured.
Judicial commentary	Director of Public Prosecutions v Rolfe [2008] VSC 528; (2008) 191 A Crim R 213: A husband, 81, gassed himself and his wife, 85, pursuant to a joint agreement to commit suicide. The wife died, but the husband was revived by paramedics. No comment was made as to the level of seriousness, only that the nature of the offending warranted mercy. A sentence of two years wholly suspended was imposed. The sentence had been ‘reduced by a third’ for the husband’s plea of guilty as declared under 6AAA. R v Marden [2000] VSC 558 (21 November 2000): A husband 76, killed his wife pursuant to a joint agreement to commit suicide. Despite taking medications ordinarily sufficient to stop the heart, the husband’s pacemaker kept him alive. The husband received a sentence of two years wholly suspended.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	0
% proven charges that received imprisonment	Insufficient data available
% of principal proven charges that received a total effective sentence of imprisonment	Insufficient data available
Median imprisonment term for proven charges that received imprisonment	Insufficient data available
Median total effective imprisonment term for principal proven charges	Insufficient data available
Median non-parole period for principal proven charges	Insufficient data available
Range of imprisonment terms for proven charges	Insufficient data available
Range of total effective imprisonment terms for principal proven charges	Insufficient data available
Range of non-parole periods for principal proven charges	Insufficient data available
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	Insufficient data available
Derived non-parole period (including appeals and prior to guilty plea)	Insufficient data available

Definition	Making a threat to a person to kill him or her or someone else intending that, or being reckless to whether, the person would fear that the threat would be carried out.
Maximum penalty	Level 5 imprisonment (10 years).
Offence history/particulars	In 1992 the maximum penalty for the offence of making a threat to kill was set at the former Level 6 imprisonment (five years). In 1997 the maximum penalty was raised to the current Level 5 imprisonment (10 years), which remains the current maximum penalty for this offence.
Offence seriousness – community panels	Mean ranking of 6.6 (level 7 in scale of seriousness) – same as arson causing death but lower than murder, manslaughter, rape, assault with intent to rape, kidnapping, aggravated burglary and child sex offences with eight-year old victim. Medium agreement (SD = 1.8) – many considered intention to make a person fear for his or her life to be serious but distinguished from actual intention to kill. Many influenced by psychological harm which was considered to be as serious as some forms of physical harm or risk of physical harm (for example, was on same level as recklessly causing serious injury, armed robbery and attempted armed robbery and was higher than dangerous driving causing death, conduct endangering life, intentionally causing injury, assault).
Judicial commentary	R v Rodden [2005] VSCA 24 (8 February 2005): The case involved two charges of a very serious example of making a threat to kill, involving confronting a group of teenagers at a railway station, brandishing a loaded shotgun. The court imposed as sentence of two years on each charge of making a threat to kill. The offender was also sentenced for charges of affray, carrying a firearm while committing an offence, using a firearm to resist lawful arrest, two charges of assaulting a police officer in the due execution of his or her duty, being a prohibited person in possession of a firearm, and doing an act intended to pervert the course of justice. The final sentence imposed was a total effective sentence of five years and six months, and a non-parole period of four years.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	381
% proven charges that received imprisonment	63.8%
% of principal proven charges that received a total effective sentence of imprisonment	61.1%
Median imprisonment term for proven charges that received imprisonment	1.0
Median total effective imprisonment term for principal proven charges	2.5
Median non-parole period for principal proven charges	1.6
Range of imprisonment terms for proven charges	Minimum: 0.1 years Longest: 5.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 0.4 years Longest: 6.0 years
Range of non-parole periods for principal proven charges	Minimum: 0.3 years Longest: 4.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	2.1
Derived non-parole period (including appeals and prior to guilty plea)	2.7

Definition	Sexually penetrating a person without that person’s consent or compelling a person, by force or otherwise, to sexually penetrate the offender or another person.
Maximum penalty	Level 2 imprisonment (25 years).
Offence history/particulars	In 1992 the offence of aggravated rape was abolished and the maximum penalty for rape was set at 25 years. This remains the current maximum penalty.
Offence seriousness – community panels	Mean ranking of 9.3 (level 9 on scale of seriousness) – same level as intentionally causing serious injury (permanent vegetative state) and reckless murder and one level below sexual penetration with a child under 12 (most serious sex offence). Ranked second in paired comparisons scale of seriousness. High agreement (SD = 0.8) – combination of high culpability/high harm influential. Intention to rape was a key seriousness factor that underpinned high ranking at level 8 or higher of sex offences and all offences against the person committed with that intention (for example, aggravated burglary, assault with intent to rape, kidnapping, false imprisonment, rape and attempted rape).
Judicial commentary	Leeder v The Queen [2010] VSCA 98 (23 April 2010), Maxwell P: ‘The median sentence for rape, as identified in the Sentencing Snapshot published in June 2009 by the Sentencing Advisory Council, is five years. That means that there are as many sentences for rape above five years as there are under five. But I can see no reasonable justification for imposing on this offender a sentence of almost five years for an offence the maximum penalty for which is only 40 percent of the maximum for rape ... A separate and very serious question arises about the adequacy of current sentencing practices for rape’.
DPP challenge?	Yes: listed as one of the offences for which current sentencing practices are/were to be challenged by the Director of Public Prosecutions.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	487
% proven charges that received imprisonment	94.7%
% of principal proven charges that received a total effective sentence of imprisonment	90.2%
Median imprisonment term for proven charges that received imprisonment	5.0
Median total effective imprisonment term for principal proven charges	6.2
Median non-parole period for principal proven charges	4.0
Range of imprisonment terms for proven charges	Minimum: 1.0 years Longest: 16.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 2.0 years Longest: 28.0 years
Range of non-parole periods for principal proven charges	Minimum: 0.5 years Longest: 22.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	11.2
Derived non-parole period (including appeals and prior to guilty plea)	9.4

Definition	Taking part in an act of sexual penetration with a child aged under 12 years.
Maximum penalty	Level 2 imprisonment (25 years).
Offence history/particulars	In 1991 the maximum penalty was set at 20 years and applied to an offence against a child aged under 10. In 1992 the maximum penalty was set at the former Level 2 imprisonment (20 years). In 1997 the maximum penalty was increased to the current Level 2 imprisonment (25 years). Second Reading Speech: ‘The offences of incest, sexual penetration of a child under 10 years and maintaining a sexual relationship with a child under 16 years will all now have effective maximum terms of 25 years imprisonment, placing them on the same footing as rape offences. The government believes that sexual crimes against children are extremely serious and when they occur have the potential to ruin young lives. This view has been repeatedly expressed by members of the public, victims’ groups and other specialist bodies, and is now being acted upon’. In 2010 the scope of this offence was increased to include victims aged 10 and 11.
Offence seriousness – community panels	Mean ranking of 9.5 (level 10 on scale of seriousness) – most serious sex offence. Same level as intentional murder. High agreement (SD = 0.8) – combination of high culpability/high harm influential. High agreement on child sex offences as particularly serious – combination of high culpability (breach of trust, lack of consent) and high harm (long lasting psychological harm). Young age of child very influential as a seriousness factor – eight-year old victim underpinned high ranking of all child sex offences at level 8 or higher.
Judicial commentary	Director of Public Prosecutions v CPD [2009] VSCA 114; (2009) 22 VR 533, Maxwell P, Redlich JA and Robson AJA: ‘current sentencing practices for sexual penetration of a child under 10 appear difficult to reconcile with the high maximum set by Parliament’.
DPP challenge?	Yes: listed as one of the offences for which current sentencing practices are/were to be challenged by the Director of Public Prosecutions.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	195
% proven charges that received imprisonment	86.7%
% of principal proven charges that received a total effective sentence of imprisonment	81.3%
Median imprisonment term for proven charges that received imprisonment	3.5
Median total effective imprisonment term for principal proven charges	5.5
Median non-parole period for principal proven charges	3.0
Range of imprisonment terms for proven charges	Minimum: 0.6 years Longest: 6.5 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 1.5 years Longest: 18.0 years
Range of non-parole periods for principal proven charges	Minimum: 1.0 years Longest: 14.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	7.5
Derived non-parole period (including appeals and prior to guilty plea)	4.0

Note: These data are for the offence of sexual penetration with a child under 10.

Definition	Taking part in an act of sexual penetration with a person whom the offender knows is his or her child, lineal descendent or step-child or the child, lineal descendant or step-child of his or her de facto spouse.
Maximum penalty	Level 2 imprisonment (25 years).
Offence history/particulars	In 1991 the maximum penalty for the offence was 20 years. This was then enacted as the former Level 2 imprisonment (20 years) in 1992 and increased to the current Level 2 imprisonment (25 years) in 1997. This remains the current maximum penalty. Second Reading Speech: ‘The offences of incest, sexual penetration of a child under 10 years and maintaining a sexual relationship with a child under 16 years will all now have effective maximum terms of 25 years imprisonment, placing them on the same footing as rape offences. The government believes that sexual crimes against children are extremely serious and when they occur have the potential to ruin young lives. This view has been repeatedly expressed by members of the public, victims’ groups and other specialist bodies, and is now being acted upon’.
Offence seriousness – community panels	Not measured but findings on child sex offences are relevant. High agreement on child sex offences as particularly serious – combination of high culpability (breach of trust, lack of consent) and high harm (long lasting psychological harm). Young age of child very influential as a seriousness factor – eight-year old victim underpinned high ranking of all child sex offences at level 8 or higher.
Judicial commentary	Director of Public Prosecutions v OJA; Director of Public Prosecutions v WBA; Director of Public Prosecutions v EBD [2007] VSCA 129 (22 June 2007): ‘With the exception of Taylor, the examples to which the prosecutor referred, and a number of others that might also be considered to be relevant, suggest that an individual sentence of six years’ imprisonment is towards the upper end of the range for charges of incest, even after the increase in the maximum penalty to 25 years’ imprisonment, and certainly fairly within the range mapped out in DJS. Similarly, although the judge in this case only cumulated the individual sentences to a relatively limited extent, the total effective sentence of 15 years’ imprisonment is squarely within the range of all of the examples except Taylor’. Sentence imposed of six years for each charge of incest (nine charges) with some cumulation.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	649
% proven charges that received imprisonment	94.3%
% of principal proven charges that received a total effective sentence of imprisonment	94.4%
Median imprisonment term for proven charges that received imprisonment	4.0
Median total effective imprisonment term for principal proven charges	7.0
Median non-parole period for principal proven charges	4.0
Range of imprisonment terms for proven charges	Minimum: 0.3 years Longest: 12.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 0.3 years Longest: 22.0 years
Range of non-parole periods for principal proven charges	Minimum: 1.5 years Longest: 18.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	9.7
Derived non-parole period (including appeals and prior to guilty plea)	6.7

Definition	Persistently sexually abusing a child under the age of 16 to whom he or she is not married through at least three acts that would constitute a sexual offence within a particular period.
Maximum penalty	Level 2 imprisonment (25 years).
Offence history/particulars	The offence was first introduced in Victoria in 1991; however, the offence was called ‘maintain a sexual relationship with a child under the age of 16’. A person guilty of the offence was ‘liable to a penalty not exceeding the maximum penalty fixed or prescribed by law for the offence which the relevant act would constitute’. In 1997 the maximum penalty was changed to the current Level 2 imprisonment (25 years). This remains the current maximum penalty. Second Reading Speech: ‘The offences of incest, sexual penetration of a child under 10 years and maintaining a sexual relationship with a child under 16 years will all now have effective maximum terms of 25 years imprisonment, placing them on the same footing as rape offences. The government believes that sexual crimes against children are extremely serious and when they occur have the potential to ruin young lives. This view has been repeatedly expressed by members of the public, victims’ groups and other specialist bodies, and is now being acted upon’. In 2006 the offence was renamed ‘persistent sexual abuse of a child under the age of 16’.
Offence seriousness – community panels	Not measured but findings on child sex offences are relevant. High agreement on child sex offences as particularly serious – combination of high culpability (breach of trust, lack of consent) and high harm (long lasting psychological harm). Young age of child very influential as a seriousness factor – eight-year old victim underpinned high ranking of all child sex offences at level 8 or higher.
Judicial commentary	Director of Public Prosecutions v DDJ [2009] VSCA 115; (2009) 196 A Crim R 33, Maxwell P, Vincent and Neave JJA: ‘As noted earlier, senior counsel for the Director did not invite the Court on this appeal to express a view about the adequacy of current sentencing practices for this offence. We do not doubt that it would be competent for this Court to do so. Like the sentencing court, this Court must have regard both to the applicable maximum penalty and to current sentencing practices for the offence ... No submissions having been advanced on the question, it would not be appropriate for us to express a concluded view. Enough has been said already, however, to demonstrate that a real question arises as to the adequacy of current sentencing for this offence. That is a matter of the first importance to the administration of criminal justice in this State. The issue should be addressed in an appropriate case where the Director’s view is clearly articulated in advance, and substantiated, and the point is fully argued’.
DPP challenge?	Yes: listed as one of the offences for which current sentencing practices are/were to be challenged by the Director of Public Prosecutions.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	63
% proven charges that received imprisonment	95.2%
% of principal proven charges that received a total effective sentence of imprisonment	93.5%
Median imprisonment term for proven charges that received imprisonment	6.0
Median total effective imprisonment term for principal proven charges	7.0
Median non-parole period for principal proven charges	4.5
Range of imprisonment terms for proven charges	Minimum: 0.1 years Longest: 12.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 1.5 years Longest: 15.0 years
Range of non-parole periods for principal proven charges	Minimum: 0.5 years Longest: 10.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	5.3
Derived non-parole period (including appeals and prior to guilty plea)	6.4

Sexual penetration with a child 12–16 (where the child is under the care, supervision or authority of offender)

Definition	Taking part in an act of sexual penetration with a child aged between 12 and 16 years and under the care, supervision or authority of the offender.
Maximum penalty	Level 4 imprisonment (15 years).
Offence history/particulars	In 1991 the maximum penalty was set at 15 years and applied to an offence against a child aged between 10 and 16. The offence was originally contained in section 46 of the Crimes Act 1958 (Vic). In 2000 a new section 45 was substituted for the previous sections 45 and 46. In 2010 the scope of this offence was reduced to exclude victims aged 10 and 11. Offences against children aged 10 and 11 fall within the offence of sexual penetration with a child under 12, which has a higher maximum penalty of Level 2 imprisonment (25 years).
Offence seriousness – community panels	Mean ranking of 7.1 (level 7 on scale of seriousness) – three levels lower than sexual penetration with a child under 12. Low agreement (SD = 2.0) – different views about culpability and harms of the offence. Young age of child very influential as a seriousness factor – eight-year old victim underpinned high ranking of all child sex offences at level 8 or higher. This was distinguished due to different age of victim but the CSA relationship was seen as a very serious factor by many (abuse of position, breach of trust, impact on consent).
Judicial commentary	R v DCP [2006] VSCA 2 (19 January 2006): ‘The Crown also conceded, said counsel, that the offences fall within the middle range of the offences of this nature’. The court imposed four years for the charge of sexual penetration with a child under 16 CSA (being a representative charge); also sexual penetration with a child under 17 CSA; multiple representative charges of indecent acts, cumulated. The sentence imposed was a total effective sentence of seven years with a non-parole period of five years.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	101
% proven charges that received imprisonment	85.1%
% of principal proven charges that received a total effective sentence of imprisonment	73.0%
Median imprisonment term for proven charges that received imprisonment	3.0
Median total effective imprisonment term for principal proven charges	5.0
Median non-parole period for principal proven charges	3.3
Range of imprisonment terms for proven charges	Minimum: 1.0 years Longest: 8.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 3.0 years Longest: 12.0 years
Range of non-parole periods for principal proven charges	Minimum: 2.0 years Longest: 10.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	6.0
Derived non-parole period (including appeals and prior to guilty plea)	4.7

Note: These data are for the offence of sexual penetration with a child aged 10–16 (CSA).

Definition	Taking part in an act of sexual penetration with a child aged between 12 and 16 years.
Maximum penalty	Level 5 imprisonment (10 years).
Offence history/particulars	In 1991 the maximum penalty was set at 10 years and applied to an offence against a child aged under 10. This remains the maximum penalty. The offence was originally contained in section 46 of the Crimes Act 1958 (Vic). In 2000 a new section 45 was substituted for the previous sections 45 and 46. In 2010 the scope of this offence was reduced to exclude victims aged 10 and 11. Offences against children aged 10 and 11 fall within the offence of sexual penetration with a child under 12, which has a higher maximum penalty of Level 2 imprisonment (25 years).
Offence seriousness – community panels	Mean ranking of 3.4 (level 3 on scale of seriousness) – four levels lower than sexual penetration 12–16 (CSA). Low agreement (SD = 2.1) – different views about circumstances and whether boyfriend/girlfriend close in age relationship detracted from seriousness. Young age of child very influential as a seriousness factor – eight-year old victim underpinned high ranking of all child sex offences at level 8 or higher. This was distinguished due to different age of victim.
Judicial commentary	Clarkson v The Queen; EJA v The Queen [2011] VSCA 157 (3 June 2011) Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA: ‘Typically, the giving of the consent will be a reflection of the relationship between the child and the offender. In very many cases, the consent will be seen to reflect a significant age difference and/or power imbalance between offender and victim. In such cases – for example, the consent given by a pupil to her teacher, or by a daughter to her mother’s partner – the circumstances will usually reveal the offender’s abuse of a position of trust or authority, rendering the offence more grave and his culpability greater. ‘At the other end of the scale, there are exceptional cases – for example, in a relationship between a 15 year old girl and an 18 year old boy – where the consent is, relatively speaking, freely given and genuine and a reflection of genuine affection between the two. In such circumstances, as the cases illustrate, the sentencing court is likely to view the offence as less grave and the offender’s culpability as reduced. In such a case, too, the offender may be able to establish, by appropriate evidence, that the victim is not likely to suffer the harm which the law presumes to flow from premature sexual activity’.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	887
% proven charges that received imprisonment	52.0%
% of principal proven charges that received a total effective sentence of imprisonment	43.6%
Median imprisonment term for proven charges that received imprisonment	2.2
Median total effective imprisonment term for principal proven charges	3.6
Median non-parole period for principal proven charges	2.0
Range of imprisonment terms for proven charges	Minimum: 0.1 years Longest: 7.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 0.7 years Longest: 14.0 years
Range of non-parole periods for principal proven charges	Minimum: 0.4 years Longest: 8.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	4.2
Derived non-parole period (including appeals and prior to guilty plea)	3.2

Note: These data are for the offence of sexual penetration with a child aged 10–16.

Definition	Taking part in an act of sexual penetration with a person whom the offender knows is his or her sister, half-sister, brother or half-brother (unless both aged over 18 years and both consented).
Maximum penalty	Level 6 imprisonment (five years).
Offence history/particulars	In 1991 the maximum penalty for the offence was set at seven years. In 1992 the maximum penalty was increased to the former Level 6 imprisonment (7.5 years). The maximum penalty was then decreased to the current Level 6 imprisonment (five years) in 1997. This remains the current maximum penalty.
Offence seriousness – community panels	Not measured but findings on child sex offences relevant. High agreement on child sex offences as particularly serious – combination of high culpability (breach of trust, lack of consent) and high harm (long lasting psychological harm). Young age of child very influential as a seriousness factor – 8 year old victim underpinned high ranking of all child sex offences at level 8 or higher. Close age relationship may reduce seriousness (see, for example, sexual penetration with a child 12–16 where boyfriend/girlfriend close in age was considered to be less serious).
Judicial commentary	R v MAS [1998] VSC 286 (29 April 1998): The offender was convicted of one charge of incest against section 44(4) (with adult sister, among other incest offences against his children). The offender received one year for the sibling incest charge. The total effective sentence was four years with a non-parole period of two years.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	37
% proven charges that received imprisonment	Insufficient data available
% of principal proven charges that received a total effective sentence of imprisonment	Insufficient data available
Median imprisonment term for proven charges that received imprisonment	Insufficient data available
Median total effective imprisonment term for principal proven charges	Insufficient data available
Median non-parole period for principal proven charges	Insufficient data available
Range of imprisonment terms for proven charges	Insufficient data available
Range of total effective imprisonment terms for principal proven charges	Insufficient data available
Range of non-parole periods for principal proven charges	Insufficient data available
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	Insufficient data available
Derived non-parole period (including appeals and prior to guilty plea)	Insufficient data available

Definition	Taking or leading or enticing a person away or detaining a person with the intention to demand payment by way of a ransom for the person’s return or release or with the intention of gaining an advantage.
Maximum penalty	Level 2 imprisonment (25 years).
Offence history/particulars	The Crimes (Kidnapping) Act 1960 (Vic) inserted section 63A kidnapping into the Crimes Act 1958 (Vic) essentially kidnapping for ransom or advantage. In 1992 the maximum penalty for the offence was set at the former Level 2 imprisonment (20 years). This was increased in 1997 to the current Level 2 imprisonment (25 years) and this remains the current maximum penalty.
Offence seriousness – community panels	Not measured.
Judicial commentary	Director of Public Prosecutions v Ramos; Director of Public Prosecutions v Delos Santos; Director of Public Prosecutions v Herasan [2003] VSCA 215 (17 December 2003): The case involved the kidnapping of a five year old girl from her home by three masked men. The motive for the crime was revenge against the girl’s father for dismissing one of the co-offenders from work. A demand of $110,000 was made for the girl’s return. ‘The question of general deterrence assumes a particular significance in this case. This is so because kidnappings of the kind presently before the Court are rare. I have already observed that it as well that this is so. In my opinion, the clear duty of the Court is to make it plain that crimes of this nature are abhorrent. They as much as almost any crime, and more than most, offend against values which civilised communities regard as sacrosanct’. The three co-offenders received 9.5 years, 8.5 years and four years for the statutory kidnapping charges.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	Insufficient data available
% proven charges that received imprisonment	Insufficient data available
% of principal proven charges that received a total effective sentence of imprisonment	Insufficient data available
Median imprisonment term for proven charges that received imprisonment	Insufficient data available
Median total effective imprisonment term for principal proven charges	Insufficient data available
Median non-parole period for principal proven charges	Insufficient data available
Range of imprisonment terms for proven charges	Insufficient data available
Range of total effective imprisonment terms for principal proven charges	Insufficient data available
Range of non-parole periods for principal proven charges	Insufficient data available
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	Insufficient data available
Derived non-parole period (including appeals and prior to guilty plea)	Insufficient data available

Definition	Causing serious injury to a person by a physical attack without lawful excuse that is intended to cause a serious injury.
Maximum penalty	Level 3 imprisonment (20 years).
Offence history/particulars	In 1992 the maximum penalty for causing serious injury intentionally was reduced from 15 years’ imprisonment to the former Level 4 imprisonment (12.5 years). In 1997 the maximum penalty was increased to the current Level 3 imprisonment (20 years). The Attorney-General, Jan Wade, in her Second Reading Speech, stated that this change reflected the ‘high value that the community places upon life and personal safety’. This remains the current maximum penalty for this offence.
Offence seriousness – community panels	Mean ranking of 9.3 (level 9 in scale of seriousness) – highest injury offence, at same level as reckless murder and rape. Ranked fourth in paired comparisons scale of seriousness (did not include description of injury). High agreement (SD = 1.0) – combination of high culpability/high harm influential. Permanent vegetative state injury particularly influential. Many equated it as equal to or worse than death.
Judicial commentary	R v G [2010] VCC (Unreported, County Court of Victoria, Pullen J, 5 May 2009) [113]: ‘Intentionally causing serious injury is the most serious of the non-homicidal offences in which there is a concurrence of serious injury with the intention to cause it’. Kane v The Queen [2010] VSCA 213 (23 August 2010), Harper JA, agreeing with Nettle JA: ‘I wish to associate myself with the proposition that while for the reasons which his Honour has given, this is not the case in which to revisit the general sentencing range for the offence of intentionally causing serious injury without lawful excuse. Nevertheless there is reason to question whether the current range is appropriate. The behaviour involved on Charge 1 in this case was a very high degree of criminality. It is difficult to equate with that behaviour a sentence which is well under half the maximum fixed by Parliament. It is Parliament’s constitutional prerogative to fix such maxima and the Courts’ duty to give effect to the intention evidenced by Parliament in so legislating. Sentences for serious examples of the offence which consistently fall below half the maximum are arguably not consistent with the duty to the Courts to adhere to the intention of the legislature as expressed in the relevant legislative provisions’.
DPP challenge?	Yes: listed as one of the offences for which current sentencing practices are/were to be challenged by the Director of Public Prosecutions.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	606
% proven charges that received imprisonment	67.2%
% of principal proven charges that received a total effective sentence of imprisonment	65.8%
Median imprisonment term for proven charges that received imprisonment	3.5
Median total effective imprisonment term for principal proven charges	4.5
Median non-parole period for principal proven charges	2.5
Range of imprisonment terms for proven charges	Minimum: 0.5 years Longest: 15.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 0.5 years Longest: 21.0 years
Range of non-parole periods for principal proven charges	Minimum: 0.3 years Longest: 18.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	9.1
Derived non-parole period (including appeals and prior to guilty plea)	6.2

Definition	Causing serious injury to a person by a physical attack without lawful excuse that is reckless, that is the offender is indifferent to the foreseen probability that a serious injury will occur.
Maximum penalty	Level 4 imprisonment (15 years).
Offence history/particulars	In 1997 the maximum penalty was increased from the former Level 5 imprisonment (10 years) to the current Level 4 imprisonment (15 years) and this remains the current maximum penalty for this offence.
Offence seriousness – community panels	Mean ranking of 7.3 (level 7 in scale of seriousness) – two levels below intentionally causing serious injury and one below negligently causing serious injury (drinking and reckless conduct elevated seriousness). Low agreement (SD = 2.1) – due to different approaches to harm and culpability. Some saw it as very serious due to emphasis on high harm (permanent vegetative state) but many saw it as less serious due to lower level of culpability. For example, culpability in negligently causing serious injury was seen as an extra ‘level’ of recklessness/negligence. Permanent vegetative state injury particularly influential. Many equated it as equal to or worse than death.
Judicial commentary	Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658 Maxwell P and Redlich JA: ‘Glassing cases should, in our view, be treated as being in the same category as other RSCI offences which involve the use of a dangerous weapon likely to produce serious injury. There is no warrant for placing these cases in a lower category of seriousness where an immediate custodial sentence is not ordinarily required. It follows, in our view, that sentencing judges should not regard themselves as constrained to follow the course disclosed by the glassing cases to which we have referred. Those advising clients in the future whether or not to plead guilty to recklessly causing serious injury in a glassing case should ensure that no assumption is made about the availability of a suspended sentence. For all the reasons we have given, a person who comes to be sentenced for recklessly causing serious injury, on a plea of guilty, for a ‘glassing’ offence – even with all the mitigating features to which we have referred – should proceed on the assumption that he or she will be required to spend a significant period of time in actual custody’.
DPP challenge?	Yes: listed as one of the offences for which current sentencing practices are/were to be challenged by the Director of Public Prosecutions.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	624
% proven charges that received imprisonment	49.0%
% of principal proven charges that received a total effective sentence of imprisonment	48.2%
Median imprisonment term for proven charges that received imprisonment	2.0
Median total effective imprisonment term for principal proven charges	2.5
Median non-parole period for principal proven charges	1.3
Range of imprisonment terms for proven charges	Minimum: 0.1 years Longest: 10.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 0.2 years Longest: 10.0 years
Range of non-parole periods for principal proven charges	Minimum: 0.3 years Longest: 8.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	4.1
Derived non-parole period (including appeals and prior to guilty plea)	5.4

Definition	Taking or leading or enticing a person away or detaining a person.
Maximum penalty	Level 2 imprisonment (25 years).
Offence history/particulars	The maximum penalty for the common law offence of kidnapping was ‘at large’ until 1997 when it was set at the current Level 2 imprisonment (25 years), which remains the current maximum penalty for this offence. The maximum penalty for the common law offence of kidnapping is contained in section 320 of the Crimes Act 1958 (Vic).
Offence seriousness – community panels	Mean ranking of 8.2 (level 8 in scale of seriousness) – second highest offence in causing or risking injury category. Same level as manslaughter, attempted rape and aggravated burglary. False imprisonment at same level. Ranked third in paired comparisons scale of seriousness. Medium agreement (SD = 1.3) – key factors influencing seriousness were deprivation of liberty/personal invasion and intention to rape – high psychological harms. An intention to rape was included in the kidnapping vignette, and this became a key seriousness factor that underpinned high ranking at level 8 or higher of sex offences and all offences against the person committed with that intention (for example, aggravated burglary, assault with intent to rape, kidnapping, false imprisonment, rape and attempted rape).
Judicial commentary	Tucker and Lewis (1989) 43 A Crim R 377: In this case the court referred to the necessity to impose ‘stern punishment’ for offences of kidnapping to mark the extreme seriousness of the offence.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	56
% proven charges that received imprisonment	78.6%
% of principal proven charges that received a total effective sentence of imprisonment	73.9%
Median imprisonment term for proven charges that received imprisonment	2.5
Median total effective imprisonment term for principal proven charges	4.0
Median non-parole period for principal proven charges	2.0
Range of imprisonment terms for proven charges	Minimum: 0.8 years Longest: 8.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 1.5 years Longest: 11.0 years
Range of non-parole periods for principal proven charges	Minimum: 0.8 years Longest: 7.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	3.9
Derived non-parole period (including appeals and prior to guilty plea)	3.5

Definition	Taking away a person by force or detaining a person against his or her will intending that the person marry or take part in an act of sexual penetration with the offender or another person.
Maximum penalty	Level 5 imprisonment (10 years).
Offence history/particulars	Originally was the crime of forcible abduction of a woman in the former section 62 of the Crimes Act 1958 (Vic). The offence then became ‘abduction or detention’, under section 55 inserted by the Crimes (Sexual Offences) Act 1991 (Vic).
Offence seriousness – community panels	Not measured but similar to false imprisonment where the mean rankings placed it at level 8 in the scale of seriousness – at same level as kidnapping (even though vast difference in maximum penalties). Medium agreement on the seriousness of false imprisonment (SD = 1.6) – key factors influencing seriousness were deprivation of liberty/personal invasion and intention to rape – high psychological harms. Intention to rape was a key seriousness factor that underpinned high ranking at level 8 or higher of sex offences and all offences against the person committed with that intention (for example, aggravated burglary, assault with intent to rape, kidnapping, false imprisonment, rape and attempted rape).
Judicial commentary	Director of Public Prosecutions v Dowie [2009] VSCA 154 (26 June 2009): Crown appeal against a one-year sentence for a charge of abduction with intent to rape (cumulated two months on rape charges). The Crown submitted: ‘The sentence imposed for the abduction charge represented just 10% of the available maximum, as did the sentence for the recklessly causing injury charge’. The Court discussed the fact that sometimes this offence is not charged in addition to a rape charge, even when abduction occurs: ‘Senior counsel argued that some form of abduction and/or false imprisonment was a typical feature of cases of this kind, and that such conduct was often not the subject of a separate charge. In the present case, there was a separate charge of abduction with intent to rape, but no charge of false imprisonment. Counsel acknowledged that, where such conduct is not separately charged, it aggravates the seriousness of the sexual offence itself’.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	7
% proven charges that received imprisonment	Insufficient data available
% of principal proven charges that received a total effective sentence of imprisonment	Insufficient data available
Median imprisonment term for proven charges that received imprisonment	Insufficient data available
Median total effective imprisonment term for principal proven charges	Insufficient data available
Median non-parole period for principal proven charges	Insufficient data available
Range of imprisonment terms for proven charges	Insufficient data available
Range of total effective imprisonment terms for principal proven charges	Insufficient data available
Range of non-parole periods for principal proven charges	Insufficient data available
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	Insufficient data available
Derived non-parole period (including appeals and prior to guilty plea)	Insufficient data available

Definition	Assaulting or threatening to assault another person with intent to commit rape.
Maximum penalty	Level 5 imprisonment (10 years).
Offence history/particulars	The maximum penalty for the offence was set at Level 5 imprisonment (10 years) in 1997.
Offence seriousness – community panels	Mean ranking of 7.8 (level 8 in scale of seriousness) – same level as attempted rape and one level below rape (level 9). Medium agreement (SD = 1.5). Intention to rape was a key seriousness factor that underpinned high ranking at level 8 or higher of sex offences and all offences against the person committed with that intention (for example, aggravated burglary, assault with intent to rape, kidnapping, false imprisonment, rape and attempted rape).
Judicial commentary	R v Burke [2009] VSCA 60 (31 March 2009): First-time offender, low IQ, large number of mitigating circumstances. Chased 15 year old girl, partly removed her clothing, then desisted. Offender received three years, suspended for two years and three months. The assault was considered particularly serious because of the sexual nature.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	18
% proven charges that received imprisonment	66.7%
% of principal proven charges that received a total effective sentence of imprisonment	61.5%
Median imprisonment term for proven charges that received imprisonment	3.0
Median total effective imprisonment term for principal proven charges	3.5
Median non-parole period for principal proven charges	1.8
Range of imprisonment terms for proven charges	Minimum: 0.7 years Longest: 5.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 3.0 years Longest: 10.0 years
Range of non-parole periods for principal proven charges	Minimum: 1.5 years Longest: 7.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	Insufficient data available
Derived non-parole period (including appeals and prior to guilty plea)	Insufficient data available

Definition	Taking away a child under the age of 16, or causing the child to be taken away, against the will of the person who has lawful charge of the child, intending that the child take part in an act of sexual penetration outside marriage with the offender or another person.
Maximum penalty	Level 6 imprisonment (five years).
Offence history/particulars	The penalty was reduced in 1997 to the current Level 6 imprisonment (five years) from the former Level 7 imprisonment (7.5 years). Note that this offence has a lower maximum penalty than the same offence against an adult.
Offence seriousness – community panels	Not measured but similar to false imprisonment where the mean rankings placed it at level 8 in the scale of seriousness – at same level as kidnapping (even though vast difference in maximum penalties). Medium agreement on the seriousness of false imprisonment (SD = 1.6) – key factors influencing seriousness were deprivation of liberty/personal invasion and intention to rape – high psychological harms. Intention to rape was a key seriousness factor that underpinned high ranking at level 8 or higher of sex offences and all offences against the person committed with that intention (for example, aggravated burglary, assault with intent to rape, kidnapping, false imprisonment, rape and attempted rape). Young age of child very influential as a seriousness factor – eight-year old victim underpinned high ranking of all child sex offences at level 8 or higher.
Judicial commentary	R v Fetherston [2006] VSCA 278 (13 December 2006): Offender convicted of one charge of abduction of a child under 16 with the intention of taking part in an act of sexual penetration with the child (three years); three charges of sexual penetration with a child under 16 (12 months on each; eight months of each cumulated). The total effective sentence imposed was five years with a non-parole period of three years.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence (Table 3)	1
% proven charges that received imprisonment	Insufficient data available
% of principal proven charges that received a total effective sentence of imprisonment	Insufficient data available
Median imprisonment term for proven charges that received imprisonment	Insufficient data available
Median total effective imprisonment term for principal proven charges	Insufficient data available
Median non-parole period for principal proven charges	Insufficient data available
Range of imprisonment terms for proven charges	Insufficient data available
Range of total effective imprisonment terms for principal proven charges	Insufficient data available
Range of non-parole periods for principal proven charges	Insufficient data available
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	Insufficient data available
Derived non-parole period (including appeals and prior to guilty plea)	Insufficient data available

Definition	Taking something that belongs to another person while being armed with a firearm, weapon or explosive (or imitation) and threatening or using force against that person, and not intending to give the property back.
Maximum penalty	Level 2 imprisonment (25 years).
Offence history/particulars	In 1997 the maximum penalty for armed robbery increased from the former Level 2 imprisonment (20 years) to the current Level 2 imprisonment (25 years). This remains the current maximum penalty.
Offence seriousness – community panels	Mean ranking of 7.3 (level 7 on scale of seriousness) – lower than aggravated burglary. Attempted armed robbery on same level and robbery one level below. Ranked seventh in paired comparison scale of seriousness. Medium agreement (SD = 1.5) – threat and risk of harm to person and use of weapon were key seriousness factors. Was more influential than property loss.
Judicial commentary	Director of Public Prosecutions v Kennedy [2008] VSCA 263; (2008) 21 VR 431: ‘The Director further submitted that the sentencing judge failed to give sufficient weight to the maximum penalty of 25 years for armed robbery, relying upon the proposition that the high maximum sentence justifies the view that deterrence is a matter that should be given priority. The failure to give the maximum penalty its proper weight was said to be evident from the fact that the sentences imposed represented only 10 percent of the maximum penalty available’.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	1,452
% proven charges that received imprisonment	70.7%
% of principal proven charges that received a total effective sentence of imprisonment	64.7%
Median imprisonment term for proven charges that received imprisonment	3.0
Median total effective imprisonment term for principal proven charges	3.5
Median non-parole period for principal proven charges	2.0
Range of imprisonment terms for proven charges	Minimum: 0.3 years Longest: 14.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 0.3 years Longest: 15.0 years
Range of non-parole periods for principal proven charges	Minimum: 0.2 years Longest: 12.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	6.1
Derived non-parole period (including appeals and prior to guilty plea)	7.6

Definition	Going into a building without permission in order to commit an assault or property damage offence punishable by five or more years’ imprisonment while: a. armed with a firearm, weapon or explosive (or imitation); or b. knowing that another person was present or being reckless as to whether or not another person was present.
Maximum penalty	Level 2 imprisonment (25 years).
Offence history/particulars	In 1992 the maximum penalty for aggravated burglary was the former Level 3 imprisonment (15 years). In 1997 the maximum penalty was increased to the current Level 2 imprisonment (25 years). This remains the current maximum penalty. In the Second Reading Speech of the Sentencing and Other Acts (Amendment) Bill, the Attorney-General, Jan Wade, stated: ‘These crimes undermine the sense of security that people feel in their homes and workplaces. The government wishes to send a message to offenders that these crimes will not be tolerated ... Aggravated burglary will carry a new maximum term of 25 years imprisonment. The higher penalty recognises that burglary offences are particularly heinous where the safety and liberty of individuals [are] threatened’.
Offence seriousness – community panels	Mean ranking of 8.4 (level on scale of seriousness) – same level as attempted assault with intent to rape, kidnapping, false imprisonment and manslaughter. Ranked fifth in paired comparisons scale of seriousness (intention to commit a physical or sexual assault). Medium agreement (SD = 1.2) – key factors influencing seriousness were deprivation of liberty/personal invasion and intention to rape – high psychological harms. Intention to rape was a key seriousness factor that underpinned high ranking at level 8 or higher of sex offences and all offences against the person committed with that intention (for example, aggravated burglary, assault with intent to rape, kidnapping, false imprisonment, rape and attempted rape). Many said intention to steal would make it less serious but personal invasion factor would still apply and make it serious.
Judicial commentary	Director of Public Prosecutions v El Hajje [2009] VSCA 160 (26 June 2009): ‘This sentencing information raises a serious question, however, about the adequacy of current sentencing practices for this offence. The sentences being imposed appear not to reflect the very high maximum which Parliament has fixed. That is a matter of the first importance to the administration of criminal justice in this State’. Saltalamacchia v The Queen [2010] VSCA 83 (15 April 2010), Maxwell P: ‘as may be gleaned from the table of sentences for this offence set out in the judgement of the Court in DPP v El Hajje, this would appear to be reflective of current sentencing practices. As the Court said in that case, there is a real question about the adequacy of current practices, having regard to the 25 year maximum and the community expectation that home invasions be severely punished’. Van Hung Le v The Queen [2010] VSCA 199 (20 July 2010), Maxwell P: ‘Those statistics suggest that there is a very serious question to be examined about whether current sentencing practices for aggravated burglary can be justified, in view of Parliament’s clear instruction to the Courts in 1997 to sentence for this offence within parameters marked out by an increased maximum of 25 years’.
DPP challenge?	Yes: this was the first offence for which current sentencing practices were challenged.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	1067
% proven charges that received imprisonment	55.2%
% of principal proven charges that received a total effective sentence of imprisonment	48.8%
Median imprisonment term for proven charges that received imprisonment	2.0
Median total effective imprisonment term for principal proven charges	2.8
Median non-parole period for principal proven charges	1.5
Range of imprisonment terms for proven charges	Minimum: 0.1 years Longest: 12.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 0.3 years Longest: 16.0 years
Range of non-parole periods for principal proven charges	Minimum: 0.2 years Longest: 12.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	6.1
Derived non-parole period (including appeals and prior to guilty plea)	6.8

Definition	Intentionally or dishonestly (with a view to gain) damaging or destroying property by fire without lawful excuse and intending to damage or destroy property or to endanger the life of another (or knowledge that these will likely occur).
Maximum penalty	Level 4 imprisonment (15 years).
Offence history/particulars	Section 197(7) was first introduced in 1995 and the maximum penalty for arson was set at the former Level 4 imprisonment (12.5 years). In 1997 the maximum penalty was increased to the current Level 4 imprisonment (15 years).
Offence seriousness – community panels	Mean ranking of 5.5 (level 6 on scale of seriousness) – lower than armed robbery and aggravated burglary. Ranked eighth in paired comparison scale of seriousness. Low agreement (SD = 2.0) – many considered less serious as it only threatened or damaged property but disagreement as to the seriousness due to the level of risk. Overall distinction made in seriousness of offences that only risk or damage property compared with offences that risked or caused direct harm to people.
Judicial commentary	Quarrell v The Queen [2011] VSCA 125 (11 May 2011): Nine charges of arson against beach boxes, in two incidents. Three-year sentence for each charge some cumulation. Five years’ total effective sentence, with a non-parole period of three years. ‘The respondent submitted that the amount of damage caused by the offences should not be over-emphasised – it was not a mitigating factor that the applicant was an unsuccessful arsonist and that the lack of more substantial damage was somewhat fortuitous. In addition, the respondent submitted that where multiple offences were being dealt with a sentencing judge was entitled to adopt a broad brush approach. The respondent submitted that the cumulation ordered was moderate having regard to the provisions of the Sentencing Act. The respondent submitted that the protection of the community, and also general deterrence, were important considerations. The beach boxes were ‘soft targets’. The respondent further emphasised the applicant’s lack of remorse and that in the circumstances of continuing denial of guilt the judge could not take into account any prospect of rehabilitation’.
DPP challenge?	No.

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	189
% proven charges that received imprisonment	58.2%
% of principal proven charges that received a total effective sentence of imprisonment	54.1%
Median imprisonment term for proven charges that received imprisonment	2.0
Median total effective imprisonment term for principal proven charges	3.0
Median non-parole period for principal proven charges	1.5
Range of imprisonment terms for proven charges	Minimum: 0.2 years Longest: 6.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 0.2 years Longest: 13.0 years
Range of non-parole periods for principal proven charges	Minimum: 0.7 years Longest: 8.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	4.3
Derived non-parole period (including appeals and prior to guilty plea)	3.4

Definition	Preparing, making, selling, exchanging or agreeing to sell a large commercial quantity of an illegal drug or attempting to do any of these things.
Maximum penalty	Level 1 imprisonment (life).
Offence history/particulars	In 1983 the maximum penalty for the offence of trafficking in a commercial quantity of a drug or drugs of dependence was set at 25 years. In 2002 the new offence of trafficking in a large commercial quantity of a drug or drugs of dependence was introduced with a maximum penalty of Level 1 imprisonment (life). Second Reading Speech: ‘The new offence of trafficking in a large commercial quantity will attack the Mr Bigs of the drug trade, who operate at the top of the manufacturing and distribution hierarchy and who make large profits from trafficking in drugs. It is not directed at drug addicts who peddle drugs in order to obtain money to feed their own drug addiction. The new maximum penalty of life imprisonment reflects the community’s abhorrence of large-scale drug trafficking and cultivation and will warn potential offenders of the price they could pay for engaging in this illicit trade’.
Offence seriousness – community panels	Mean ranking of 7.9 (level 8 on scale of seriousness) – same level as aggravated burglary, manslaughter, kidnapping, false imprisonment, assault with intent to rape and attempted rape. Ranked sixth in paired comparisons scale of seriousness. Low agreement (SD = 1.9) – overall distinction made in seriousness of drug offences compared with offences that risked or caused direct harm to people. Indirect harms of drug offences were less influential although disagreement on this.
Judicial commentary	R v Belbruno [2000] VSCA 201 (19 October 2000): Described as ‘high-level heroin trafficker’; one charge traffick heroin 2.5 kg (10 years and six months sentence); one charge traffick cannabis (five years); one charge theft electricity (18 months); one charge possession cannabis ($250 fine). Sentence imposed was a total effective sentence of 12.5 years, with a non-parole period of nine years.
DPP challenge?	Possibly one of the offences for which current sentencing practices are/were to be challenged by the Director of Public Prosecutions (‘certain drug offences’).

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	82
% proven charges that received imprisonment	96.3%
% of principal proven charges that received a total effective sentence of imprisonment	95.8%
Median imprisonment term for proven charges that received imprisonment	7.0
Median total effective imprisonment term for principal proven charges	7.0
Median non-parole period for principal proven charges	4.5
Range of imprisonment terms for proven charges	Minimum: 1.3 years Longest: 16.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 1.5 years Longest: 21.0 years
Range of non-parole periods for principal proven charges	Minimum: 0.8 years Longest: 15.0 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	7.9
Derived non-parole period (including appeals and prior to guilty plea)	7.6

Definition	Preparing, making, selling, exchanging or agreeing to sell a commercial quantity of an illegal drug or attempting to do any of these things.
Maximum penalty	Level 2 imprisonment (25 years).
Offence history/particulars	In 1983 the maximum penalty for the offence of trafficking in a commercial quantity of a drug of dependence was set at 25 years. This remains the current maximum penalty.
Offence seriousness – community panels	Mean ranking of 7.0 (level 7 on scale of seriousness) – one below trafficking in a large commercial quantity of a drug of dependence and same level as armed robbery, sexual penetration 12–16 (CSA), recklessly causing serious injury, arson causing death and making a threat to kill. Low agreement (SD = 2.1) – overall distinction made in seriousness of drug offences compared with offences that risked or caused direct harm to people. Indirect harms of drug offences were less influential although disagreement on this. Overall distinction was made in seriousness due to lower amount.
Judicial commentary	Mustica v The Queen; Director of Public Prosecutions v Mustica [2011] VSCA 79 (30 March 2011): ‘In additional written submissions directed to re-sentencing, counsel for the Director submitted that “[A]ll things being equal, a case at the top end of trafficking in a commercial quantity of a drug of dependence would attract a sentence of similar magnitude to one at the lower end of offences of trafficking in a large commercial quantity.” In my opinion, there was force to that submission’.
DPP challenge?	Possibly one of the offences for which current sentencing practices are/were to be challenged by the Director of Public Prosecutions (‘certain drug offences’).

All data are for higher courts, 2006–07 to 2009–10 (four years)
Number of proven charges by offence	166
% proven charges that received imprisonment	84.3%
% of principal proven charges that received a total effective sentence of imprisonment	84.6%
Median imprisonment term for proven charges that received imprisonment	3.5
Median total effective imprisonment term for principal proven charges	4.0
Median non-parole period for principal proven charges	2.3
Range of imprisonment terms for proven charges	Minimum: 0.5 years Longest: 12.0 years
Range of total effective imprisonment terms for principal proven charges	Minimum: 1.3 years Longest: 13.0 years
Range of non-parole periods for principal proven charges	Minimum: 0.3 years Longest: 8.5 years
Non-parole period midpoints
Actual non-parole period midpoint for case (years)	4.4
Derived non-parole period (including appeals and prior to guilty plea)	5.0

Australian Bureau of Statistics, National Offence Index, cat. no. 1234.0.55.001 (2009).

Department of Justice, Sentencing Survey: Results of Community Consultation (Department of Justice, 2011).

Director of Public Prosecutions, Office of Public Prosecutions and Committee for Public Prosecutions, Annual Report 2010–11 (2011).

Judicial College of Victoria, Victorian Sentencing Manual (2005–) <www.justice.vic.gov.au/emanuals/VSM/default.htm>.

Judicial Commission of New South Wales, The Impact of the Standard Non-parole Period Sentencing Scheme on Sentencing Patterns in New South Wales, Research Monograph no. 33 (Judicial Commission of New South Wales, 2010).

New South Wales Sentencing Council, Reduction in Penalties at Sentence (New South Wales Sentencing Council, 2009).

Parsons, David, Anne Collins, Terri Stewart, Pam Pederson, Lloyd Hood, Margaret Oats, Rosie Smith and Carly Schrever, Rollout of Indigenous Courts to Intermediate and Superior Jurisdictions (Paper presented at AIJA Indigenous Court Conference, Rockhampton, 5–7 August 2009) <http://www.aija.org.au/Ind%20Courts%20Conf%2009/Papers/ Rollout.pdf> .

Sentencing Advisory Council [Queensland], Minimum Standard Non-parole Periods, Consultation Paper (Sentencing Advisory Council, 2011).

Sentencing Advisory Council [Queensland], Minimum Standard Non-parole Periods, Final Report (Sentencing Advisory Council, 2011).

Sentencing Advisory Council [Victoria], Community Attitudes to Offence Seriousness (Sentencing Advisory Council, 2012).

Sentencing Advisory Council [Victoria], Aggravated Burglary: Current Sentencing Practices (Sentencing Advisory Council, 2011).

Sentencing Advisory Council [Victoria], Baseline Sentences, Issues Paper (Sentencing Advisory Council, 2011).

Sentencing Advisory Council [Victoria], Causing Serious Injury – Recklessly and Intentionally: Current Sentencing Practices (Sentencing Advisory Council, 2011).

Sentencing Advisory Council [Victoria], Sentencing Severity for ‘Serious’ and ‘Significant’ Offences: A Statistical Report (Sentencing Advisory Council, 2011).

Sentencing Advisory Council [Victoria], Statutory Minimum Sentences for Gross Violence Offences, Report (Sentencing Advisory Council, 2011).

Sentencing Advisory Council [Victoria], Maximum Penalties: Principles and Purposes, Preliminary Issues Paper (Sentencing Advisory Council, 2010).

Sentencing Advisory Council [Victoria], Sentencing in the Koori Court Division of the Magistrates’ Court: A Statistical Report (Sentencing Advisory Council, 2010).

Sentencing Advisory Council [Victoria], Sentencing for Armed Robbery: A Statistical Profile (Sentencing Advisory Council, 2010).

Director of Public Prosecutions, ‘Director of Public Prosecutions Calls for Increased Sentences’, Media Release (31 August 2010).

The Hon Robert Clark, MP, Attorney-General and Minister for Finance, ‘Victorian Government Welcomes Sentencing Advisory Council Report on Gross Violence Offences’, Media Release (10 November 2011).

The Hon Robert Clark, MP, Attorney-General and Minister for Finance, ‘Suspended Sentence Abolition to Start from 1 May’, Media Release (19 April 2011).

Victorian Liberal Nationals Coalition, ‘Coalition to Set Minimum Sentence Standards for Serious Crimes’, Media Release (23 November 2010).

Director of Public Prosecutions v OJA; Director of Public Prosecutions v WBA; Director of Public Prosecutions v EBD [2007] VSCA 129 (22 June 2007)

Director of Public Prosecutions v Ramos; Director of Public Prosecutions v Delos Santos; Director of Public Prosecutions v Herasan [2003] VSCA 215 (17 December 2003)

Director of Public Prosecutions v SJK; Director of Public Prosecutions v GAS [2002] VSCA 131 (26 August 2002)

Director of Public Prosecutions v Terrick; Director of Public Prosecutions v Marks; Director of Public Prosecutions v Stewart [2009] VSCA 220; (2009) 24 VR 457

Mustica v The Queen; Director of Public Prosecutions v Mustica [2011] VSCA 79 (30 March 2011)

R v Musumeci (Unreported, NSW Court of Criminal Appeal, Hunt CJ, McInerney and Hulme JJ, 30 October 1997)

R v Sposito (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993)

New South Wales, Parliamentary Debates, Legislative Assembly, 23 October 2002 (Bob Debus, Attorney-General).

Victoria, Parliamentary Debates, Legislative Assembly, 6 December 2007 (Rob Hulls, Attorney-General).

Victoria, Parliamentary Debates, Legislative Assembly, 6 February 2008 (Robert Clark, Shadow Attorney-General).

Victoria, Parliamentary Debates, Legislative Assembly, 24 April 1997 (Jan Wade, Attorney-General).

© Copyright State of Victoria, Sentencing Advisory Council, May 2012. This publication is protected by the laws of copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968 (Cth).

Authorised by the Sentencing Advisory Council, Level 4, 436 Lonsdale Street, Melbourne VIC 3000

Publications of the Sentencing Advisory Council follow the Melbourne University Law Review Association Inc Australian Guide to Legal Citation (3rd ed., 2010).

^[1] Markarian v The Queen (2005) 228 CLR 357. Justice Kirby did not share the majority’s views on the instinctive synthesis approach, however, expressing concern that this approach did not encourage ‘logical and rational’ explanations for sentences: 404.

^[2] The statutory form of kidnapping has an additional element to the common law form, whereby the kidnapper must intend to demand from the kidnapped person or any other person a ransom for the return or release of that person: Crimes Act 1958 (Vic) s 63A.

^[3] The terms of reference listed a number of offences that subsequently became ‘significant’ offences. The amending legislation introducing significant offences commenced after the terms of reference: Sentencing Amendment Act 2010 (Vic) s 3(a), as amended by the Sentencing Further Amendment Act 2011 (Vic) s 3.

^[5] One of the Council’s functions is ‘to advise the Attorney-General on sentencing matters’: Sentencing Act 1991 (Vic) s 108C(1)(f).

^[6] Victorian Liberal Nationals Coalition, ‘Coalition to Set Minimum Sentence Standards for Serious Crimes’, Media Release (23 November 2010), 1.

^[7] Department of Justice, Sentencing Survey: Results of Community Consultation (2011).

^[11] Office of Public Prosecutions, ‘Director of Public Prosecutions Calls for Increased Sentences’, Media Release (31 August 2010).

^[12] Director of Public Prosecutions, Office of Public Prosecutions and Committee for Public Prosecutions, Annual Report 2010–11 (2011).

^[16] Leeder v The Queen [2010] VSCA 98 (23 April 2010) [36]–[37] (Maxwell P).

^[18] Kane v The Queen [2010] VSCA 213 (23 August 2010) [29]–[30] (Harper JA).

^[21] Submission 1 (P. Cash); Submission 4 (Youthlaw); Submission 6 (Jesuit Social Services); Submission 8 (Law Institute of Victoria); Submission 9 (Fitzroy Legal Service); Submission 10 (Criminal Bar Association of Victoria); Submission 13 (Victoria Legal Aid); Submission 14 (Liberty Victoria).

^[24] If the court gives a reduction in sentence for this reason, the judge or magistrate must state the sentence and the non-parole period, if any, that would have been imposed but for the plea of guilty: Sentencing Act 1991 (Vic) s 6AAA(4).

^[26] Sentencing Act 1991 (Vic) s 16. This is subject to certain exceptions, such as if the term of imprisonment is imposed in default of payment of a fine or sum of money, in respect of a prison offence or escape offence or if the offence is committed while on parole or on bail in relation to another offence: Sentencing Act 1991 (Vic) s 16(1A).

^[27] Seven death-related indictable offences are specifically excluded from the jurisdiction of the Children’s Court. Any charge against a child of murder, attempted murder, manslaughter, child homicide, defensive homicide, arson causing death or culpable driving causing death must be heard and determined in the Supreme Court or the County Court: Children, Youth and Families Act 2005 (Vic) s 516(1)(b).

^[29] A ‘young offender’ is a person under the age of 21 years at the time of sentencing: Sentencing Act 1991 (Vic) s 3(1).

^[45] This percentage derives from the results of an analysis conducted by the Council of higher courts sentencing data for the period 2006–07 to 2009–10.

^[46] If a court sentences an offender to imprisonment for 12 months or more but less than two years, it has discretion as to whether to fix a non-parole period. Parole is not possible for sentences of less than 12 months: Sentencing Act 1991 (Vic) ss 11(1)–(2).

^[57] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520; see Judicial College of Victoria, Victorian Sentencing Manual (2005–) <www.justice.vic.gov.au/emanuals/VSM/default.htm> [12.7.1].

^[62] Results of an analysis conducted by the Council on higher courts sentencing data for the period 2006–07 to 2009–10.

^[69] Those offences are theft, robbery, armed robbery, obtaining property by deception, obtaining financial advantage by deception, false accounting, handling stolen goods, destroying or damaging property or the common law offence of conspiracy to defraud: Sentencing Act 1991 (Vic) sch 1A.

^[75] The court should fix a single nominal sentence in respect of all indefinite sentences imposed. Where an offender is to be sentenced to both an indefinite sentence and additional fixed terms, then separate sentences must be fixed in respect of the additional offences. A non-parole period should not be fixed in respect of any fixed term sentences where imposed together with an indefinite sentence: Judicial College of Victoria (2011), above n 57, [12.9.8.2], [12.9.8.3].

^[79] See particularly the determination of an adjusted baseline, outlined in Recommendations 5 and 6.

^[80] There may also be some rare instances when, after the court has applied the baseline, it determines that a custodial sentence is not appropriate. In most instances, however, the Council considers that a determination of whether a custodial sentence is appropriate will usually be made by a court before applying the baseline. This is discussed further at [3.20].

^[86] Submission 13 (Victoria Legal Aid); Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[89] Director of Public Prosecutions v Terrick; Director of Public Prosecutions v Marks; Director of Public Prosecutions v Stewart [2009] VSCA 220; (2009) 24 VR 457, 475 (Maxwell P, Redlich JA and Robson AJA).

^[90] The Victorian Court of Appeal has described the ‘instinctive synthesis’ approach referred to in Markarian v The Queen as the ‘sentencing synthesis’: see Nguyen v The Queen [2010] VSCA 284 (27 October 2010) [21] (Ashley JA).

^[92] Ibid 373–374 (Gleeson CJ, Gummow, Hayne and Callinan JJ), 398 (Kirby J).

^[93] Ibid. Justice Kirby did not share the majority’s views on the instinctive synthesis approach, however, expressing concern that this approach did not encourage ‘logical and rational’ explanations for sentences: ibid 404.

^[105] It would also require the presumption that a court will always consider it appropriate to impose a non-parole period.

^[110] Sentencing Advisory Council, Baseline Sentences, Issues Paper (2011) 8–13.

^[114] R v Height [2009] 1 Cr App R (S) 177, [29]. This was in the context of Schedule 21 of the Criminal Justice Act 2003 (UK) c 44.

^[117] See, for example, the case of R v AM [2010] NZCA 114; [2010] 2 NZLR 750, 773–775, which discusses whether a starting point of eight years for rape is appropriate and how this should be applied by the courts.

^[119] The New South Wales Court of Criminal Appeal has interpreted the standard non-parole period as (among other things) only applying expressly to cases in the middle of the range of offence seriousness; this differs from the proposed baseline sentencing scheme in Victoria, which is intended to apply to all baseline offences.

^[130] Sentencing Advisory Council (Qld), Minimum Standard Non-parole Periods, Consultation Paper (2011), 51.

^[131] These reasons are still currently applicable, but given the recent decision in Muldrock v The Queen, it is possible that courts may not apply them as restrictively: Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154.

^[146] The court may not set a non-parole period for a person who is liable to serve a total period of imprisonment (or detention and imprisonment) of less than one year: Criminal Law (Sentencing) Act 1988 (SA) s 32(5)(a).

^[155] Where the victim is performing a public function (such as an emergency worker), the murder was associated with a sexual offence against the victim, the victim was under 18 years, the offender is being sentenced for two or more convictions for unlawful homicide, the offender is being sentenced for one conviction for murder and one or more other unlawful homicides and the offender already has one or more previous convictions for unlawful homicide: Sentencing Act 1995 (NT) s 53A(3).

^[163] These matters include the offender’s character, age and intellectual capacity and the presence of any aggravating or mitigating factors concerning the offender: Sentencing Act 1995 (NT) ss 5(2)(e)–(f).

^[165] Terms of Reference from Hon Cameron Dick, MP, Attorney-General and Minister for Industrial Relations, Queensland Government, to Sentencing Advisory Council (Qld), 20 December 2010, cited in Sentencing Advisory Council (Qld) (2011), above n 130.

^[166] Sentencing Advisory Council (Qld), Minimum Standard Non-parole Periods, Final Report (2011), iv.

^[172] Legal Roundtable (13 October 2011); Submission 10 (Criminal Bar Association of Victoria); Submission 13 (Victoria Legal Aid); Submission 14 (Liberty Victoria).

^[173] Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[176] Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[181] Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[188] The Council notes that offences involving ‘sexting’ may also be captured by Commonwealth criminal offences regarding the misuse of telecommunication services: Criminal Code Act 1995 (Cth) ss 474.15–16.

^[196] The Council’s analysis of higher courts sentencing outcomes for the period from 2006–07 to 2009–10 revealed that 71.3% of cases with a proposed baseline offence contained more than one charge.

^[197] There may be some rare instances when, after the court has applied the baseline, and when considering the relevant factors to arrive at an adjusted baseline, the court determines that a custodial sentence is not appropriate. In those circumstances, the court may impose a non-custodial order in accordance with its ordinary sentencing discretion. This issue is discussed further at [7.12].

^[199] The relationship between the non-parole period and the head sentence is discussed at [2.23]–[2.27].

^[203] Legal Roundtable (6 October 2011); Submission 10 (Criminal Bar Association of Victoria); Submission 13 (Victoria Legal Aid); Submission 14 (Liberty Victoria) (endorsing the submission by the Criminal Bar Association of Victoria).

^[204] Legal Roundtable (6 October 2011); Submission 10 (Criminal Bar Association of Victoria); Submission 13 (Victoria Legal Aid); Submission 14 (Liberty Victoria) (endorsing the submission by the Criminal Bar Association of Victoria).

^[206] Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[207] Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[208] Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[209] Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[210] The base sentence offence is the particular offence committed by an offender for which the base sentence has been imposed.

^[212] The requirement that a court set a non-parole period and then a head sentence for each offence predates the introduction of the standard non-parole period scheme in New South Wales: Sentencing Act 1989 (NSW) s 5, as repealed by Crimes Legislation Amendment (Sentencing) Act 1999 (NSW) sch 1. A similar provision is enacted in the current Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(1).

^[221] Ibid. This approach was also confirmed in R v Grossi [2008] VSCA 51; (2008) 23 VR 500, 510–511, and Baini v The Queen [2011] VSCA 298 (5 October 2011) [106], [123]. The Court of Appeal held that more explanation should be provided where the court has determined to cumulate the sentences: R v Grossi [2008] VSCA 51; (2008) 23 VR 500, 510–511.

^[222] Those cases were four aggravated burglary cases, four armed robbery cases, two intentionally causing serious injury cases and one case each of assault with intent to rape, recklessly causing serious injury, kidnapping and rape.

^[223] This is the case, should the current approach to aggregate sentencing continue.

^[224] Submission 8 (Law Institute of Victoria); Coroners and Justice Act 2009 (UK) c 25, s 125(1).

^[233] The scheme only applies to murder and other indictable offences: Criminal Law (Sentencing) Act 1988 (SA) ss 32(5)(ab), 32(5)(ba), 32(10)(d).

^[235] Submission 4 (Youthlaw); Submission 6 (Jesuit Social Services); Submission 8 (Law Institute of Victoria).

^[237] Submission 4 (Youthlaw); Submission 6 (Jesuit Social Services); Submission 8 (Law Institute of Victoria); Submission 10 (Criminal Bar Association of Victoria); Submission 13 (Victoria Legal Aid); Submission 14 (Liberty Victoria).

^[241] This may occur where such offenders are sentenced for an offence that either is automatically excluded from the jurisdiction of the Children’s Court or has been excluded by the discretion of the Children’s Court: Children, Youth and Families Act 2005 (Vic) ss 356(3), 516(1)(b).

^[242] Results of a Council search of available cases from 2000 to 2009 in the higher courts sentencing database revealed that there were 38 cases of children sentenced in the higher courts over that period.

^[250] Submission 10 (Criminal Bar Association of Victoria); Submission 8 (Law Institute of Victoria); Submission 14 (Liberty Victoria).

^[251] Legal Roundtable (6 October 2011); Victim Advocacy Groups Roundtable (10 October 2011).

^[256] The sentencing of children operates within a different legislative framework and is informed by a different philosophical approach to the purposes of sentencing: see Sentencing Advisory Council, Statutory Minimum Sentences for Gross Violence Offences, Report (2011), [1.42]–[1.53].

^[258] The offences were inserted by the Sentencing Further Amendment Act 2011 (Vic) s 3, amending the Sentencing Amendment Act 2010 (Vic) s 3(a).

^[262] For the period 2008–09 to 2009–10 in the higher courts, there were 155 proven charges of making a threat to kill. Over the same period in the Magistrates’ Court, there were 1,989 proven charges of making a threat to kill.

^[266] Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[267] Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[270] Submission 8 (Law Institute of Victoria); Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[271] Meeting with representatives from Working Against Culpable Driving (26 October 2011).

^[274] Meeting with representatives from Working Against Culpable Driving (26 October 2011).

^[277] Meeting with representatives from Working Against Culpable Driving (26 October 2011).

^[278] Meeting with representatives from Working Against Culpable Driving (26 October 2011).

^[288] Robert Clark, ‘Victorian Government Welcomes Sentencing Advisory Council Report on Gross Violence Offences’, Media Release (10 November 2011).

^[289] Crimes Act 1958 (Vic) s 6. The jury can find a defendant guilty of infanticide where that defendant was charged with murder but the circumstances are such that they lead the jury to a finding of infanticide. The maximum penalty for infanticide is Level 6 imprisonment (five years).

^[291] The Council did not receive any submissions proposing that these remaining fatal offences be included as baseline offences. Further, the Council considers that there are compelling reasons for the inclusion of culpable driving causing death and dangerous driving causing death as baseline offences, in addition to the fact that they are both fatal offences.

^[292] Sentencing Advisory Council, Sentencing Severity for ‘Serious’ and ‘Significant’ Offences: A Statistical Report (2011), 13.

^[294] An exception is dangerous driving causing death, which is recommend for inclusion because of its relationship with culpable driving causing death.

^[299] Sentencing Advisory Council, Community Attitudes to Offence Seriousness (2012).

^[302] Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[305] Judicial Commission of New South Wales, The Impact of the Standard Non-parole Period Sentencing Scheme on Sentencing Patterns in New South Wales, Research Monograph no. 33 (2010), 43–64.

^[307] The proportion of offenders who have received imprisonment is detailed in Sentencing Advisory Council, Sentencing Severity for ‘Serious’ and ‘Significant’ Offences: A Statistical Report (2011). See, in particular, ibid 14.

^[308] Sentencing Advisory Council, Aggravated Burglary: Current Sentencing Practices (2011), 63; Sentencing Advisory Council, Causing Serious Injury – Recklessly and Intentionally: Current Sentencing Practices (2011), 39.

^[314] The medians also reflect all of the other aggravating or mitigating factors relevant to the offence and the offender in a particular case.

^[316] Sentencing Advisory Council, Maximum Penalties: Principles and Purposes, Preliminary Issues Paper (2010) 11.

^[318] This percentage was calculated by the Council after an analysis of sentencing discounts for offences revealed in statements made by a sentencing court on the sentence that would have been given had an offender not pleaded guilty, under section 6AAA of the Sentencing Act 1991 (Vic).

^[326] A detailed description of the methodology and outcomes of the community panels research is contained in Sentencing Advisory Council (2012), above n 299.

^[329] Although there were high levels of agreement among participants on these themes, some participants expressed differing views on the seriousness of some offences, for example, drug offences: see Sentencing Advisory Council (2012), above n 299.

^[334] Director of Public Prosecutions v Edwards [2009] VSCA 232 (9 October 2009).

^[336] A search of the higher courts database on 1 February 2012 did not result in any recorded proven charges for this offence.

^[337] Victoria, ‘Crimes Amendment (Child Homicide) Bill’, Parliamentary Debates, Legislative Assembly, 6 December 2007, 4414 (Rob Hulls, Attorney-General).

^[338] Victoria, ‘Crimes Amendment (Child Homicide) Bill’, Parliamentary Debates, Legislative Assembly, 6 February 2008, 144 (Robert Clark, Shadow Attorney-General).

^[346] Country Fire Authority Act 1958 (Vic) s 39C: ‘any person who on any land in the country area of Victoria (without lawful excuse) does any act causing a fire or for the purpose of causing a fire and with intent to destroy any vegetation, produce, stock, crop, fodder or other property belonging to another shall be guilty of an indictable offence and liable to imprisonment for a term of not less than one year and not more than twenty years’.

^[354] Sentencing and Other Acts (Amendment) Act 1997 (Vic) s 60(1) sch 1 item 89.

^[363] Prior to these amendments, the Council released a report, Maximum Penalties for Sexual Penetration with a Child under 16, recommending that the statutory aggravating factor of sexual penetration with a child under 10 should be changed to sexual penetration with a child under 12.

^[370] This is based on sentencing outcomes for the offence in its prior form, being sexual penetration with a child under 10.

^[372] R v Sposito (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993) 4 (Marks J).

^[375] This is in the absence of the circumstances of aggravation as provided by the Crimes Act 1958 (Vic) ss 45(2)(a)–(b).

^[376] These are typically consensual relationships where the parties are of a similar age, but where the elder party is more than two years older than the younger party, thereby precluding the defence contained in the Crimes Act 1958 (Vic) s 45(4).

^[379] Sentencing Advisory Council, Maximum Penalties for Sexual Penetration with a Child under 16, Report (2009), [5.72].

^[381] If the offence had fewer than 10 principal proven charges that received an imprisonment sentence between 2006–07 and 2009–10, the sample of sentencing outcomes for the offence was deemed too small.

^[385] Director of Public Prosecutions v Ramos; Director of Public Prosecutions v Delos Santos; Director of Public Prosecutions v Herasan [2003] VSCA 215 (17 December 2003).

^[391] Ashdown v The Queen

[2011] VSCA 408

(7 December 2011) [27] (Maxwell P).

^[398] This is because, unlike the statutory offence of kidnapping, the common law form of kidnapping is not included as either a ‘serious’ or a ‘significant’ offence in the Sentencing Act 1991 (Vic) s 3(1).

^[400] If the offence had fewer than 10 principal proven charges that received an imprisonment sentence between 2006–07 and 2009–10, the sample of sentencing outcomes for the offence was deemed too small.

^[401] As with all current maximum penalties in the Crimes Act 1958 (Vic), this penalty is potentially subject to review; see [3.98].

^[404] Sentencing Advisory Council, Sentencing for Armed Robbery: A Statistical Profile (2010).

^[405] Director of Public Prosecutions v El Hajje [2009] VSCA 160 (26 June 2009).

^[413] Six out of the 178 cases available for analysis that were sentenced in that period had only one charge, being a charge of aggravated burglary: Sentencing Advisory Council (2011), above n 308, 91–92 (Table A8).

^[416] Sentencing Amendment Act 2010 (Vic), as amended by the Sentencing Further Amendment Act 2011 (Vic).

^[417] Robert Clark, ‘Suspended Sentence Abolition to Start from 1 May’, Media Release (19 April 2011) 1.

^[419] Australian Bureau of Statistics, National Offence Index, 2009, cat. no. 1234.0.55.001 (2009).

^[420] It is important to note that at the completion of the non-parole period, an offender becomes eligible for parole; however, release on parole is not automatically granted. If an offender is eligible for parole but is deemed unsuitable for release by the Adult Parole Board, then the offender will remain in custody until deemed suitable for release, or until the end of the sentence.

^[421] The Crimes Legislation Amendment Act 2010 (Vic) s 3(1) amended the Crimes Act 1958 (Vic) s 45(2)(a) increasing the maximum age of victims of this offence from 10 to 12 years. The new upper age limit applies to offences committed on or after 16 March 2010. All cases sentenced in 2009–10 for this offence were committed prior to 16 March 2010, and were consequently sentenced according to the previous legislation, which related to children aged under 10.

^[425] Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[427] The ‘sentence’ that may be appealed refers to individual sentences imposed for offences, including any orders for concurrency and/or cumulation and the non-parole period: Ludeman v The Queen; Thomas v The Queen; French v The Queen [2010] VSCA 333; (2010) 208 A Crim R 298, 298.

^[428] Appeals against sentences imposed before 1 January 2010 are governed by the provisions of the Crimes Act 1958 (Vic).

^[429] Sentencing Advisory Council, Sentence Appeals in Victoria: Statistical Research Paper (2012), [3.1]–[3.71].

^[449] This is where a sentence of imprisonment is imposed, and where seriousness is assessed by reference to the circumstances of the offence (‘offence factors’), but not the circumstances of the offender (‘offender factors’). See Glossary.

^[450] Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[451] As discussed at [11.6], this guidance should not be inconsistent with any prescribed baseline level.

^[453] Submission 9 (Fitzroy Legal Service); Submission 13 (Victoria Legal Aid).

^[456] Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[457] Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[469] Prior to Muldrock v The Queen, it was used as a starting point only in cases where the courts had determined an offence was in the middle of the range of objective offence seriousness and then was only used as guidance where this determination was not made or a defendant pleaded guilty. It remains to be seen what impact the decision in Muldrock v The Queen will have on New South Wales’ courts and prison system in the future: Muldrock v The Queen [2011] HCA 39; (2011) 85 ALJR 1154.

^[471] In 2010 the Council published a monitoring report on the sentence indication scheme: Sentencing Advisory Council, Sentence Indication: A Report on the Pilot Scheme (2010).

^[476] Sentencing Advisory Council, Sentencing in the Koori Court Division of the Magistrates’ Court: A Statistical Report (2010), 19.

^[488] Submission 6 (Jesuit Social Services); Submission 10 (Criminal Bar Association of Victoria); Submission 14 (Liberty Victoria).

^[493] Submission 8 (Law Institute of Victoria); Submission 10 (Criminal Bar Association of Victoria); Submission 13 (Victoria Legal Aid); Submission 14 (Liberty Victoria).

	Charges in a case receiving imprisonment	Does a baseline level apply?	Which baseline level applies?
A	One charge; not a baseline offence	No	Not applicable
B	One charge; baseline offence	Yes	Baseline level of the offence
C	Multiple charges; no baseline offences	No	Not applicable
D	Multiple charges; base sentence offence not a baseline offence	No	Not applicable
E	Multiple charges; base sentence offence a baseline offence	Yes	Baseline level of the base sentence offence

Lower seriousness	Mid-point of overall offence seriousness			Higher seriousness
	Non-imprisonment	Imprisonment
			Baseline level – ‘custodial’ mid-point of seriousness

All Respondents	Count	Per cent
1 Murder Parole (Chris)	Count	Per cent
Up to 1 year	100	0.5%
1-2 year	115	0.6%
2-5 years	336	1.8%
6-10 years	825	4.4%
11-15 years	1386	7.5%
16-20 years	2305	12.4%
21-25 years	3639	19.6%
No parole	7927	42.7%
(Blank)	1929	10.4%
Grand Total	18562	100.0%

All Respondents	Count	Per cent
2 Manslaughter Parole (Tony)	Count	Per cent
Up to 1 year	240	1.3%
1-2 year	356	1.9%
2-5 years	1258	6.8%
6-10 years	2651	14.3%
11-15 years	3215	17.3%
16-20 years	3394	18.3%
21-25 years	1708	9.2%
No parole	3640	19.6%
(Blank)	2100	11.3%
Grand Total	18562	100.0%

All Respondents	Count	Per cent
3 Armed Robbery Parole (Barry)	Count	Per cent
Up to 1 year	301	1.6%
1-2 year	586	3.2%
2-5 years	1779	9.6%
6-10 years	3437	18.5%
11-15 years	3153	17.0%
16-20 years	2811	15.1%
21-25 years	1169	6.3%
No parole	3101	16.7%
(Blank)	2225	12.0%
Grand Total	18562	100.0%

14									TES
13									H
12
11	Head								NPP
10	B								I
9			Head
8	NPP		D
7	A		NPP
6			C		Head
5					F
4					NPP
3					E
2
1							Head
							G
	Charge	1		2		3		4

14									TES
13									F
12
11	Head								NPP
10	B								G
9			Head
8	Adjusted baseline		C
7	A
6					Head
5					D
4
3
2
1							Head
							E
	Charge	1		2		3		4

Time (years) after implementation	S1a (IMP100%)	S2a (IMP75%)	S3a (IMP50%)	S1b (IMP100% + SS)	S2b (IMP75% + SS)	S3b (IMP50% + SS)
0	0	0	0	1	1	1
1	23	23	1	131	131	109
2	97	97	46	295	295	244
3	183	174	100	417	408	334
4	284	264	172	524	504	412
5	360	319	217	600	559	457
6	430	372	264	670	612	504
7	490	415	304	730	655	544
8	531	445	332	771	685	572
9	571	460	347	811	700	587
10	595	466	352	835	706	592

Offence	Number of additional prisoners
	Scenario 1b	Scenario 1a
Sex. pen. 12–16	95	50
Incest	91	91
Intentionally causing serious injury	91	67
Armed robbery	97	62
Traffick – commercial quantity	64	48
Culpable driving	47	47
Recklessly causing serious injury	86	41
Sex. pen. < 12	36	36
Rape	35	35
Persistent abuse	29	29
Aggravated burglary	80	26
Manslaughter	26	26
Traffick – large commercial quantity	28	24
Defensive homicide	21	21
Kidnapping	29	18
Sex. pen. 12–16 CSA	21	16
Dangerous driving causing death	24	10
Arson	14	10
Murder	7	7

Offence	Number of additional prisoners
	Scenario 3b	Scenario 3a
Incest	62	62
Intentionally causing serious injury	62	38
Armed robbery	71	36
Traffick – commercial quantity	52	36
Culpable driving	31	31
Rape	30	30
Recklessly causing serious injury	69	24
Sex. pen. 12–16	68	24
Sex. pen. < 12	24	24
Persistent abuse	22	22
Traffick – large commercial quantity	19	15
Aggravated burglary	70	13
Manslaughter	13	13
Sex. pen. 12–16 CSA	17	12
Kidnapping	21	9
Defensive homicide	9	9
Arson	8	4
Dangerous driving causing death	16	2
Murder	0	0

Time (years) after implementation	Armed robbery (1a)	Sex. pen. child 12-16 (1a)	Incest (1a)	Culpable driving (1a)
0	0	0	0	0
1	4	1	0	0
2	24	7	0	0
3	38	21	2	2
4	45	33	7	7
5	48	41	17	15
6	50	45	31	25
7	52	46	46	34
8	52	47	60	40
9	54	48	73	43
10	54	48	82	44

All Respondents	Count	Per cent
5 Rape Parole (Jayden)	Count	Per cent
Up to 1 year	325	1.8%
1-2 year	570	3.1%
2-5 years	1630	8.8%
6-10 years	2776	15.0%
11-15 years	2695	14.5%
16-20 years	2719	14.6%
21-25 years	1533	8.3%
No parole	3941	21.2%
(Blank)	2373	12.8%
Grand Total	18562	100.0%

Date	Meeting/roundtable
6 October 2011	Legal Roundtable
10 October 2011	Victim Advocacy Groups Roundtable
13 October 2011	Legal Roundtable
20 October 2011	Meeting with County Court Judges
26 October 2011	Meeting with representatives from Working Against Culpable Driving

Number	Date received	Person/organisation
1	10 October 2011	P. Cash
2	15 October 2011	Confidential
3	20 October 2011	Confidential
4	24 October 2011	Youthlaw
5	24 October 2011	Working Against Culpable Driving
6	27 October 2011	Jesuit Social Services
7	27 October 2011	Victorian Aboriginal Legal Service
8	28 October 2011	Law Institute of Victoria
9	28 October 2011	Fitzroy Legal Service Inc.
10	3 November 2011	Criminal Bar Association of Victoria
11	4 November 2011	Victorian Centres Against Sexual Assault Forum
12	4 November 2011	Confidential
13	4 November 2011	Victoria Legal Aid
14	7 November 2011	Liberty Victoria
15	14 February 2012	Magistrates’ Court of Victoria

Victorian Sentencing Advisory Council

Baseline Sentencing: Report [2012] VicSAC 4 (3 May 2012)