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Victorian Sentencing Advisory Council |
Sentencing Guidance in Victoria: Report
Sentencing Advisory Council, June 2016
Contents
Preface
The sentencing of criminal offenders in Victoria is a responsibility shared between parliament, the courts, and the executive government.
The framework for sentencing in Victoria is based on structured discretion: while parliament sets the limits within which judicial discretion may be exercised, the courts exercise that discretion in order to impose a just sentence that accounts for all of the particular circumstances of a given case, and is proportionate to the offender and his or her offending behaviour. This framework of structured discretion is considered essential, as often a single offence can encompass different levels of seriousness.
Sentencing guidance broadly refers to the principled considerations that a sentencing court may have regard to when exercising judicial discretion. This report sets out the Sentencing Advisory Council’s (‘the Council’) views as to the appropriate balance that should be struck between the legislature and the courts in undertaking the difficult task of sentencing. The Council recognises parliament’s central role in providing guidance to the courts, but also recognises that judicial discretion is necessary to avoid injustice. The Council’s recommendations are intended to promote consistency of approach in sentencing that ensures both that like cases are treated alike and that the sentences imposed adequately reflect the objective seriousness of the offending behaviour.
The Council believes that there is no evidence to suggest that there are broad or systemic problems with the sentencing of all offences in Victoria. The vast majority of all sentences imposed are not subject to an appeal, and their imposition is both appropriate and unremarkable. However, the system is not perfect, and there are valid concerns regarding some aspects of sentencing, such as the sentencing standards for sexual offences, particularly sexual offences against children.
This report examines in detail two principal options for reform: an enhanced guideline judgment scheme and a standard sentence scheme. Neither form of guidance is intended to supplant the limits on judicial discretion determined by parliament and prescribed in legislation. Instead, these forms of guidance are intended to structure – or guide – the exercise of judicial discretion within those determined limits. The Council’s preferred model is an enhanced guideline judgment scheme that will create an evolving, inclusive, evidence-based, and judge-led process that can respond to changing community attitudes and legislative reforms. If a standard sentence scheme is adopted, the Council recommends that it should be targeted at those offences for which there is evidence of significant problems that can be addressed by sentencing guidance, and that such a scheme should be combined with an enhanced guideline judgment scheme.
In responding to the terms of reference, the Council has formed its views using an evidence-based approach. The evidence to which the Council has had regard includes relevant qualitative research, quantitative analysis, and the commentary and feedback it has received in submissions and during consultations. The Council has also undertaken comprehensive analysis to identify those offences that have sentencing problems for which sentencing guidance is required. This analysis has then informed the Council’s consideration of the most effective legislative mechanism to provide sentencing guidance.
The reforms to sentencing recommended in this report are intended to promote consistency of approach in sentencing, and promote public confidence in the criminal justice system. Many past changes have failed to do either. This report therefore calls for a number of other reforms that will make the Victorian sentencing system more consistent, clear, and coherent.
Warning to readers
This paper contains some subject matter that may be distressing to readers, including material concerning sexual offences.
People who have personal concerns about sexual assault can contact the Sexual Assault Crisis Line on 1800 806 292, or visit www.sacl.com.au for more information.
Contributors
Authors: Donald Ritchie, Nina Hudson, Anusha Kenny, and Paige Darby
Data Analyst: Zsombor Bathy
Additional Data Analysis: Angela Volkov
Sentencing Advisory Council
Chair: Arie Freiberg AM
Deputy-Chair: Lisa Ward
Council Members: Carmel Arthur, Hugh de Kretser, Fiona Dowsley, Helen Fatouros, David Grace QC, John Griffin PSM, Sherril Handley, Brendan Kissane QC, Shane Patton, Barbara Rozenes, Geoff Wilkinson OAM, Kornelia Zimmer*
*Did not participate in any deliberations regarding this report.
Chief Executive Officer: Cynthia Marwood
Acknowledgments
The Council would like to thank all of those who made submissions in relation to this reference and those who attended meetings and the discussion forum. The Council would also like to thank the Supreme Court of Victoria, the Court of Appeal, the County Court of Victoria, the Magistrates’ Court of Victoria, the Director of Public Prosecutions, Crown Prosecutors, the Office of Public Prosecutions, Victoria Legal Aid, the Victims of Crime Commissioner, and Mr Hugh Donnelly. The Council also thanks Court Services Victoria for the provision of data, and Katharine Brown for her assistance in the preparation of this report.
Glossary
Aggregate sentence: A sentence that occurs when a judge hands down one sentence for multiple charges within a case, as opposed to individual sentences for individual charges within a case.
Baseline offence: An offence for which a baseline sentence has been prescribed under the Sentencing Amendment (Baseline Sentences) Act 2014 (Vic).
Baseline sentence: The sentence that parliament intends as the median sentence for sentences imposed for the relevant baseline offence. The median sentence is the midpoint or middle sentence when all sentences imposed for an offence over a given period are ranked from lowest to highest – so that half of all sentences imposed are lower than the median and half are higher. See ‘median’.
Case: In this report, a collection of one or more proven charges against a person sentenced at the one hearing.
Charge: In this report, a single proven allegation of an offence.
Community-based order: A flexible, non-custodial sentence that includes community service, supervision, and personal development. This order was replaced from 16 January 2012 with the community correction order (CCO).
Community correction order (CCO): A sentencing order available since 16 January 2012 that may require the offender to comply with a range of conditions including undertaking unpaid community work, undergoing treatment, and being supervised by a community corrections officer. A community correction order may also include curfews and restrictions on the offender’s movements and whom the offender may associate with (Sentencing Act 1991 (Vic) pt 3A).
Defendant: A person who is charged with a criminal offence.
Fine: A monetary penalty imposed by a court as a sentence.
Higher courts: In this report, the Victorian County Court and the Supreme Court of Victoria.
Indictable offence: A serious offence heard before a judge in a higher court. Some indictable offences may be triable summarily.
Interquartile range (IQR): The middle 50% of all sentence lengths when ordered from shortest to longest, that is, all sentences greater than the shortest 25% of sentences and less than the longest 25%. The IQR is the difference between the third quartile of sentences (the value greater than 75% of sentences imposed) and the first quartile (the value greater than 25% of sentences imposed).
Jury: A group of people (usually 12) without legal experience, chosen at random from the general community. A jury is given the responsibility of determining questions of fact, based on evidence presented in criminal trials, for indictable offences in the higher courts and returning a verdict of guilty or not guilty.
Median: 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. The median 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.
Median absolute difference (MAD): The median of all differences between sentences imposed and the overall median sentence length. The MAD range represents the middle 50% of sentences based on distance from the median. That is, 50% of sentences are within the MAD of the median sentence length, and 50% of sentences are more than the MAD from the median. Unlike the IQR, the range of sentence lengths represented by the MAD is always equal on both sides of the median.
Median total effective term of imprisonment: The middle value in a set of total effective sentences of imprisonment.
Non-parole period (NPP): The period of imprisonment set by the court that must be served by the offender in prison before he or she is eligible for release on parole.
Offender: A person who has been found guilty of an offence.
Parole: Supervised and conditional release of an offender from prison before the end of his or her prison sentence. While on parole, the offender is still serving the sentence, and is subject to conditions designed to help him or her rehabilitate, reintegrate into the community, and reduce the risk of reoffending.
Summary offence: A less serious offence than an indictable offence. Summary offences are usually heard by a magistrate.
Suspended sentence: A term of imprisonment that is suspended (that is, not activated) wholly or in part for a specified period (the ‘operational period’). If the offender reoffends during this period, they could be imprisoned for the total duration of the sentence. Suspended sentences have been abolished in the higher courts for all offences committed on or after 1 September 2013 and in the Magistrates’ Court for all offences committed on or after 1 September 2014.
Total effective sentence (TES): The product of individual sentences (and orders for cumulation or concurrency of those sentences) imposed on a person on the same occasion. In a case involving a single charge, the total effective sentence is the sentence imposed for that charge. The total effective sentence is also known as the ‘head sentence’.
Triable summarily: Specific indictable offences that can be prosecuted in the Magistrates’ Court of Victoria, subject to the consent of the accused and the magistrate.
Youth detention: In this report, youth justice centre orders and youth residential centre orders collectively.
Youth justice centre order (YJCO): A sentence requiring an offender aged 15–20 years at the time of sentencing to be detained in a youth justice centre.
In the Children’s Court, a youth justice centre order is the most severe sentence that may be imposed on an offender aged 15–20 years at the time of sentencing (under the Children, Youth and Families Act 2005 (Vic)). The maximum length of detention is two years for a single offence or three years for more than one offence.
In an adult court, offenders aged 15–20 years at the time of sentencing may be sentenced to a youth justice centre order as an alternative to imprisonment (under the Sentencing Act 1991 (Vic) ss 7(1)(d), 32–35). A youth justice centre order may be imposed for a maximum of two years in the Magistrates’ Court or three years in the County and Supreme Courts.
Summary of recommendations
Recommendation 1: Repeal of the baseline sentencing provisions
The baseline sentencing provisions should be repealed in their entirety.
Recommendation 2: Offences with identified sentencing problems requiring guidance
From its analysis of quantitative and qualitative measures, the Sentencing Advisory Council has identified the following offences as having sentencing problems that require guidance:
|
Offence
|
Crimes Act 1958 (Vic)
|
|---|---|
|
Intentionally causing serious injury
|
|
|
Recklessly causing serious injury
|
|
|
Negligently causing serious injury
|
|
|
Rape
|
|
|
Incest with child/step-child
|
|
|
Incest with child/step-child (under 18) of de facto
|
|
|
Sexual penetration with a child under 12
|
|
|
Sexual penetration with a child 12–16 under care, supervision, or
authority
|
|
|
Sexual penetration with a child 12–16
|
|
|
Indecent act with a child under 16
|
|
|
Persistent sexual abuse of a child under 16
|
s 47A
|
|
Aggravated burglary
|
Recommendation 3: An enhanced guideline judgment scheme
The existing guideline judgment scheme should be enhanced to provide the most appropriate form of sentencing guidance in order to:
Recommendation 4: Attorney-General may apply for a guideline judgment
Part 2AA of the Sentencing Act 1991 (Vic) should be amended to add provisions that allow the Attorney-General to apply for a guideline judgment, absent an appeal.
The procedure for an application by the Attorney-General should mirror, as far as is practicable, the existing provisions, and should provide for the following features:
Recommendation 5: Clarify procedure for submissions on a guideline judgment
Section 6AD of the Sentencing Act 1991 (Vic) should be amended to clarify that the Court of Appeal must, when it is considering whether to give or review, or has decided to give or review, a guideline judgment (including an application for a guideline judgment from the Attorney-General):
Such views and submissions may include proposals on the form of guidelines.
In specifying the period within which the Sentencing Advisory Council may state its views in writing, the Court of Appeal should allow such time as is reasonably required for the Council to undertake:
Recommendation 6: Guideline judgment may contain guidelines on sentencing level or range
Part 2AA of the Sentencing Act 1991 (Vic) should be amended to provide that a guideline judgment may set out the appropriate level or range of sentences for a particular offence or class of offence and that it is the intention of parliament to abolish any rule of the common law to the contrary.
Recommendation 7: Legislated standard sentence scheme as part of a combined model for providing sentencing guidance
If a new legislated guidepost is to be introduced, it should be in the form of a standard sentence scheme accompanied by the enhanced guideline judgment scheme recommended by the Sentencing Advisory Council.
The standard sentence should:
Recommendation 8: Exclusions from the standard sentence scheme
If a standard sentence scheme is introduced, the standard sentence should not apply to the sentencing of:
Recommendation 9: Court must disregard current sentencing practices where incompatible with standard sentence
If a standard sentence scheme is introduced, section 5(2)(b) of the Sentencing Act 1991 (Vic) should be amended to provide that a court must have regard to current sentencing practices unless doing so would be incompatible with the standard sentence, where a standard sentence applies.
Recommendation 10: Guideline judgment may contain guidelines on any matter related to a standard sentence
If a standard sentence scheme is introduced, Part 2AA of the Sentencing Act 1991 (Vic) should be amended to provide that a guideline judgment may set out guidelines in respect of any matter related to a standard sentence.
Recommendation 11: Criteria for inclusion of offences in the standard sentence scheme
If a standard sentence scheme is introduced, the following criteria should apply to assessing whether an offence with identified sentencing problems is suitable for inclusion in the standard sentence scheme:
1. There is evidence from structured community consultation that identifies community views on the objective seriousness of the offence.
2. The maximum penalty is not operating as a sufficient source of guidance to the community’s and parliament’s views of the objective seriousness of the offence (for example, the maximum penalty may have been overshadowed by current sentencing practices).
3. The offence is one where the objective offence seriousness can be readily identified for the offending behaviour represented by the offence (that is, there are not overlapping or multiple ‘classes’ of offending behaviour or ‘typologies’ of offending behaviour within the one offence).
4. A standard sentence would be effective in providing guidance on the middle of the range of objective seriousness for the particular offence.
5. The courts have identified that there is a special need for general deterrence.
6. If the above criteria are met, the following considerations may also be relevant:
Recommendation 12: Offences with identified sentencing problems that are suitable for inclusion in the standard sentence scheme
If a standard sentence scheme is introduced, the following offences are suitable for inclusion in the scheme:
|
Offence
|
Crimes Act 1958 (Vic)
|
|---|---|
|
Rape
|
|
|
Incest with child/step-child
|
|
|
Incest with child/step-child (under 18) of de facto
|
|
|
Sexual penetration with a child under 12
|
|
|
Sexual penetration with a child 12–16 under care, supervision, or
authority
|
|
|
Sexual penetration with a child 12–16
|
|
|
Indecent act with a child under 16
|
|
|
Persistent sexual abuse of a child under 16
|
s 47A
|
Recommendation 13: Methodology for prescribing standard sentence level
If a standard sentence scheme is introduced, the standard sentence level should be prescribed at 40% of the maximum penalty for the relevant offence.
Recommendation 14: Recommended standard sentence levels for offences suitable for inclusion within the standard sentence scheme
If a standard sentence scheme is introduced, the standard sentence levels should be prescribed as follows:
|
Offence
|
Maximum penalty
|
Standard sentence
|
|---|---|---|
|
Rape
|
25 years
|
10 years
|
|
Incest with child/step-child
|
25 years
|
10 years
|
|
Incest with child/step-child (under 18) of de facto
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25 years
|
10 years
|
|
Sexual penetration with a child under 12
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25 years
|
10 years
|
|
Sexual penetration with a child 12–16 under care, supervision, or
authority
|
15 years
|
6 years
|
|
Sexual penetration with a child 12–16
|
10 years
|
4 years
|
|
Indecent act with a child under 16
|
10 years
|
4 years
|
|
Persistent sexual abuse of a child under 16
|
25 years
|
10 years
|
Recommendation 15: Recommendation against jury sentencing
Jury sentencing should not be introduced in Victoria.
Recommendation 16: Comprehensive research on informed public opinion regarding sentencing
The Attorney-General should consider commissioning comprehensive research to gauge informed public opinion regarding sentencing in Victoria with the aim of ensuring that future reform is appropriately evidence-based. The research could occur independently of the Sentencing Advisory Council, or through a sufficiently resourced reference to the Council.
Recommendation 17: Publication of sentencing remarks online
Victorian higher courts should publish online the sentencing remarks for every case, unless:
Sufficient resources should be made available to all higher courts in Victoria to enable publication of sentencing remarks to occur, including resources that would allow for the editing of sentencing remarks to comply with the requirements of the Judicial Proceedings Reports Act 1958 (Vic).
Recommendation 18: Review of sentencing schemes within the Sentencing Act 1991 (Vic)
The Attorney-General should consider reviewing, or requesting that the Sentencing Advisory Council review, the various sentencing schemes within the Sentencing Act 1991 (Vic) with the aim of ensuring that there is a coherent and transparent sentencing framework in Victoria.
The review should consider whether there is evidence of the need to amend or repeal any of the sentencing schemes within the Sentencing Act 1991 (Vic), including:
Executive summary
Terms of reference
This report constitutes the Sentencing Advisory Council’s response to a request from the Attorney-General, received by the Council on 24 November 2015, for advice on legislative mechanisms for sentencing guidance in Victoria.
The terms of reference require advice on the most effective legislative mechanism to provide sentencing guidance to courts in a way that:
The Council has been invited to have regard to mechanisms in existence in other comparable jurisdictions and other sentencing advisory regimes that the Council considers appropriate.
The Council has been specifically asked to provide advice on:
Context of the terms of reference
The request for advice arose in the context of the Court of Appeal’s decision in Director of Public Prosecutions v Walters (A Pseudonym) [2015] VSCA 303 (17 November 2015), where a majority of the court held that the baseline sentencing provisions were ‘incapable of being given any practical operation’.
The Council has considered the history and application of the baseline sentencing provisions. In accordance with the overwhelming majority of submissions and comments from stakeholders, the Council recommends that the baseline provisions be repealed in their entirety (Recommendation 1).
Scope of the reference and the Council’s approach
The Council has adopted a purposive approach to the terms of reference, based on answers to the following questions:
The Council has analysed sources of evidence for these two questions to the extent that those sources of evidence identify sentencing problems for particular offences. In examining different options for sentencing guidance, the Council has then considered the extent to which a method or mechanism addresses the problems identified.
The Council has taken a broad approach to identifying and consulting on the various methods of sentencing guidance that have been adopted or considered in a number of comparable jurisdictions.
Consultation and data analysis
The Council consulted with a number of criminal justice, governmental, and non-governmental stakeholders and held a discussion forum. The Council published a consultation paper in December 2015. It made a public call for submissions and received 16 written submissions.
The Council undertook comprehensive but targeted data analysis of sentencing practices from 1 July 2010 to 30 June 2015 for a number of offences identified as having possible sentencing problems.
Offences with sentencing problems requiring guidance
The Council has adopted a rigorous, evidence-based approach to the identification and assessment of offences that have sentencing problems that indicate a need for sentencing guidance. The evidence to which the Council has had regard includes relevant qualitative research, quantitative analysis, and feedback from submissions and consultations.
Evidence-based approach to the terms of reference
The following flowchart documents the Council’s evidence-based approach to examining whether there are offences with sentencing problems that demonstrate a need for sentencing guidance. It shows the Council’s:
[Flowchart]
Initial approach to identifying possible problem offences:
23 possible problem offences, 3 broad possible problem areas – More research needed to identify offences in possible problem areas (family violence, high-level fraud, firearms)
Application of quantitative and qualitative measures to identify offences with sentencing problems requiring guidance:
The Council’s view –
Recommendation 2
Offences for which there is evidence of sentencing problems requiring guidance 12 offences (Chapter 5):
All 12 offences with identified sentencing problems are suitable for guidance under an enhanced guideline judgment scheme (Chapter 6):
Recommendation 12
8 of the 12 offences with identified sentencing problems are suitable for inclusion in the standard sentence scheme (Chapter 7):
Offences for which there is insufficient evidence of sentencing problems warranting guidance (9 offences):
Offences where there is a lack of sentencing data to apply quantitative measures (2 offences):
Initial approach to identifying possible problem offences
The first step that the Council took was to develop a set of initial measures and sources of evidence for identifying possible problem offences. The Council identified the kind of sentencing problems that may indicate a need for guidance to achieve the objectives in the terms of reference. The Council also mapped out the sources of evidence that, if sufficient, may assist in identifying these problems and may justify the inclusion of problem offences in a legislative guidance scheme.
Further, the Council included all of the offences identified by stakeholders as having problems in sentencing, or where guidance on sentencing might be required to promote consistency of approach, or public confidence in the criminal justice system.
Application of these initial measures and considerations resulted in 23 possible problem offences, including three fatal offences, eight sexual offences, three serious injury offences, four drug offences, and five offences in another category. These initial measures also identified several problem areas, relating to more than one offence.
Application of quantitative and qualitative measures to identify problem offences
The Council developed a set of measures to assess critically each of the possible problem offences. These measures were examined under three dimensions, each involving a set of considerations as follows.
1. Offence characteristics, including whether:
2. Problem with sentencing – evidence of a lack of public confidence in sentencing, including:
3. Problem with sentencing – evidence of an inconsistency of approach, including:
Offences for which there is evidence of sentencing problems requiring guidance
Using quantitative and qualitative measures, the Council’s principled approach to assessing possible problem offences supports the identification of 12 offences where there is evidence of sentencing problems that warrant guidance (Recommendation 2):
|
Offence
|
Legislation
|
|---|---|
|
Intentionally causing serious injury
|
Crimes Act 1958 (Vic) s 16
|
|
Recklessly causing serious injury
|
Crimes Act 1958 (Vic) s 17
|
|
Negligently causing serious injury
|
Crimes Act 1958 (Vic) s 24
|
|
Rape
|
Crimes Act 1958 (Vic) s 38
|
|
Incest with child/step-child
|
Crimes Act 1958 (Vic) s 44(1)
|
|
Incest with child/step-child (under 18) of de facto
|
Crimes Act 1958 (Vic) s 44(2)
|
|
Sexual penetration with a child under 12
|
Crimes Act 1958 (Vic) s 45(2)(a)
|
|
Sexual penetration with a child 12–16 under care, supervision, or
authority
|
Crimes Act 1958 (Vic) s 45(2)(b)
|
|
Sexual penetration with a child 12–16
|
Crimes Act 1958 (Vic) s 45(2)(c)
|
|
Indecent act with a child under 16
|
Crimes Act 1958 (Vic) s 47
|
|
Persistent sexual abuse of a child under 16
|
Crimes Act 1958 (Vic) s 47A
|
|
Aggravated burglary
|
Crimes Act 1958 (Vic) s 77
|
Limitations of the Council’s analysis
The Council’s conclusions from identifying offences for which sentencing guidance is required are based on the available data and the extent to which analysis could be conducted within the timeframe of the reference. These conclusions do not preclude further analysis that may identify other offences for which sentencing guidance may be required. The development of a broader evidence base of informed community opinion on sentencing in Victoria (see Recommendation 16) is likely to provide further insight into whether other offences may have sentencing problems that warrant guidance.
An enhanced guideline judgment scheme
The Council considers that sentencing guidance is best provided by the courts, and that guideline judgments are the most influential and persuasive form of sentencing guidance. The Council is of the view that guideline judgments have the best capacity to address the issues identified in its analysis of offences with sentencing problems (Recommendation 3). The Council also considers that guideline judgments can address sentencing concerns that are broader than concerns regarding a particular offence, such as sentencing for family violence offences. The Victorian guideline judgment scheme, however, is currently underutilised.
Drawing on lessons from other jurisdictions and examining the current provisions, the Council has identified three key areas of reform:
Application for guideline judgment by the Attorney-General
The Council considers that, in addition to the existing provisions that allow a party to an appeal to apply for a guideline judgment, the Attorney-General should have the power to apply for a guideline judgment, absent a sentencing appeal. This would provide opportunities for guideline judgments to be given without the current reliance on an appropriate appellate ‘vehicle’ (Recommendation 4). Further, the Attorney-General could apply for guidance on matters that do not frequently reach the Court of Appeal, including matters commonly sentenced in the summary jurisdiction.
There is support for this proposal among a range of stakeholders.
The Council considers that an application from the Attorney-General would only be made where the Attorney-General considered that there was a systemic sentencing issue and that an application would be in the public interest. Experiences in other jurisdictions indicate that this power would be used infrequently, but appropriately, and could address those circumstances where, for example, the Court of Appeal itself identified a sentencing problem, but the Director of Public Prosecutions was not afforded the opportunity to seek guidance from the Court of Appeal given the absence of a suitable appeal.
Such applications and the associated guideline judgment would be separate from any proceedings before the Court of Appeal. The Court of Appeal would be required to consider an application by the Attorney-General, but it would not be required to give a guideline judgment. The Court of Appeal would also be required to provide reasons for any decision not to give a guideline judgment.
Clarified submissions procedure
A strict interpretation of the requirements of section 6AD of the Sentencing Act 1991 (Vic) suggests that the Court of Appeal should seek the views of the Council and submissions from the parties only after it has decided to give or review a guideline judgment.
The Council considers that the language in that section should be amended to reflect the Court of Appeal’s preferred procedure, whereby the Court of Appeal properly seeks the views and submissions of the parties when considering whether to give a guideline judgment, rather than after it has decided to give a guideline judgment (Recommendation 5).
In accordance with similar provisions in other jurisdictions, the Council believes that the parties to the proceedings should be able to make submissions on the proposed form of guidelines. This should also include submissions from the Attorney-General where guideline judgment proceedings are commenced by an application from the Attorney-General (Recommendation 5).
Further, the Council believes that public consultation is an important aspect of guideline judgments, and recommends that the Court of Appeal allow sufficient time for the necessary data analysis and consultation to take place when seeking the Council’s views as part of guideline judgment procedures (Recommendation 5).
Numerical guidance
The Council believes that the current absence of an express power for the Court of Appeal to give numerical guidance on the appropriate sentencing level or range is an unnecessary restriction on the court’s power to give a guideline judgment.
In practice, this restriction means that, for example, challenges to the current sentencing practices for particular offences are not conducted within the framework of a guideline judgment. As a result, the guidance provided by the Court of Appeal in such cases is necessarily confined, primarily consisting of a declaration that prior current sentencing practices are inadequate, with limited guidance on what would represent adequate sentencing practices.
The Council proposes that the provisions for guideline judgments should expressly provide for the content of a guideline judgment to include numerical guidance (Recommendation 6). Given the uncertainty around numerical guidance raised by the High Court, the Council recommends that parliament should also express its intention to abolish in the legislation any common law to the contrary (Recommendation 6).
A Victorian standard sentence scheme
A standard sentence scheme is not the Council’s preferred model of sentencing guidance. Nevertheless, the Council has made contingent recommendations in relation to the model, the offences to which the scheme should apply, and the levels at which standard sentences should be prescribed, if a standard sentence scheme were to be introduced.
If the government is minded to introduce a standard sentence scheme, the Council considers that the scheme should be in the Council’s recommended form and should apply only to offences that the Council considers suitable for the scheme. Further, the Council is of the view that a standard sentence scheme cannot, on its own, provide appropriate sentencing guidance for all of the offences identified as having sentencing problems.
Given the particular limitations of a standard sentence, the Council considers that its recommendations for an enhanced guideline judgment scheme are both necessary to assist in the functioning of the standard sentence scheme and in order to provide guidance on offences that are properly excluded from the scheme (Recommendation 7).
Model for a standard sentence
The Council considers that the standard sentence should properly relate to fixing the sentence on a charge, rather than the non-parole period for a case. This would preserve both Victoria’s approach to fixing a single non-parole period that relates to a case as a whole and the purposes of the non-parole period.
The standard sentence should represent a new guidepost to objective offence seriousness, adopting the language of the New South Wales’ standard non-parole period scheme. The High Court in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 (‘Muldrock’) considered that this scheme preserved the instinctive synthesis approach to sentencing (Recommendation 7).
There was strong support in submissions for retaining the instinctive synthesis approach, which allows for a sentencing court to properly consider all of the relevant facts and circumstances in a case when exercising judicial discretion. Accordingly, the Council considers that the standard sentence should be a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account (Recommendation 7).
Consistent with the common law as stated in the High Court’s decision in Muldrock, the standard sentence should represent the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. The Council adopts language that hews closely to the New South Wales sentencing provisions that define a standard non-parole period in order to ensure that the standard sentence represents a similar legislated guidepost to objective offence seriousness.
The Council does not consider it appropriate for the standard sentence scheme to include a minimum non-parole period, given that the operation of the scheme is premised on the preservation of judicial discretion. A recent Council report on the imposition of non-parole periods in Victoria shows no evidence of any issues with the way in which Victorian courts fix non-parole periods. Further, to require a minimum proportion non-parole period would conflate two models of sentencing guidance – namely a defined term and a defined percentage scheme.
Exclusions from the standard sentence scheme
The Council considers that the standard sentence scheme should not apply to matters heard and determined summarily in the Magistrates’ Court (Recommendation 8).
Further, given the different approach to sentencing children in Victoria, the Council recommends that the sentencing of all offenders under the age of 18 at the time of offending should be expressly excluded from the operation of the scheme (Recommendation 8), regardless of whether or not those offenders are sentenced in the Children’s Court or in the higher courts. 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, and the distinct and different approach to sentencing children warrants their exclusion from the scheme.
The Council has not expressly excluded from the standard sentence scheme the sentencing of young offenders aged over 18 who are considered eligible for a youth justice centre order. The standard sentence represents a guidepost to objective offence seriousness only, and it does not account for any aggravating or mitigating factors that relate to the offender. As a result, the Council considers that a court’s proper regard to the standard sentence, alongside all of the circumstances of the case, would not exclude the imposition of such a sentence in appropriate cases.
Standard sentence taking precedence over current sentencing practices
The Council considers that, where a standard sentence applies to an offence, the standard sentence should operate as the new guidepost to objective offence seriousness. Accordingly, the Council recommends that the standard sentence should take precedence, and a court should disregard current sentencing practices to the extent that current sentencing practices are incompatible with the standard sentence (Recommendation 9).
Guidance on a standard sentence scheme
The Council considers that, if a standard sentence scheme is introduced in Victoria, the guideline judgment scheme should be amended to provide the express power for the Court of Appeal to give a guideline judgment in relation to any aspect of this scheme (Recommendation 10).
Criteria for inclusion of offences in the standard sentence scheme
The Council is of the view that only certain offences would benefit from a further legislative guidepost. This is because not all offences have the same identified problems with regard to sentencing.
In particular, offences that include ‘categories’ of offence typologies, or differing forms of culpability, would not be assisted by a single legislated guidepost. Such a guidepost is unlikely to be of meaningful assistance to a court tasked with sentencing very different forms of offending that fall under a single offence.
The Council is of the view that any standard sentence scheme should only apply to those offences where a standard sentence is considered appropriate according to the Council’s recommended criteria (Recommendation 11). Those criteria are:
1. There is evidence from structured community consultation that identifies community views on the objective seriousness of the offence.
2. The maximum penalty is not operating as a sufficient source of guidance to the community’s and parliament’s views of the objective seriousness of the offence (for example, the maximum penalty may have been overshadowed by current sentencing practices).
3. The offence is one where the objective offence seriousness can be readily identified for the offending behaviour represented by the offence (that is, there are not overlapping or multiple ‘classes’ of offending behaviour or ‘typologies’ of offending behaviour within the one offence).
4. A standard sentence would be effective in providing guidance on the middle of the range of objective seriousness for the particular offence.
5. The courts have identified a special need for general deterrence.
6. If the above criteria are met, the following considerations may also be relevant:
Offences suitable for inclusion within the standard sentence scheme
In applying these criteria, the Council has concluded that, of the offences with identified sentencing problems requiring guidance, the following offences are suitable for inclusion within the standard sentence scheme (Recommendation 12):
The Council considers that the remaining offences (which it regards as unsuitable for a standard sentence) with identified sentencing problems requiring guidance are best addressed through the provision of a guideline judgment under the enhanced guideline judgment scheme. These offences are:
Methodology for prescribing a standard sentence
The Council has developed a framework for prescribing the standard sentence drawing on the methodology adopted in New South Wales for prescribing standard non-parole periods. However, the Council’s framework is intended to be a more transparent approach than that in New South Wales, based on a consistent relationship between the standard sentence and the maximum penalty.
The Council has adopted the maximum penalty as a starting point to prescribing the standard sentence, given that the maximum penalty is the current guidepost to parliament’s view of the gravity of an offence. This approach necessarily assumes that the current maximum penalties, including relativities between offences, are appropriate. The scope of this reference has not allowed the Council to consider the broader question raised by this assumption.
The Council considers that the objective range of seriousness for an offence is represented by the first 80% of the maximum penalty. This is because a proportion of the maximum penalty (at the top end of the range) must allow for the sentencing of the worst cases involving the worst offenders, which necessarily includes both objective and subjective factors. The Council has reserved 20% of the maximum penalty for this purpose.
Having identified the range of objective offence seriousness as representing 80% of the maximum penalty, the Council concludes that the middle of that range equals 40% of the maximum penalty. The Council therefore recommends that the standard sentence should be prescribed at 40% of the maximum penalty for the relevant offence (Recommendation 13).
Recommended standard sentences
The Council has applied its methodology in setting a standard sentence for the offences that it has identified as:
The Council recommends the following standard sentence levels (Recommendation 14):
|
Offence
|
Maximum penalty
|
Standard sentence
|
|---|---|---|
|
Rape
|
25 years
|
10 years
|
|
Incest with child/step child
|
25 years
|
10 years
|
|
Incest with child/step-child (under 18) of de facto
|
25 years
|
10 years
|
|
Sexual penetration with a child under 12
|
25 years
|
10 years
|
|
Sexual penetration with a child 12–16 under care, supervision, or
authority
|
15 years
|
6 years
|
|
Sexual penetration with a child 12–16
|
10 years
|
4 years
|
|
Indecent act with a child under 16
|
10 years
|
4 years
|
|
Persistent sexual abuse of a child under 16
|
25 years
|
10 years
|
Limitations and criticisms of a standard sentence scheme
The Council has identified a number of limitations with legislated guidepost schemes, including the proposed standard sentence scheme. The limitations include:
The Council has attempted to address the first of these criticisms by articulating a principled approach to the inclusion of offences within the scheme and a clear methodology for setting the standard sentence. However, some of the limitations remain.
The Council notes, in particular, that applying a legislated guidepost in the form of a standard sentence is problematic in some circumstances, for example, when the court is considering offending by an offender other than a principal offender in the first degree (such as offending by a co-offender who is ‘involved in the commission of an offence’). Similarly, having regard to the standard sentence is problematic when sentencing charges (such as rolled-up, representative, or ‘course of conduct’ charges) that represent multiple incidences of offending, rather than a single event. Finally, a standard sentence may be of limited guidance when a court is considering the imposition of an aggregate sentence, which encompasses multiple instances of offending across different charges (although aggregate sentences are less common in the higher courts).
An aspirational model for sentencing council guidelines
Sentencing guidelines prepared by a judge-led body, separate from the legislature and the judiciary, can provide a comprehensive, methodical, and independent framework to guide sentencing courts. A well-resourced sentencing guidelines council can also undertake significant public consultation and sentence monitoring functions. The combination of these responsibilities has the effect of encouraging consistency through clearly articulated principles and a structured sentencing framework, as well as promoting public confidence in the criminal justice system through education, engagement, and transparency.
Based on comprehensive analysis of sentencing councils in other jurisdictions, the Council believes that guidelines delivered by a judge-led sentencing council could address all of the sentencing problems identified in this report. Guidelines delivered by a sentencing council could also resolve some of the issues identified with the Council’s other recommended guidance options.
The Council, however, recognises that guidelines delivered by a sentencing council represent a significant departure from the current sentencing framework in Victoria and the proposal requires further development. There are significant obstacles to overcome before a sentencing guidelines council could be introduced in Victoria, including:
Nevertheless, the Council considers that a judge-led sentencing guidelines council ought to be given consideration in the future, particularly after the Council’s recommended reforms have been implemented and evaluated. A ‘dialogue’ model of sentencing guidance, similar to that in Scotland, is the Council’s preferred model on the available evidence, as it preserves the primacy of the Court of Appeal as a source of sentencing guidance, but it enables research, consultation, and resourcing issues to be dealt with externally.
Other models of guidance considered by the Council
In accordance with its broad, purposive approach, the Council has considered a number of other legislative mechanisms that may provide sentencing guidance, including:
Based on its analysis of the available data within the timeframe of the reference, the Council considers that there is not sufficient evidence to suggest that there is a need to amend the maximum penalties for any of the offences that it has identified as having sentencing problems that require sentencing guidance.
The Council considers that mandatory and statutory minimum sentences do not constitute a form of sentencing guidance and instead would simply limit the necessary exercise of judicial discretion. In accordance with both the available research and the majority of stakeholders, the Council’s view is that mandatory and statutory minimum sentences are not compatible with the framework for sentencing in Victoria, which is based on structured discretion, and their introduction or expansion would result in a grave risk of injustice.
The Council also considers that sentencing grids represent a more structured form of mandatory sentencing, rather than a structured form of sentencing guidance, and that they are not appropriate in the Victorian context. This is in accordance with all of the stakeholders who made submissions addressing this form of sentencing.
Recommendation against jury sentencing
Given that a trial of jury sentencing has been proposed, the Council has given extensive consideration to jury sentencing as a model of sentencing guidance.
Jury sentencing would only affect the very small proportion of matters sentenced in the higher courts after a jury trial, given that the majority of offenders sentenced in the higher courts plead guilty.
There are a number of other compelling reasons, however, to recommend against involving jury members in the sentencing process. Research suggests:
All of the stakeholders who commented on jury sentencing recommended against its introduction. The Council agrees with both the research and stakeholders’ views and recommends against the introduction of jury sentencing in Victoria (Recommendation 15).
Assessing and enhancing public confidence
The Council considers that gauging informed public opinion, adopting further measures to improve transparency in sentencing, and continuing public education on sentencing issues represent interrelated mechanisms that are likely to promote public confidence in the criminal justice system.
Gauging informed public opinion and confidence
The Council notes that a number of studies (including the Tasmanian Jury Sentencing Study and the Victorian Jury Sentencing Study) show that members of the public are far more likely to consider a sentence as appropriate when they:
The Council considers that gauging informed public opinion on sentencing (as part of its statutory function) is an essential part of promoting public confidence in sentencing. Such research is resource intensive and requires sufficient time (often several years) to collect representative samples and analyse data. Nevertheless, the value of such work – to the courts, to government, to policy makers, and to members of the public – cannot be overstated. The Council believes that government should consider opportunities for initiating or promoting such studies, either independently of the Council or through a reference to the Council (Recommendation 16).
In considering the ways in which matters related to sentencing might promote public confidence in the criminal justice system, the Council has made two additional recommendations, based on the critical need for transparency in sentencing.
Publication of sentencing remarks
The Council considers that a judge’s reasons for sentence (‘sentencing remarks’) are one of the key, primary sources of transparency in the criminal justice system. Sentencing remarks assist in communicating sentencing considerations, processes, and judicial reasoning to all interested parties, and their free availability can encourage accurate media coverage of sentencing decisions. Given that neither a court nor a judicial officer can provide public comment on a particular case, sentencing remarks represent one of the few avenues for countering public misunderstanding and, sometimes, deliberate misinformation regarding a judge’s decision in a particular case.
While acknowledging the resourcing implications, the Council recommends that, by default, the higher courts in Victoria should publish the sentencing remarks for a case, unless the matter is subject to a suppression order or the sentencing judge believes that publication would be contrary to the interests of justice (Recommendation 17).
Review of sentencing schemes
The scope of this reference has not afforded the Council the time to separately analyse components of the sentencing framework in Victoria and gather evidence on how each component contributes to or derogates from:
The Council considers, however, that the layering of different schema into the Sentencing Act 1991 (Vic) over time (and on an ad hoc basis) has had the inevitable result of increasing the complexity of the sentencing task. Any increase in the complexity of sentencing is likely to contribute to inconsistency in the approach to sentencing and a lack of community confidence in the criminal justice system, given that complexity generates a lack of transparency and clarity around the sentencing exercise.
As a consequence, the Council recommends that the Attorney-General should consider reviewing, or requesting that the Council review, the various sentencing schemes within the Sentencing Act 1991 (Vic) with the aim of ensuring that there is a coherent and transparent sentencing framework in Victoria (Recommendation 18).
Ongoing sentencing education to promote public confidence
Finally, while educating the public on sentencing issues remains a key focus of the Council’s work, it is necessarily limited by the Council’s available resources and the competing demands for those resources in fulfilling the Council’s statutory functions. To that end, the Council welcomes the participation of all key stakeholders in the criminal justice system, and their contributions to the educational work of the Council.
Chapter 1: Introduction to the sentencing guidance reference
Structure of this report
Background to the terms of reference
1.4 On 17 November 2015, the Court of Appeal handed down its decision in the case of Director of Public Prosecutions v Walters (A Pseudonym)[1] – an appeal by the Director of Public Prosecutions that concerned the first sentence imposed under the provisions introduced into the Sentencing Act 1991 (Vic) by the Sentencing Amendment (Baseline Sentences) Act 2014 (Vic).
1.5 A majority of the court held that these provisions were ‘incapable of being given any practical operation’[2] and that the baseline sentencing scheme was ‘incurably defective’.[3]
give Parliament on behalf of the community a far greater say in the overall level of sentences that are imposed in our courts, while still allowing the courts to take into account the facts of individual cases in determining the sentence for each case.[4]
Terms of reference
Scope of the reference and the Council’s approach
Consistency of approach in sentencing
1.16 The Council considers that ‘consistency of approach’ in sentencing does not simply mean consistent sentencing outcomes. Some stakeholders considered that there was too much unjustified or inappropriate consistency in the sentencing outcomes for some offences, based on courts’ adherence to current sentencing practices above other sentencing considerations.[5]
1.17 Consistency of approach, however, is related to the adequacy of sentencing outcomes for particular offences, on the basis that an inconsistent approach by a court to assessing offence seriousness (including relative offence seriousness) may result in inadequate sentences.[6] This inadequacy may be evidenced by current sentencing practices that do not reflect the seriousness indicated by the maximum penalty (and where such inadequacy has been commented on by the Court of Appeal).
1.18 A number of stakeholders questioned the premise for the terms of reference in relation to consistency of approach on the basis that stakeholders did not consider that there was sufficient evidence to demonstrate inconsistency of approach in sentencing in Victoria.[7]
There is no evidence provided in support of the reference that indicates that the system is failing to provide proper consistency, whether internally or by reference to other domestic or international criminal justice systems.[8]
Empirical evidence of systematic, unjustifiably disparity in sentencing approach is currently lacking in respect to particular offences or offence categories.[9]
There is little evidence of significant inconsistencies in judges’ approaches to sentencing. On the occasions that judges do depart from the orthodox approach to sentencing, or from the acceptable range of sentencing outcomes, current appeal powers provide an effective remedy. It follows that I do not believe that inconsistency of approach is a substantial problem in Victorian sentencing.[10]
Sources of evidence for inconsistency
Public confidence in the criminal justice system
1.24 Within the context of sentencing, the Council’s 2011 report entitled Predictors of Confidence: Community Views in Victoria found that members of the Victorian public are moderately confident in the courts and in judges’ ability to impose appropriate sentences. Differences in confidence were associated with how punitive those surveyed were, their age, and their income.[11]
1.25 As with inconsistency of approach, a number of stakeholders questioned the premise for the terms of reference in relation to public confidence on the basis that stakeholders did not consider that there was sufficient evidence to demonstrate a lack of public confidence in the criminal justice system with regards to sentencing in Victoria.[12]
The correlation between apparent inconsistency and apparent lack of public confidence is difficult to measure beyond media reporting of public reaction to individual sentences. The vast majority of sentences given in Victoria are within range and pass without public comment.[13]
The studies to date suggest there is a gap between the views of informed and uninformed members of the community, with ‘informed members of the public overwhelmingly approv[ing] of the sentences given by our judges’.[14]
the research demonstrates that when informed of the facts relevant to sentencing, members of the public do not generally consider that the sentences imposed upon offenders by judicial officers are too lenient.[15]
Sources of evidence for public confidence
1.29 In preparing its advice, the Council had regard to its Community Attitudes to Offence Seriousness report, which details a ranking of seriousness for select serious offences developed by gauging the opinions of a sample of the Victorian community.[16]
• the Tasmanian Jury Sentencing Study;[17] and
• the Victorian Jury Sentencing Study.[18]
Considered methods of sentencing guidance
Human rights considerations
1.35 As a public statutory authority, it is unlawful for the Council ‘in making a decision, to fail to give proper consideration to a relevant human right’.[19] To that end, in developing its advice, the Council has had regard to the human rights contained in the Charter of Human Rights and Responsibilities Act 2006 (Vic).
1.36 In particular, consideration of the right to equality before the law[20] has informed the Council’s recommendations in relation to the model of sentencing guidance that would best promote consistency of approach in sentencing. Additionally, the requirement that court decisions should be public[21] has informed the Council’s recommendation in relation to the publication of sentencing remarks (see [10.17]–[10.29]).
Consultation
Chapter 2: The current sentencing framework in Victoria
Overview
Sentencing of adults
2.3 The sentencing purposes listed in section 5(1) of the Sentencing Act 1991 (Vic) – namely, just punishment, deterrence, rehabilitation, denunciation, and community protection – are the only purposes for which a sentence can be imposed. The Sentencing Act 1991 (Vic) provides that a judicial officer can impose a sentence for a combination of more than one of these purposes.[22] There is no further guidance in the legislation as to how to balance these purposes, even though ‘[a]ll these purposes cannot, in logic, coexist’.[23]
2.5 The Sentencing Act 1991 (Vic) also includes a number of considerations that the sentencer must take into account when sentencing an offender, including the maximum penalty for the offence, current sentencing practices, the nature and gravity of the offence, the offender’s culpability and degree of responsibility for the offence, and the impact of the offence on any victim.[24]
2.7 When imposing a sentence on an offender, the court must also have regard to the sentencing hierarchy in the Sentencing Act 1991 (Vic). The hierarchy is the legislative expression of the principle of parsimony at common law.[25] The principle provides that ‘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’.[26]
2.9 Similarly, a court must not impose a custodial sentence unless it considers that the purposes of the sentence cannot be achieved by a non-custodial sentence.[27] If a court sentences an offender 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.[28]
2.10 The common law supplements these legislative provisions. A number of fundamental principles established at common law guide and limit the type or severity of sentence that should be imposed. Among these are the principles of proportionality, parity, and totality and the avoidance of double punishment.[29]
Sentencing of children
2.11 The sentencing of children in Victoria is largely undertaken by the Children’s Court of Victoria (‘Children’s Court’), which operates as a ‘specialist court’[30] under the distinct legislative scheme set out in the Children, Youth and Families Act 2005 (Vic).
2.12 Given the distinct nature of youth and youth offending, specialised responses to child crime have been developed. Children sentenced under the Children, Youth and Families Act 2005 (Vic) are subject to different sentencing principles and sanctions from the principles and sanctions used for offenders sentenced under the Sentencing Act 1991 (Vic). For example, the Children’s Court places particular emphasis on the rehabilitation of offenders and the need to divert young people from custody and from further involvement in the criminal justice system.[31]
Jurisdiction of the Children’s Court
2.13 The Children’s Court has jurisdiction to hear and determine summarily charges for all indictable offences committed by children,[32] other than death-related indictable offences that are automatically excluded.[33]
• the child objects to the charge being heard summarily;[34] or
• the Children’s Court considers the charge unsuitable to be determined summarily given the existence of ‘exceptional circumstances’.[35]
Children’s Court sentencing principles, sanctions, and processes
2.15 Section 362 of the Children, Youth and Families Act 2005 (Vic) sets out the principles to be taken into account in sentencing children. Although not specifically mentioned in that section, the principle of rehabilitation underpins the first four principles set out in section 362(1), which include the preservation of family and home, the continuation of education and employment, and the minimisation of stigma.[36]
2.16 The principle of parsimony and the particular emphasis on rehabilitation in the Children’s Court mean that detention operates as a sanction of last resort.[37] The maximum period of detention that can be imposed by the Children’s Court for children aged above 15 is two years in a youth justice centre where the case involves a single charge, and three years in a youth justice centre where the child is convicted of more than one charge in a case.[38]
Sentencing children in the higher courts
2.18 In those circumstances an offender is both a ‘child’ for the purposes of the Children, Youth and Families Act 2005 (Vic)[39] and a ‘young offender’ for the purposes of the Sentencing Act 1991 (Vic).[40]
2.19 A higher court may sentence a child under either the Children, Youth and Families Act 2005 (Vic) or the Sentencing Act 1991 (Vic). However, if the court wishes to impose a sentence of detention, it must sentence the child under the Sentencing Act 1991 (Vic).[41] 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.[42]
2.21 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.[43]
2.22 When a child is sentenced under section 7(1) of the Sentencing Act 1991 (Vic), the County Court or the Supreme Court takes into account the purposes, principles, and factors set out in section 5 of the Act.[44] However, the court may also be guided by factors set out in the Children, Youth and Families Act 2005 (Vic).[45]
Sentencing young offenders to youth detention
2.23 The Sentencing Act 1991 (Vic) provides the 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.[46]
2.24 This ‘dual track’ system is intended to prevent immature and vulnerable offenders from entering the adult prison system. To make this order, 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’.[47] 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’.[48]
2.25 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.[49] These maxima apply regardless of how many charges the young offender is sentenced for in the same proceeding.[50]
Sentencing methodology
No fixed methodology
2.26 There is no fixed methodology for sentencing in Victoria that determines the order in which a court must consider all of the prescribed factors identified in the Sentencing Act 1991 (Vic)[51] and the principles under the common law.
Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[52]
Instinctive synthesis
2.29 The approach to sentencing under the common law and applied in Victoria is known variously as ‘instinctive synthesis’,[53] ‘intuitive synthesis’,[54] or ‘sentencing synthesis’.[55] Under this approach to sentencing, the court is required to take into account all of the relevant factors in a case and then arrive at a sentence, including a non-parole period (where required).[56]
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 what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.[57]
2.32 The sentencing synthesis approach has been viewed by the courts as different from, and has been contrasted with, a ‘two-stage’ approach. In the ‘two-stage’ 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.[58]
2.33 The majority of the High Court in Markarian was critical of the two-stage approach because the court considered that it did not take into account the ‘many conflicting and contradictory elements’ relevant to an offender.[59] The High Court further added that to single out specific factors and provide them with ‘numerical or proportionate value ... distorts the already difficult balancing exercise which the judge must perform’.[60]
requires an approach to sentencing for [standard non-parole period] offences that is consistent with the approach to sentencing described by McHugh in Markarian v The Queen.[61]
2.35 Of particular relevance to the application of this approach were the High Court’s comments that there was nothing in the New South Wales legislation that ‘require[d] or permit[ted] the court to engage in a two-stage approach to the sentencing of offenders’.[62] 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.
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.[63]
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.[64]
Other legislative schemes under the Sentencing Act 1991 (Vic)
Serious offender provisions
2.41 Prior offending is considered an aggravating factor in the analysis of an offender’s character.[65] 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.
• a serious arson offender for an arson offence.[66]
• 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.[67]
2.44 Further, Part 2A of the Sentencing Act 1991 (Vic) reverses the general statutory presumption that sentences are to be served concurrently.[68] 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.[69]
Continuing criminal enterprise offenders provisions
2.46 Where an offender has been convicted of three or more prescribed offences[70] (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 is liable (for that offence and, if in the same hearing, the qualifying offences[71]) to twice the maximum penalty that applies to that offence, or up to 25 years’ imprisonment (whichever is the lesser).[72]
Indefinite sentences
2.48 The court may impose an indefinite term of imprisonment on its own initiative or after an application by the Director of Public Prosecutions,[73] but only if the court is satisfied that the offender is a serious danger to the community because of:
• any other special circumstances.[74]
2.49 An offender serving an indefinite sentence is not eligible to be released on parole,[75] and the court must not fix a non-parole period when imposing an indefinite sentence.[76] Instead, the court must fix a ‘nominal’ sentence,[77] being the period that the court would have fixed as a non-parole period had the court imposed a fixed term of imprisonment.[78]
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.[79]
2.52 Only very few offenders have received an indefinite sentence in Victoria. Further, the recent decision of Carolan v The Queen[80] suggests that the indefinite sentence is now of limited utility as a sentencing option for serious offences where the offender poses an ongoing risk of sexual or violent offending. In that case, the court discharged the last prisoner subject to an indefinite sentence and made him subject to a five-year integration period. In doing so, the Court of Appeal warned of the need to ‘guard against the “banalisation of indefinite imprisonment”’.[81] The court further said:
Where the risk posed by the appellant can be managed by means other than an indefinite sentence – including, in particular, by use of the [Serious Sex Offenders (Detention and Supervision) Act] regime of supervision and detention – it should be.[82]
Statutory minimum sentences
2.53 In Victoria, statutory minimum non-parole periods were first introduced in 2013 for the offences of intentionally causing serious injury and recklessly causing serious injury in circumstances of ‘gross violence’.[83] The scheme was subsequently expanded in 2014 to include manslaughter in circumstances of gross violence and manslaughter by a single punch or strike (in certain circumstances).[84]
2.54 For the offences of causing serious injury (either intentionally or recklessly) in circumstances of gross violence, a non-parole period of not less than four years must be imposed unless a ‘special reason’ exists.[85] The minimum non-parole period for single punch or gross violence manslaughter is 10 years, unless the court similarly finds that a ‘special reason’ exists.[86]
2.55 The scheme was further expanded by the Sentencing Amendment (Emergency Workers) Act 2014 (Vic) to include statutory minimum sentences for assault offences committed against persons defined as ‘emergency workers’ while those persons are on duty.[87]
2.57 Further, at the time of writing, the Serious Sex Offenders (Detention and Supervision) Amendment (Community Safety) Bill 2016 (Vic), which creates a new statutory minimum sentence for certain breaches of supervision orders,[88] has been introduced and second read in the Legislative Assembly of the Parliament of Victoria.
Special reasons
2.58 A non-exhaustive list of special reasons is given in section 10A of the Sentencing Act 1991 (Vic), which provides that a court may impose a sentence less than the statutory minimum. The court may declare that a ‘special reason’ exists ‘if there are substantial and compelling circumstances that justify doing so’, among other factors.[89] This allows for unforeseen offence or offender circumstances that may require a penalty other than the statutory minimum.
2.59 The Council’s data analysis has found that, to date, two offenders have been sentenced for intentionally causing serious injury in circumstances of gross violence, while one offender has been sentenced for recklessly causing serious injury in circumstances of gross violence. In each case, the court concluded that there existed a special reason for not imposing a non-parole period of at least four years. To date, no offenders have been sentenced for single punch or gross violence manslaughter.[90]
Charging methods
2.60 In addition to the legislative schemes discussed above, the way in which charges are brought on an indictment also has a bearing on the sentencing for the offences to which they relate (although the Council has not examined this). For example, charges may be brought as rolled-up or representative charges, or, in particular circumstances, as ‘course of conduct’ charges.[91]
Chapter 3: Sentencing guidance in Victoria
Overview
What is meant by ‘sentencing guidance’?
This obligation requires that the law be accessible, foreseeable in its consequences; and non-arbitrary in its application. These last two requirements imply a dual obligation to have and to regulate judicial discretion in order to fulfil sentencers’ ‘twin duties of imposing just sanctions and assuring fair and equal justice’.[92]
Existing sources of sentencing guidance in Victoria
Guidance from the maximum penalty
3.8 For example, the maximum penalty for murder is life imprisonment,[93] which is the highest maximum penalty that can be set in Victoria. The Sentencing Act 1991 (Vic) contains a scale of statutory maximum penalties of imprisonment, ranging from Level 1 (life imprisonment) to Level 9 (6 months’ imprisonment).[94]
3.9 The legislative view of the gravity of an offence is primarily expressed through the maximum penalty. Section 5(2)(a) of the Sentencing Act 1991 (Vic) states that: ‘In sentencing an offender a court must have regard to ... the maximum penalty prescribed for the offence’.[95] The fact that this factor is placed first among the matters to which a court must have regard is an indication of its significance.[96] Therefore, the maximum penalty is an important consideration in determining sentence.
It is sometimes said that a judge, in obedience to s.5(2)(a), ‘steers by the maximum’. It is a helpful metaphor, but two things should be said of it. One is that there is a difference between steering by the maximum and aiming at the maximum. The penalty prescribed for the worst class of case is like a lighthouse or a beacon. The ship is not sailed towards it, but rather it is used as a navigational aid. The other is that steering by the maximum may decrease the sentence that might otherwise be imposed as well as increase it.[97]
3.11 In fixing a maximum penalty for an offence, parliament should aim to select a maximum penalty that provides an indication of the relative gravity of the offence compared with other offences, but yet is broad enough to allow the sentencing judge sufficient scope to accommodate the worst examples of the offence that are likely to be encountered.[98] As was stated in Markarian by a majority of the High Court:
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.[99]
Maximum penalty as a guide to seriousness
3.12 The maximum penalty is reserved for the worst class of the offence in question and is justified only for the worst examples of the offence that are likely to be encountered in practice.[100]
3.13 The general principle of reserving the maximum penalty for the worst examples of the offence in question may be displaced if the sentencer strongly regards the maximum penalty to be too low, particularly where the maximum penalty has not been recently considered by the legislature.[101]
3.14 In Ashdown v The Queen,[102] the Court of Appeal cited the majority in Markarian, stating that:
Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that:‘A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ...
A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate]’.[103]
Limited guidance from legislative changes to the maximum penalty
3.15 Where the legislature has recently considered the maximum penalty, a court should not seek to override the legislature’s judgment.[104] As stated by McHugh J in Markarian:
a judge is sensitive to legislative trends. A change in the maximum penalty for an offence or in the elements of an offence may indicate a shift in the values to be applied when sentencing for that offence.[105]
3.16 Consequently, a judge is bound to have regard to the maximum penalty, as it provides an indication of the relative seriousness with which the offence is to be viewed. Where there has been a change in the maximum penalty prior to the commission of the offence, the court must sentence the person in accordance with the new penalty without the benefit of a phase-in period.[106] Proper regard to the new maximum penalty will necessitate a change to current sentencing practices.[107]
3.17 As was stated in Harrison v The Queen, there are several mechanisms by which sentencing courts may resolve any tension between current sentencing practices and an increased maximum penalty.[108] First, the increased maximum penalty may be gradually incorporated into the instinctive synthesis process. Second, in accordance with the approach taken by Nettle JA (sitting in the Trial Division) in R v AB,[109] the judge may decline to follow current sentencing practices ‘down to a level below the sentence which a maximum ... implies it is necessary to impose’.[110]
Whenever Parliament increases the maximum sentence for any criminal offence, that increase has potential significance for all sentences to which the new maximum applies. As the present case illustrates, the increase will have very substantial implications for any sentence for an offence that is placed within the worst category of that offence. Even where the offence to which the increase applies is nowhere near the worst category, the increase remains of relevance since, in the usual case, the increase shows that Parliament regarded the previous penalties as inadequate. Even where the new maximum may only be of general assistance, it becomes the ‘yardstick’ which must be balanced with all other relevant factors.[111]
3.19 Some caution, however, needs to be exercised in concluding that an increase to the maximum penalty for an offence necessitates an increase in sentences. An increase to the maximum penalty for an offence demands an increase to sentences where parliament has indicated that it regards previous penalties to be inadequate.[112]
3.20 A sentence that is based on an incorrect view of the maximum penalty may warrant the intervention of an appellate court. However, if the difference in the maximum is small, it may not be a sufficient error in law.[113]
Evidence of changed sentencing practices following changes in the maximum penalty
3.21 The Council’s report on current sentencing practices for major driving offences provides a recent example of changes to current sentencing practices because of increases to the maximum penalty.[114] In that report, the Council analysed data on the median custodial sentence imposed before and after increases to the maximum penalties for the offences of dangerous driving causing death and negligently causing serious injury.
3.22 For dangerous driving causing death, a 100% increase in the maximum penalty (from 5 years’ imprisonment to 10 years’ imprisonment) resulted in a 20% increase in the median custodial sentence, from 2 years and 6 months to 3 years.[115] For negligently causing serious injury, a 100% increase in the maximum penalty (also from 5 years’ imprisonment to 10 years’ imprisonment) resulted in a 25% increase in the median custodial sentence, from 2 years to 2 years and 6 months.[116]
Guidance from current sentencing practices
3.25 Sentences are determined through the consideration of many factors, of which the maximum penalty for the particular offence is but one. Further, as the Victorian Sentencing Manual notes: ‘These factors are not analysed in a vacuum, but in a context created by sentences previously imposed in similar cases’.[117]
Current sentencing practices and the importance of consistency
3.27 The Sentencing Act 1991 (Vic) has as one of its purposes the promotion of ‘consistency of approach in the sentencing of offenders’.[118] Consistency in sentencing:
is an aspect of the concept of equal justice that requires that like cases be treated alike and unlike cases treated differently. Equal justice is an aspect of the rule of law and is a fundamental constitutional principle. Decisions that are capricious or arbitrary will not amount to a proper exercise of the judicial power.[119]
3.28 In Wong v The Queen,[120] Gleeson J recognised and accepted ‘some degree of inconsistency’ as unavoidable in a system that allows for discretionary decision-making.[121] However, he also said that there are ‘limits beyond which such inconsistency itself constitutes a form of injustice’.[122]
3.29 There is a public interest in consistency in sentencing, which may be undermined by the belief that sentencing is dependent on the particular judge who hears the matter.[123] The Court of Appeal in R v MacNeil-Brown observed:
Consistency in sentencing is of fundamental importance to public confidence in the criminal justice system and to the maintenance of the rule of law. Not surprisingly, the first of the stated objects of the Sentencing Act is ‘to promote consistency of approach in the sentencing of offenders’.[124]
3.30 The goal is not absolute consistency of outcome, as this is both unachievable and undesirable. The New South Wales Sentencing Council has drawn a distinction between consistency of approach and consistency of outcome in relation to sentencing. The New South Wales Sentencing Council has defined consistency in sentencing as ‘ensuring that account is taken of the same factors and that similar weight is given to those factors’.[125]
3.31 In Hili v The Queen,[126] the High Court held that consistency with current sentencing practices means consistency in the application of relevant legal principles, not mathematical or numerical equivalence, and that consistency is ‘not capable of mathematical expression’.[127] In other words, there is no right sentence, but there is a right way to sentence.
• Unifying principles can only be discerned from past sentences by examining the whole of the circumstances that have given rise to the sentence.[128]
Statistical analysis as part of current sentencing practices
the phrase ‘current sentencing practices’ in s 5(2) means, in the context of a particular sentencing task, the approach currently adopted by sentencing judges when sentencing for the particular offence. That is, the inquiry is directed particularly, but not exclusively, at the kinds of sentences imposed in comparable cases.The identification of current sentencing practices for an offence will usually require consideration both of relevant sentencing statistics for the offence and of sentencing decisions in comparable cases.[129]
3.34 Current sentencing practices therefore encompass both the approach taken in applying sentencing principles and the statistical or quantitative information on the sentences imposed in comparable cases resulting from the application of those principles.[130]
Statistics do no more than establish minimum and maximum sentences and the average and median sentences imposed over a particular, and necessarily arbitrary period. Indeed, there is a danger that undue reliance upon the average or median sentence imposed during a particular period will distract the sentencing judge from the particular circumstances of the case in hand and has the capacity to distort sentencing in particularly serious cases towards the average or median figure. The statistics cited provide guidance in only a limited way to the sentence that should have been imposed in this case. By themselves, statistics do not establish a sentencing practice.[131]
Current sentencing practices provide qualified guidance on range
a sentencing judge must take current sentencing practices into account to the full extent that the law requires. Unless the case can be brought within a recognisable ground for departing from current sentencing practices, a sentencing judge is not at liberty to disregard such practices or qualify the degree to which they should be given effect. Current sentencing practices for a category of the offence must guide the range of sentences available for that category of the offence.[132]
there is no sentencing tariff as such. Apart from the maximum sentence prescribed by Parliament, the intuitive synthesis approach to sentencing implies an absence of necessary relationship between one case and another ... any notion of a mathematical norm above or below which a case might be cast according to aggravating increments and mitigating decrements is precluded by a general prohibition on the use of two part sentencing processes. At the same time ... some instances of an offence are more serious than others ... so, there is a need for at least some degree of comparison. The requirement to have regard to ‘current sentencing practices’ is properly to be understood in that context and the notions of manifest excessiveness and manifest inadequacy are similarly informed.Secondly, the need to have regard to current sentencing practices does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed ... each case is different and so it is always possible that a sentence may properly rise above or fall below the greatest and lowest sentences previously imposed. At the same time, however, the nature of criminal conduct is such that there is not infrequently sufficient similarity between two cases to imply that sentences should be comparable and, if they are not, that something has gone awry.
Thirdly, and importantly, it should not be thought that the statutory requirement to have regard to current sentencing practices forecloses the possibility of an increase or decrease in the level of sentences for particular kinds of offences. Over time, views may change about the length of sentence which should be imposed in particular cases and, when that occurs, the notions of manifest excessiveness and manifest inadequacy will be affected.[133]
3.39 Where a person has pleaded guilty to an offence, however, fairness generally requires that he or she is entitled to be sentenced in line with current sentencing practices for the offence in question at the time of pleading guilty.[134]
Stakeholders’ views on guidance provided by current sentencing practices
3.41 As discussed, maximum penalties have been said to provide a ‘yardstick’[135] by which a sentencing court may ensure consistency in sentencing and in the application of the relevant legal principles.[136]
3.42 There can, however, be a disparity between the maximum penalty for a particular offence and the current sentencing practices with regard to that offence. As explained in R v AB (No 2),[137] the guidance provided by current sentencing practices for a particular offence may conflict with the guidance provided by the statutory maximum penalty. Where this is the case, it has been said that the statutory requirement ‘to have regard to current sentencing practices does not foreclose the possibility of an increase in the level of sentences’ when due regard is given to the maximum penalty and other considerations.[138]
3.43 Despite this statement, feedback from the Council’s stakeholder forum on sentencing guidance suggests that there is a need for specific reform to ‘legislatively deal with the constraints of current sentencing practices’[139] resulting from their current interpretation. It was argued that if this issue were not broadly addressed, the same problems with the present approach to current sentencing practices may continue under any model for sentencing guidance that may be adopted.[140]
3.44 A number of submissions argued that there are issues in the way that current sentencing practices are treated at the appellate level.[141] It was also suggested that, contrary to the decision in Hili v The Queen,[142] there were instances of sentences being adjusted on appeal so as to be numerically consistent with current sentencing practices, even though those sentences were otherwise appropriate in all of the circumstances. Further, it was stated that this occurred despite existing disparity between the maximum penalty for the offence and current sentencing practices.[143]
3.46 This over-emphasis on consistency ‘under the heading of current sentencing practices’ was identified as the ‘issue that persistently hampers a natural and progressive change in sentencing standards for most offences’ rather than a lack of consistency.[144]
3.47 It was argued that if these issues with current sentencing practices were addressed, this would mitigate the need to introduce guidance mechanisms to address the ‘stagnated evolution of sentencing practices’,[145] which has occurred despite the appellate identification of the inadequacy of current sentencing practices.
3.48 Further, one stakeholder noted that ‘the common law has always been able to accommodate community standards by the organic development of sentences; under current doctrine this development has been stultified’.[146]
3.49 The primacy of current sentencing practices in Victorian sentencing law may be evidenced by appellate discussion of their relevance to the sentencing exercise. Discussions of, and challenges to, the adequacy of current sentencing practices have featured strongly in Victorian sentencing jurisprudence. One submission received by the Council examined the frequency of the use of the term ‘current sentencing practices’ in Court of Appeal judgments published on AustLII in order to support the assertion that current sentencing practices have become a predominant consideration in sentence appeals.[147]
3.50 The Director of Public Prosecutions acknowledged the advantages and disadvantages of considering current sentencing practices, noting that they are ‘a useful servant, but a dangerous master’.[148] The Director submitted that:
in the absence of more powerful legislative or judicial guidance about sentencing standards, regard to current sentencing practices is the only viable mechanism for promoting consistency. However, [current sentencing practices] does have a tendency to dominate the sentencing exercise, because it provides concrete, objective guidance, by contrast to the inchoate guidance offered by statements of principle. This becomes dangerous when [current sentencing practices] is permitted, as it currently is (at least in guilty plea cases), to define presumptive, and even binding standards.[149]
3.51 The Director proposed that confirmation should be provided such that current sentencing practices are considered as ‘advisory’ rather than ‘presumptive standards’.[150] Current sentencing practices would therefore provide guidance on sentences without identifying ‘a binding range’ or creating ‘any legitimate expectation of a particular sentencing level that would directly sustain a sentence appeal’.[151] The Director acknowledged that ‘[t]his reform would potentially reduce consistency and certainty in sentencing. But it would prevent the miring of sentencing standards in a zone fixed by history rather than good policy’.[152]
no change should be made to the way in which a court regards current sentencing practices. The Court of Appeal has shown a willingness to comment upon the adequacy of current sentencing practices in cases where the intuitive synthesis approach is believed to be inadequate. Additionally, individual judges have the capacity to sentence outside the numerical range of sentences for individual crimes where the circumstances justify it.[153]
The Court of Appeal is well placed to comment on the adequacy of current sentencing practices, to determine the extent to which courts should be constrained by current sentencing practices, and to provide guidance as to the type of sentence appropriate in the circumstances.[154]
The Council’s view on guidance provided by current sentencing practices
3.55 In light of the concerns expressed by stakeholders, the Council has considered whether it would be appropriate to recommend that ‘current sentencing practices’ be defined in legislation, so as to codify the common law stated in such cases as Hili v The Queen[155] and Wong v The Queen[156] and to clarify the way in which a sentencing court in Victoria should have regard to comparable cases.
(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.(2) The consistency that is sought is consistency in the application of the relevant legal principles.
...(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.
(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.[157]
3.60 As noted by the Director of Public Prosecutions,[158] the primacy of current sentencing practices in Victoria may be explained by the fact that, at present, there is an absence of comprehensive sentencing guidance that aligns a court’s consideration of sentencing principles with its consideration of appropriate outcomes, in numerical terms of levels or ranges.
3.61 Ultimately, the Council considered that, in the circumstances, reforming the ‘concrete, objective guidance’[159] provided by current sentencing practices may be an over-reaction to a confined problem. Indeed, it may create inconsistency in sentencing for offences or offence categories where currently no such problem exists.
3.62 Instead, this issue is one that the Council has directly addressed in Chapter 6, where it develops its recommendations in relation to an enhanced guideline judgment scheme for Victoria. Specifically, the Council recommends providing the Court of Appeal with the express power to give quantitative guidance on the appropriate level or range for an offence or offence category.[160]
3.64 Further, such guidance from the Court of Appeal – similar to the guidance provided in Winch v The Queen[161] (‘Winch’), Hogarth v The Queen[162] (‘Hogarth’), and Harrison v The Queen[163] (‘Harrison’) – would allow a sentencing court to disregard prior sentencing practices.[164]
Guidance from the Court of Appeal
Appellate review of sentences and judgments on general sentencing principles
3.65 The Court of Appeal’s criminal appeal work comprises the determination of applications for leave to appeal against sentence[165] and conviction,[166] and the determination of substantive appeals, including appeals against conviction, against sentence, and against both conviction and sentence.
3.67 The first of these functions focuses on the review of a particular case so that any errors in the sentencing process may be corrected to ensure that justice is done in that case. The second function operates at a broader, more ‘public’ level, in giving guidance and aiming ‘to clarify and develop a body of law which provides predictability, coherence, consistency, generality, equality and certainty’.[167]
Moving from the particular case or cases before it, an appellate court may state broadly the underlying principle that provides coherence to conflicting contentions or rules and which will settle not only the instant conflict, but provide future decision-makers with a framework within which to make a decision in a similar case.[168]
3.70 For example, in R v Mills,[169] the Court of Appeal made a series of propositions relevant to the sentencing of youthful offenders, and in R v Verdins[170] (‘Verdins’), the Court of Appeal set out a series of principles relating to the sentencing of offenders suffering from mental disorders, mental abnormalities, or mental impairments.
3.71 In another example, R v AB (No 2),[171] the Court of Appeal considered the weight given to an increase in the maximum penalty for the offence of manslaughter. It discussed the impact of the increase in the maximum penalty on the sentencing discretion and the future sentencing of manslaughter offences subject to the increased maximum penalty. In doing so, it gave guidance on resolving the conflict between the guidance provided by current sentencing practices and the guidance provided by a maximum penalty that had been increased by parliament (see [3.18]).
The scope for the Court of Appeal to give guidance is not dependent on the ability to give guideline judgments. Whilst some judges in that Court do confine themselves to the precise issue raised in each case, more often than not the Court provides wide ranging advice and guidance. The scope for guidance about sentencing standards, outside the guideline judgment provisions, is demonstrated by Ashdown, Hogarth and Harrison.[172]
3.73 Liberty Victoria noted in its submission that ‘[t]he Court of Appeal regularly provides authority and guidance for sentencing courts at the level of sentencing principle’.[173] It cited the example of Director of Public Prosecutions v Meyers, where the Court of Appeal stated in relation to family violence offending:
Violence of this kind is alarmingly widespread, and extremely harmful. The statistics about the incidence of women being killed or seriously injured by vengeful former partners are truly shocking. Although the cases under consideration do not fall into that worst category, they are symptomatic of what can fairly be described as an epidemic of domestic violence ...General deterrence is, accordingly, a sentencing principle of great importance in cases such as these.[174]
Appellate review of current sentencing practices
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.[175]
current sentencing for this form of aggravated burglary can no longer be treated as a reliable guide, and sentencing judges should no longer regard themselves as constrained by existing practice. The necessary change in sentencing practice for confrontational aggravated burglary will evolve over the course of decisions in individual cases. The director will play an important role in this process, by assisting judges through the making of submissions on sentencing range.[176]
Sentencing courts should no longer consider themselves constrained by existing sentencing practice for offences of [negligently causing serious injury] by driving which fall within the upper range of seriousness (as exemplified by the cases under appeal). The sentences imposed in the cases to which we have referred should not be viewed as setting any limit on the sentence that may be imposed in such a case. In particular, sentencing courts should not treat four years as a ceiling for this offence. Sentences for mid-range and lower-end instances of [negligently causing serious injury] by driving will also need to increase, in order to maintain appropriate sentencing relativities.[177]
In an appropriate case, an intermediate appellate court may express an opinion about the adequacy of [current sentencing practices] for a particular offence and, if it is found to be inadequate, may indicate that in the future sentences should be increased. In this way, inadequacies in sentencing can be addressed within the judicial process itself. The system is self-correcting, as it should be.[178]
3.80 A number of submissions received by the Council also endorsed this approach to sentencing guidance on the adequacy of current sentencing practices.[179] The Director of Public Prosecutions stated in his submission that ‘the Court of Appeal’s developing practice of analysing and disapproving [current sentencing practices] is a powerful mechanism for offering guidance on sentencing levels’.[180]
3.81 Other stakeholders considered the court’s declaration that pre-existing sentencing practices are inadequate may be of limited assistance in the absence of guidance on what would be adequate.[181]
Is the system self-correcting?
3.85 Suspended sentences were progressively abolished in Victoria. They were abolished in the higher courts for all ‘serious’ and ‘significant’ offences, including recklessly causing serious injury, committed on or after 1 May 2011.[182]
Guideline judgments
3.89 In summary, the Court of Appeal can give a guideline judgment after an application by a party to a sentence appeal or on the initiative of the Court of Appeal itself.[183] Such a judgment can be given in a case even where it is not necessary for the purposes of determining the appeal.[184]
• promote public confidence in the criminal justice system.[185]
• any other matter consistent with the principles contained in the Sentencing Act 1991 (Vic).[186]
3.92 If the court decides to give a guideline judgment, it must notify the Council and seek its views.[187] The court must also afford the Director of Public Prosecutions[188] and Victoria Legal Aid[189] the opportunity to appear and to make submissions.
3.93 The guidance provided by a guideline judgment is in addition to all of the guiding principles under the Sentencing Act 1991 (Vic)[190] that are required to be taken into account by a sentencing court. Such guidance does not limit or take away from those requirements.[191]
3.94 Although they commenced in 2004, the guideline judgment provisions have been enlivened only once. In 2014, the Court of Appeal gave a guideline judgment in the case of Boulton v The Queen (‘Boulton’).[192]
Chapter 4: Baseline sentencing
History
The [Director of Public Prosecutions’] 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.[193]
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.[194]
4.5 Contemporaneously, in a number of decisions, the Court of Appeal (or individual Judges of Appeal) had questioned the adequacy of current sentencing practices for particular offences. These cases were also referred to in the then Director of Public Prosecution’s Policy Regarding Challenging Current Sentencing Practices (now suspended).[195]
4.6 For example, in the case of Director of Public Prosecutions v CPD,[196] the Court of Appeal (in a unanimous judgment) stated in respect of the current sentencing practices for sexual penetration with a child under 10 years of age:
When 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.[197]
4.7 Similar comments had been made by the Court of Appeal or individual Judges of Appeal regarding current sentencing practices for the offences of rape,[198] cultivating a commercial quantity of cannabis,[199] intentionally causing serious injury,[200] persistent sexual abuse of a child under 16,[201] and recklessly causing serious injury.[202]
Baseline reference
• the court’s consideration of the baseline sentence was to take precedence over current sentencing practices.[203]
The Council’s 2012 report
4.10 In February 2012, the Council provided its advice to the government, and in May 2012, it published that advice in the form of a report entitled Baseline Sentencing.[204] While acknowledging the views expressed by the majority of stakeholders consulted – including objections to the introduction of a baseline sentencing scheme – the Council confined its advice to those matters raised in the terms of reference.
4.12 The proposed model was similar to the ‘standard non-parole period statutory scheme’[205] operating in New South Wales. At the time of the Council’s advice, that scheme had been recently considered and upheld by the High Court in Muldrock v The Queen.[206]
Sentencing Amendment (Baseline Sentences) Act 2014 (Vic)
4.14 On 2 April 2014, the Sentencing Amendment (Baseline Sentences) Bill 2014 (Vic) was introduced into parliament. The Bill was passed without amendment on 5 August 2014, and it received Royal Assent on 12 August 2014.[207]
Purpose of the baseline sentencing provisions
4.15 The legislated purposes in section 1 of the Sentencing Amendment (Baseline Sentences) Act 2014 (Vic) do not describe any intended effect on sentencing outcomes for baseline offences. The purposes, as stated, are to amend the Sentencing Act 1991 (Vic) ‘to provide for baseline sentences for indictable offences’ and to fix a baseline sentence for each of the specified baseline offences.[208]
Second Reading Speech
give Parliament on behalf of the community a far greater say in the overall level of sentences that are imposed in our courts, while still allowing the courts to take into account the facts of individual cases in determining the sentence for each case.[209]
It is clear that sentences for a number of crimes are out of step with community expectations and out of step with what is required to deter crime effectively and protect the community. Child sex offences are considered to be amongst the worst kinds of offences and this is reflected in the maximum penalties. Sexual penetration of a child under 12 and persistent sexual abuse of a child under 16 are both punishable by a maximum penalty of 25 years.Despite the high maximum penalties, between 2006–07 and 2009–10, the median sentence for the offence of sexual penetration of a child under 12 was three and a half years in jail. The median sentence for persistent sexual abuse of a child under 16 was six years imprisonment. These figures are unacceptable. The baseline sentencing reform changes this.[210]
serve as a guidepost for judges whenever they impose a sentence for those crimes. The baseline sentence is the figure that Parliament expects will become the median sentence for that offence. This requires sentencing practices to change so that, over time, for sentences to which baseline sentencing applies, half the sentences imposed for the offence should be less than this figure, and half should be greater.Thus, the sorts of instance of the offence concerned that have in the past incurred a sentence of median length ... should in future receive a sentence equal to the baseline sentence. ... Sentences for cases that deserve to incur a higher or lower sentence than the median will then be set having regard to the median sentence length required by the baseline sentence.
This bill sets baseline sentences ... higher than the current median sentences. This will serve to influence the entire range of sentences imposed for each baseline offence so that most sentences imposed for baseline offences under this bill will move higher to a greater or lesser extent as a result of the change to sentencing practices that the bill requires.[211]
Explanatory Memorandum
It is intended that the baseline sentences introduced for each of these offences will become the median sentence for that offence. Currently, the median sentence for each offence is lower than the baseline sentence. The Bill requires courts to increase sentences so that cases that currently receive a sentence at or near the current median sentence will in future receive a sentence length at or near the baseline sentence.Sentencing practices are thus expected to adjust so that, over time, half the sentences imposed should be less than the baseline sentence and half should be greater. It is intended to influence the entire range of sentences imposed for each baseline offence, so that most sentences imposed for baseline offences under this Bill will increase to a greater or lesser extent.[212]
Commencement and operation
4.22 The Act as passed stated that the commencement date was 1 July 2015 (if not proclaimed earlier). The Sentencing Amendment (Baseline Sentences) Act 2014 (Vic) was subsequently proclaimed on 7 October 2014 to commence on 2 November 2014.[213]
4.23 The baseline sentencing scheme commenced on 2 November 2014 and applied to the sentencing of the seven[214] baseline offences (shown in Table 1 with their respective baseline sentences) for offences committed on or after that date.
4.24 A detailed description of the baseline sentencing scheme is contained in the Council’s 2014 report Calculating the Baseline Offence Median.[215]
Table 1: Baseline offences and baseline sentences
|
Offence
|
Baseline sentence
|
|---|---|
|
Murder
|
25 yearsa
|
|
Trafficking in a large commercial quantity of a drug of dependence
|
14 years
|
|
Persistent sexual abuse of a child under 16
|
10 years
|
|
Sexual penetration with a child under 12
|
10 years
|
|
Incest with child/step-child (aged under 18)b
|
10 years
|
|
Incest with child/step-child (under 18) of de facto
|
10 years
|
|
Culpable driving causing death
|
9 years
|
Application of the baseline sentence when sentencing baseline offences
the period specified as the baseline sentence for the offence is the sentence that the Parliament intends to be the median sentence for sentences imposed for that offence.[216]
Minimum non-parole period proportion
4.27 The baseline sentencing provisions also required a court sentencing a case involving at least one charge of a baseline offence to fix a minimum proportion of the total effective or head sentence as the non-parole period.[217]
First baseline sentencing and ruling
4.28 The first matter to be sentenced under the baseline scheme was the case of R v IRT (‘IRT’).[218]
4.29 The offender was sentenced after pleading guilty to two charges of indecent act with a child under 16[219] and four charges of incest with child/step-child.[220] The victim of the offences was the offender’s daughter. The two charges of indecent act with a child under 16 (charges 1 and 2) were representative charges, relating to three instances of offending and four instances of offending, respectively. The four incest charges (charges 3, 4, 5, and 6) were not representative charges.
Baseline ruling
It must be accepted as a matter of mathematics, that so long as half of all sentences are at or above, and half of all sentences are at or below a particular figure, the distribution of sentences above and below that point do not affect the median. Therefore sentencing in a manner compatible with Parliament’s intention does not require that sentences below the median are scaled in proportion to the baseline sentence.[221]
Director of Public Prosecutions v Walters (A Pseudonym)
4.33 The Director of Public Prosecutions lodged an appeal against the sentence in IRT on the ground that ‘the total effective sentence and non-parole period [were] manifestly inadequate’.[222]
4.35 A majority of the Court of Appeal in Director of Public Prosecutions v Walters (A Pseudonym) found that the baseline sentencing scheme was ‘incapable of being given any practical operation’.[223]
the defect in the legislation is incurable. Parliament did not provide any mechanism for the achievement of the intended future median, and the Court has no authority to create one, as the Director of Public Prosecutions properly conceded. To do so would be to legislate, not to interpret.[224]
Stakeholders’ views
4.38 In the submissions received by the Council, all of the stakeholders that addressed the question of whether to repeal the baseline sentencing scheme stated or implied that it should be repealed.[225]
4.39 Stakeholders considered that the scheme was ‘cumbersome, difficult to apply and ultimately confusing’,[226] ‘flawed, fundamentally, in concept’,[227] ‘worse than flawed, it was fundamentally disingenuous’,[228] that it ‘erodes judicial discretion, leads to the imposition of unjust sentences, contributes to court delay and overly-complicates sentencing’,[229] that it was ‘a flawed guiding mechanism, operating upon a set of questionable numerical sentence reference points’[230] and ‘extremely difficult for lawyers and judges, let alone accused persons to navigate’.[231]
The Council’s view
4.40 In light of the decision in Director of Public Prosecutions v Walters (A Pseudonym),[232] the strong and consistent views of stakeholders, and the Council’s recommendations concerning proposed models of guidance, the Council considers that the baseline sentencing scheme should be repealed in its entirety.
Recommendation 1: Repeal of the baseline sentencing provisions
The baseline sentencing provisions should be repealed in their entirety.
Chapter 5: Offences with sentencing problems requiring guidance
Overview
Initial approach to identifying possible problem offences
Identifying sources of evidence
5.11 After an initial review of the sources of evidence listed in Table 2, the Council identified a number of possible problem offences. These include serious sexual offences, fatal and serious injury offences, high-level drug offences, and aggravated burglary.[233]
Stakeholders’ views on possible problem offences
5.14 A number of submissions suggested that there was insufficient evidence of inconsistency in sentencing approach or lack of public confidence in the criminal justice system for any offence to be considered problematical.[234]
Figure 1: The Council’s process and recommendations – offences for which there is evidence of sentencing problems and their suitability for inclusion in guidance schemes
Initial approach to identifying possible problem offences:
23 possible problem offences, 3 broad possible problem areas – More research needed to identify offences in possible problem areas (family violence, high-level fraud, firearms)
Application of quantitative and qualitative measures to identify offences with sentencing problems requiring guidance:
The Council’s view –
Recommendation 2
Offences for which there is evidence of sentencing problems requiring guidance 12 offences (Chapter 5):
All 12 offences with identified sentencing problems are suitable for guidance under an enhanced guideline judgment scheme (Chapter 6):
Recommendation 12
8 of the 12 offences with identified sentencing problems are suitable for inclusion in the standard sentence scheme (Chapter 7):
Offences for which there is insufficient evidence of sentencing problems warranting guidance (9 offences):
Offences where there is a lack of sentencing data to apply quantitative measures (2 offences):
Table 2: Sources of evidence to identify possible problem offences with regard to the objectives of the terms of reference
|
Relevant objective in terms of reference
|
Problem with sentencing for offences
|
Source of evidence for problem
|
|---|---|---|
|
Promote public confidence in the criminal justice system.
|
Disparity between current sentencing practices and community views.
|
Jury sentencing studies (Tasmania and Victoria).
Community attitudes to offence seriousness (Sentencing Advisory Council). |
|
Current sentencing practices are declared or considered inadequate or there
is a questioning of the adequacy of current sentencing
practices.
|
Court of Appeal commentary.
Introduction of baseline sentencing regime and existence of other legislative mechanisms (such as gross violence scheme). Challenges to current sentencing practices by the Director of Public Prosecutions. |
|
|
Sentencing practices do not reflect the seriousness indicated by the
maximum penalty.
|
Sentencing data comparing current sentencing practices with the maximum
penalty for an offence.
|
|
|
Promote consistency of approach in sentencing.
|
Inconsistency of sentencing approach within the offence with respect to
harm and culpability.
|
Sentencing data comparing sentencing practices with the maximum penalty and
distribution of current sentencing practices for the offence.
Textual analysis of sentencing remarks (some offences). Court of Appeal commentary. |
|
Inconsistency of sentencing approach between offences of similar levels of
harm and culpability.
|
Sentencing data comparing sentencing practices to the maximum penalty and
distribution of current sentencing practices between offences.
Textual analysis of sentencing remarks (some offences). Court of Appeal commentary. |
5.15 Of the submissions that did identify possible problem offences or areas,[235] there was significant overlap with the possible problem offences that the Council initially identified. There was overlap in relation to the following offences:
• sexual offences (rape, both forms of parental incest, and penetrative child sexual offences);[236]
• fatal and serious injury offences (murder, intentionally causing serious injury, and recklessly causing serious injury);[237] and
• drug offences (cultivating a commercial quantity of a narcotic plant).[238]
• sexual penetration with a child 12–16 and sexual penetration with a child 12–16 under care, supervision, or authority;[239]
• manslaughter;[240]
• perverting the course of justice, leaving the scene of an accident, and not rendering assistance;[241] and
• armed robbery.[242]
5.18 In his submission, the Director of Public Prosecutions noted that high-level fraud had ‘concerning sentencing standards’ but that more complete analysis was required.[243]
5.19 In a meeting with the Council, Crown Prosecutors also flagged that firearm offences required examination.[244]
5.20 Another general problem area that featured in submissions and consultations was that of family violence. For example, Crown Prosecutors expressed concerns about the offence of murder when committed in circumstances of family violence.[245] The Victims of Crime Commissioner noted that sentencing for family violence matters are a common area of complaint made by victims to his office, and that this category, along with other crimes involving serious violence, are appropriate for inclusion in sentencing reform.[246] The Commissioner also raised a further specific issue regarding the summary prosecution of common (or unlawful) assault in circumstances of family violence.[247]
5.22 One submission raised a general issue about the sentencing of Aboriginal and Torres Strait Islander peoples (referred to in the submission as ‘First Peoples’). This submission suggested that there was a need for legislated sentencing guidance to ‘promote consistency in sentencing approach, and promote public confidence in the criminal justice system by alleviating the inter-generational incarceration of First Peoples’.[248] In Chapter 6, the Council discusses how an enhanced guideline judgment scheme – as the most effective legislative mechanism for providing sentencing guidance – can address systemic issues raised by stakeholders, such as the sentencing of Aboriginal and Torres Strait Islander peoples (see [6.38]).
5.23 Two submissions suggested introducing mandatory minimum penalties for serious assaults when committed against authorised officers employed by Victorian councils within local government.[249] Mandatory minimum penalties are discussed in Chapter 9 (see [9.28]–[9.63]).
An evidence-based approach to assessing possible problem offences in order to identify sentencing problems
Assessing possible problem offences
Measures for assessing possible problem offences
[Victoria Legal Aid’s] submission prioritises the need for evidence-based decision making. If a new legislative mechanism is to be adopted, there must be a demonstrated need for it: there must be a problem to be fixed, and the solution must be fit for purpose.[250]
Table 3: Possible problem offences identified for review by the Council[251]
|
Category
|
Number of discrete offences
|
Offences
|
|---|---|---|
|
Fatal offences
|
3
|
Murder
Manslaughter Culpable driving causing death |
|
Sexual offences
|
8
|
Rape
Incest with child/step-child Incest with child/step-child (under 18) of de facto Sexual penetration with a child under 12a Sexual penetration with a child 12–16 under care, supervision, or authorityb Sexual penetration with a child 12–16c Indecent act with a child under 16 Persistent sexual abuse of a child under 16 |
|
Serious injury offences
|
3
|
Intentionally causing serious injury
Recklessly causing serious injury Negligently causing serious injury |
|
Drug offences
|
4
|
Trafficking in a large commercial quantity of a drug of
dependence
Trafficking in a commercial quantity of a drug of dependence Cultivating a large commercial quantity of a narcotic plant Cultivating a commercial quantity of a narcotic plant |
|
Other offences
|
5
|
Armed robbery
Aggravated burglary Perverting the course of justice Failure to stop after an accident Failure to render assistance after an accident |
g. Where the objective seriousness of particular conduct has been wrongly categorised or a particular type of sentencing disposition is not ordinarily appropriate.[252]
5.29 The Council has also had regard to the principles enunciated by the New South Wales Sentencing Council in its review of standard non-parole periods.[253] In that review, the New South Wales Sentencing Council recommended eight principles for the inclusion of offences in the standard non-parole period scheme, being whether the offence:
(a) has a significant maximum penalty(b) is triable on indictment only[254](c) involves elements of aggravation
(d) involves a vulnerable victim
(e) involves special risk of serious consequences to the victim and the community
(f) is prevalent
(g) is subject to a pattern of inadequate sentencing, and
(h) is subject to a pattern of inconsistent sentences.[255]
The fact that an offence potentially encompasses a wide range of offending behaviour should be a factor that can be considered in deciding whether to exclude an offence from the [standard non-parole period] scheme.[256]
Table 4: Measures used by the Council to assess possible problem offences for evidence of sentencing problems
|
Subject headings
|
Measures
|
|---|---|
|
Offence characteristics
|
The offence is an indictable offence.
The extent to which the offence is ‘prevalent’. The objective elements of the offence involve a vulnerable victim. The offence is an ‘aggravated offence’. |
|
Problem with sentencing: evidence of a lack of public confidence in
sentencing
|
Evidence from informed and structured consultation of community views on
sentencing/seriousness of the offence.
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences. Parliament’s view of offence seriousness. Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness. Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices. No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning. |
|
Problem with sentencing: evidence of inconsistency of approach
|
Treatment of a category of offenders within an offence category.
Weight given to aggravating and mitigating factors. Categorisation of the objective seriousness of an offence. |
Quantitative measures
• descriptive statistics on immediate custodial sentences;[257]
Qualitative measures
• findings from the Council’s examination of sentencing practices for sexual penetration with a child under 12;[258]
Application of the measures
5.41 Some of the identified measures are consistently present in some offences. For example, sexual offences against children always comprise a special risk of serious consequences to the victim and the community because such offences always involve vulnerable victims and significant and long lasting harm.[259]
Offence characteristics
Indictable nature of the offence
5.44 The categorisation of an offence as indictable, indictable triable summarily, or triable summarily is an indication of parliament’s view of the seriousness of the offence.[260] If an offence is categorised as indictable only, this indicates that all forms of the offence are very serious and it is not appropriate for the offence to be sentenced in the Magistrates’ Court. If an offence is categorised as indictable but triable summarily, this indicates that some forms of the offending are less serious, as parliament considers that some forms of the offence may be appropriately sentenced in the Magistrates’ Court.[261]
5.45 The New South Wales Sentencing Council considered that the categorisation of an offence as ‘triable on indictment only’ is a relevant factor in determining whether to include an offence in the standard non-parole period scheme. This factor was included in the principles that the New South Wales Sentencing Council recommended should apply in deciding whether to include an offence in the scheme.[262] However, the New South Wales Sentencing Council was of the view that ‘the fact that an indictable offence can be tried summarily should not of itself determine whether it should or should not be included in the [standard non-parole period] scheme’.[263]
5.47 Whether an offence is triable on indictment or triable summarily (or both), however, remains relevant in considering which form of guidance will be the most effective in addressing the established sentencing problems for particular offences. Guideline judgments can provide effective guidance to courts in sentencing offences in all courts.[264] The Council’s guiding principles for sentencing contraventions of family violence intervention orders provide another example of how guidance can be given in the summary jurisdiction.[265] Guidance provided by a legislative mechanism in the form of a standard sentence, however, is of less utility for offences sentenced summarily, particularly if the standard sentence is beyond the jurisdictional limit for sentencing in the Magistrates’ Court.[266]
Prevalence
prevalence (whether high or low and however measured) is not necessarily a measure of the potential harm caused by an offence; or of the extent of community concern about its commission; or of the adequacy or consistency of the sentences imposed.[267]
5.50 The Council, however, considers prevalence a relevant factor in assessing possible problem offences. This is because a higher prevalence of an offence may lead to public concerns and may prompt public scrutiny of the way in which the criminal justice system responds to such behaviour. A higher prevalence of an offence may also prompt the courts to consider that there is a greater need to impose a particular sentence for an offence to achieve specific or general deterrence.[268]
5.53 The actual prevalence of sexual offences is not reflected in most measures due to the well-recognised under-reporting of such offences, which can be due to a number of factors.[269] Non-disclosure may particularly occur when the offending takes place in an intra-familial setting, or in other circumstances in which there is continued contact between the offender and the victim, for example, in educational or social settings. The victim or the offender’s partner may also be concerned about the consequences of reporting an offence, for example, the imprisonment of the offender or the removal of the victim from the family.[270]
5.54 There is a high attrition rate of reported sexual offences compared with offences that actually result in prosecution and sentence.[271]
5.55 Additionally, in many cases involving particular sexual offences, the offending behaviour may satisfy the elements of a number of different offences. Charging practices and the nature of the evidence in each case influence the type of offence with which an offender is ultimately charged.[272]
A vulnerable victim
children or people under authority or care, or those with a cognitive impairment or a serious physical disability; or more generally those whose employment exposes them to a special vulnerability, for example, police and emergency service workers, and [specified] other workers[.][273]
5.58 In New South Wales, there are separate standard non-parole periods for offences committed against certain classes of ‘vulnerable’ victims related to the victim’s employment. In Victoria, for the majority of offences,[274] the vulnerability of a victim is an aggravating factor in sentencing under the common law, and it is not specified in legislation as part of the elements of the offence.
The offence is an ‘aggravated’ offence
5.59 This principle also reflects the extent to which the circumstances of aggravation are included in the legislative elements of the offence, that is, where an offence includes elements that may make the offence objectively more serious than a ‘basic’ (or ‘simpliciter’) version of the offence. This is a measure of offence seriousness because the offence is accompanied by a higher maximum penalty, which ‘expresses parliament’s intention that the courts should treat the aggravated form of the offence more seriously’.[275]
Problem with sentencing: evidence of a lack of public confidence
5.60 The New South Wales Sentencing Council included ‘a pattern of inadequate sentences’ as a factor for determining whether an offence should be included in the standard non-parole period scheme. It considered that possible indications of this could include ‘reference to public opinion, views formed by the government or ... the number of successful Crown appeals against sentences imposed for the offence’.[276]
5.61 In considering which measures might provide a measure of public confidence, the Council notes at [1.23], that there are few reliable and robust measures of public confidence in the criminal justice system. Stakeholders expressed concern in relation to the difficulties in defining and measuring public confidence.[277] For example, Victoria Legal Aid submitted:
The concept of ‘public confidence’ is inherently ambiguous and subject to wide and varied interpretation. To be used to justify more restrictive sentencing regimes, a perceived lack of confidence reflected in the tabloid media cannot be sufficient. There must be actual and informed lack of confidence.[278]
5.62 Victoria Legal Aid also submitted that harsher sentencing will not necessarily lead to greater confidence in the criminal justice system.[279]
Evidence from informed structured community consultation: jury sentencing studies
• 44% chose a more severe sentence than the judge.[280]
• 35.9% chose a more severe sentence than the judge.[281]
Evidence from informed structured community consultation: community attitudes to offence seriousness
5.67 In 2012, the Council released the findings of its research using an original methodology to gauge community attitudes to offence seriousness.[282] The Council’s consultation comprised 14 community panels with 244 Victorians[283] using quantitative and qualitative measures that allowed for a structured and deliberative process. The Council developed its methodology after a review of the literature on the measurement and analysis of individual judgments of relative offence seriousness.
5.68 The primary[284] quantitative method used in the panel sessions was ‘coded ranking’,[285] asking participants to indicate how serious they thought offences were by rating or ranking offences using a scale or categories of seriousness.
• There was consensus that offences involving the intentional infliction of death and serious injury and sexual offences against young children are among the most serious.[286]
• The category of ‘sexual offences’ showed the highest level of agreement generally among participants as to the seriousness of the offences.[287]
• Most strikingly, sexual penetration with a child under 12 (25-year maximum penalty) was ranked at level 10 along with intentional murder (maximum penalty of life imprisonment), while rape and intentionally causing serious injury (both of which have 25-year maximum penalties) were ranked as equally serious, at level 9.[288]
5.70 The findings of the Council’s research suggest that harm and culpability characteristics have the most significant influence on the judgment of offence seriousness.[289] The influence of harm and culpability, however, differed according to the type of offence. The most pronounced difference in how such characteristics influenced judgments of offence seriousness was between fatal and serious injury offences and sexual offences. The Council discusses these differences in more detail below in applying measures to possible problem offences.
Special risk of serious consequences to victims and the community and better understanding of such consequences
5.71 The New South Wales Sentencing Council included the special risk of serious consequences to the victim or to the community as a relevant factor for including offences in a standard non-parole period scheme. It determined that the presence of this factor ‘will obviously depend on the nature of the offence and the context within which it is likely to be committed’.[290]
5.72 The Council has identified a related factor from Victorian case law. In Ashdown v The Queen, Redlich JA set out the circumstances in which an appellate court may propose to uplift current sentencing practices.[291] One such circumstance is where ‘there has emerged a better understanding of the consequences for the victim of the offending conduct’.[292]
5.73 The Council has combined these two factors into one measure relating to the consequences of the offending for individual victims and for the community as a whole, and how well these consequences are understood within society (for example, by members of the community, parliament, or the court). This measure includes an assessment of the special nature and significance of the harm inherent in the offending. This measure also includes an assessment of whether there has been any changes or developments in knowledge and understanding about the harms of such offending. This measure is of significant weight in identifying offences that ‘destroy lives and tear at the fabric of our community’.[293]
Parliament’s view of offence seriousness
5.75 Parliament should aim to select a maximum penalty that provides an indication of the relative gravity of the offence compared with other offences, but yet is broad enough to allow the sentencing judge sufficient scope to accommodate the worst examples of the offence that are likely to be encountered.[294]
5.77 Another relevant consideration under this measure is whether the offence has been subject to any other legislative regimes, such as the baseline sentencing scheme discussed in Chapter 4 and the statutory minimum sentences scheme discussed in Chapter 9. The Victims of Crime Commissioner noted this as a relevant consideration in his submission.[295]
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness
5.79 In applying this disparity measure, the Council has had regard to the evidence available from structured and informed community consultation (see [5.64]–[5.70]) as well as stakeholder views conveyed in submissions.[296] The Victims of Crime Commissioner noted in his submission that his office had received numerous grievances and complaints from victims of crime regarding the ‘inadequacy of sentencing practices’. The Commissioner submitted:
Victims of crime do not always want an offender locked away forever, although it is fair to say that some victims do seek that outcome.The main areas of complaint from victims are based on two factors:
ii. That convicted criminals face higher consequences for their actions than they currently face, both as a punishment (as without acceptance of responsibility for their actions they cannot be truly rehabilitated) and as a deterrent to others.[297]
• a guidepost against which to measure current sentencing practices[298] to assess whether there is a disparity between current sentencing practices and the maximum penalty (in accordance with appellate statements about the relevance of the maximum penalty).
5.81 The inclusion of this measure is supported by other stakeholders’ views.[299] The Director of Public Prosecutions’ submission captures what the Council considers the appropriate approach to using the maximum penalty as a measure of assessing possible problems in sentencing offences that may require attention in the form of guidance. The Director submitted:
It is a matter of concern, that excepting murder, that no commonly prosecuted serious offence produces a ‘spread of sentences across the range’ ... Except for manslaughter, all other commonly prosecuted serious offences receive sentences below, or well below 50% of the available maximum in 90% or more of cases. If the maximum penalty is to be given significant weight as a direct (rather than proportional) guide to expected sentence, then all these offences give cause for concern. However, while it is proper to give some weight to this disjunction, I consider that sentencing standards cannot be finally evaluated in this way. Neither parliament nor the courts have yet fixed any proper or binding general relationship between the maximum penalty and the sentence distribution. In order to evaluate the adequacy of sentencing standards it is necessary to have regard to the circumstances of offences and the offenders that actually come before the courts.[300]
5.82 This reflects the Council’s approach to the weight given to the quantitative comparisons of sentencing practices against the maximum penalty for each possible problem offence. Accordingly, it may be expected that the sentences imposed in individual cases will, over a certain period, collectively produce a spread of sentences within the available range under the maximum penalty, rather than a skewed distribution at the bottom of that range. However, ‘a demonstrable disjunction between maximum penalties and the sentences imposed for an offence is not sufficient to establish inadequacy of sentencing practices’.[301]
Court of Appeal: current sentencing practices identified or viewed as inadequate but no change through current guidance mechanisms
5.85 As discussed at [5.28], the Victorian Court of Appeal has set out the circumstances in which an intermediate appellate court may propose to uplift current sentencing practices.[302] The Court of Appeal has done this in relation to a number of offences or sub-categories of offences in recent years.
5.86 The Court of Appeal has found that current sentencing practices are inadequate for ‘confrontational’ aggravated burglary,[303] ‘glassing’ forms of recklessly causing serious injury,[304] and negligently causing serious injury by ‘driving’.[305] The court also declared that sentencing judges should no longer regard themselves as constrained to follow earlier sentencing practice.
importantly, it should not be thought that the statutory requirement to have regard to current sentencing practices forecloses the possibility of an increase or decrease in the level of sentences for particular kinds of offences. Over time, views may change about the length of sentence which should be imposed in particular cases and, when that occurs, the notions of manifest excessiveness and manifest inadequacy will be affected. Accordingly, to say of an individual sentence of six years, or a total effective sentence of 15 years, that it is near as large as any before imposed for offending of this kind, is not necessarily an answer to the question of whether it is manifestly inadequate. One must allow for the possibility that sentences to this point have simply been too low.[306]
Court of Appeal is well placed to comment on the adequacy of current sentencing practices, to determine the extent to which courts should be constrained by current sentencing practices, and to provide guidance as to the type of sentence appropriate in the circumstances.[307]
the prosecution operates as ‘the custodian of sentencing standards in this State ... If current sentencing practices need to change, that is the place to start’.[308]
5.93 The Victims of Crime Commissioner’s submission referred to the former Director of Public Prosecutions’ statement that ‘[i]t is beyond argument that current sentencing practices for some criminal offences are in need of urgent review’.[309]
5.94 The Council has had regard to these Court of Appeal judgments, and where possible has undertaken detailed data analysis in an attempt to determine the effect on current sentencing practices of such declarations and commentary as a source of guidance.[310] For each of the possible problem offences, the Council also examined the following over the five-year reference period:
• the ‘yearly distribution median’, being the median sentence for immediate custodial sentences imposed in each year over the reference period;[311] and
• the ‘cumulative median’[312] sentence length for immediate custodial sentences.
Problem with sentencing: evidence of inconsistency of approach
5.97 Adequacy of outcome, however, is relevant to consistency of approach on the basis that an inadequate sentence may result if a court takes an inconsistent approach to assessing offence seriousness. The outcome is not the only relevant factor in assessing consistency of approach. Further, there may be instances when disparity in outcome is expected, for example, when the offence covers a wide range of behaviour or when it is not a prevalent offence. Therefore, the ‘appearance of disparity’[313] may not necessarily evidence a sentencing problem.
While disparity should remain a factor, care must be taken in using it. Comparison between sentences is only meaningful where there is like offending, which means that attention needs to be given to the facts of each relevant case. We also note that care needs to be taken to ensure that too much weight is not given to mathematical disparity in sentencing statistics alone.[314]
5.99 Stakeholders’ opinions reflected this view, that consistency of sentencing approach extends beyond an assessment of numerical equivalence.[315] Victoria Legal Aid submitted that there is currently a lack of empirical evidence of ‘systemic, unjustifiable disparity in sentencing approach’.[316] The Director of Public Prosecutions’ submission (and some other submissions)[317] echoed this response, stating:
There is little evidence of significant inconsistencies in judges’ approaches to sentencing. On the occasions that judges do depart from the orthodox approach to sentencing, or from the acceptable range of sentencing outcomes, current appeal powers provide an effective remedy. It follows that I do not believe that inconsistency of approach is a substantial problem in Victorian sentencing.[318]
there is no clear evidence of inconsistency of approach in sentencing offenders. The Court of Appeal has over the past decade placed significant emphasis on the role of current sentencing practices when arriving at an appropriate individual sentence. This has led to numerically similar sentences by and large across the range of criminal offences, with like cases being treated alike and different cases being treated differently ... the supposed lack of public confidence in the criminal justice system is by no means confined to a particular category of offence and often is a result of individual reporting on individual cases.[319]
The outcome of discretionary decision making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case.[320]
5.102 The issue of inconsistency of outcome can also arise when a particular judge, over time, adopts an inconsistent approach to sentencing equally culpable offenders.[321] Further, sentencing disparity can arise when judges in the same jurisdiction give effect to differing perceptions of sentencing purposes and legal principles, or overt or subconscious biases.[322] It has not been possible for the Council to examine whether this is a sentencing problem for any of the possible problem offences or in Victorian courts generally.
5.104 Statistical measures of consistency have also been examined in order to establish whether there is evidence of an inconsistent approach in the weight given to particular factors in sentencing. Such an inconsistent approach may result in a narrow distribution of sentences that do not accurately reflect the range of objective seriousness or subjective circumstances. If there is a narrow range of sentences, this could indicate a greater consistency in sentencing (if the gravity of the offence and the circumstances of the case are similar). Alternatively, a narrow range of sentences could be demonstrative of an issue in approach to aggravating and mitigating factors, if similar sentences are imposed on charges of varying seriousness and circumstances. These measures are the interquartile range (IQR) and the median absolute difference (MAD). Both have been used by the Judicial Commission of New South Wales to measure the ‘variability, or spread, of the distribution’.[323] They are as follows:
Treatment of a category of offenders
5.109 Other potential areas where there may be an inappropriate approach include the legislative schemes in the Sentencing Act 1991 (Vic) that apply to particular categories of offenders or to offenders who have committed particular offences, such as the serious sexual offender provisions.[324]
Weight given to aggravating and mitigating factors
5.110 The Sentencing Act 1991 (Vic) includes a non-exhaustive list of considerations that the sentencer must take into account when sentencing an offender.[325] One such consideration is the ‘presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances’.[326] There is no legislated guidance as to the weight that should be given to each factor. This largely depends on the individual circumstances of the case and is left to the discretion of the sentencing judge or magistrate.
5.111 Under the instinctive synthesis approach to sentencing in Victoria (see [2.29]–[2.37]), a court is not required, or permitted, to identify or prescribe the precise weight that has been given to a particular aggravating or mitigating factor in determining sentence.[327] A court may state the factors that it has taken into account; however, as has been said by the Court of Appeal, ‘quantitative significance is not to be assigned to individual considerations’.[328]
5.112 The only limited exceptions to this relate to discounts for undertakings to assist the authorities and the Crown in the prosecution of co-offenders and discounts for guilty pleas.[329] However, even in these cases, Victorian courts have been reluctant to quantify the effect on sentences of such discounts. In cases of assistance to the authorities, the question of whether or not to state the discount depends on the circumstances of the particular case.[330] In relation to discounts for guilty pleas, section 6AAA of the Sentencing Act 1991 (Vic) requires a sentencing judge to state the sentence that would have been imposed but for the plea of guilty.[331]
5.113 Despite the general prohibitions on assigning ‘quantitative significance’, the relevant case law clearly establishes that a primary source of error includes a court giving excessive or insufficient weight to the matters that are required to be taken into account.[332]
Categorisation of the objective offence seriousness of an offence
5.115 Objective offence seriousness is also linked to the concepts of manifest excess or manifest inadequacy in sentence appeals. These grounds exist under the concept of ‘non-specific’ error at common law,[333] whereby a flaw in the exercise of the discretion is inferred from the manifest excess or the manifest inadequacy of the sentence, even if it is not possible to identify the precise source of the error.[334] For a sentence to be manifestly excessive, it is not enough for an appeal court to have itself imposed a different sentence or to think the sentence is too severe,[335] having regard to the permissible sentencing range. Rather, the question is whether the sentence ‘falls within the range of sentences that are appropriate to the objective gravity of the offence and to the matters personal to the offender’.[336]
A global comparison of sentencing for possible problem offences
5.120 Figure 2 shows the distribution of immediate custodial sentence lengths, as a percentage of the maximum penalty, imposed on charges of possible problem offences.[337] The data are displayed as boxplots that show the following:
Figure 2: Distribution of immediate custodial sentence lengths imposed as a percentage of the maximum penalty for each possible problem offence, 2010–11 to 2014–15[338]
|
Offence category
|
Offence name
|
Custodial sentence length (percentage of maximum penalty)
|
||||
|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
||
|
Fatal offences
|
Murder
|
27%
|
45%
|
50%
|
60%
|
100%
|
|
Manslaughter
|
15%
|
30%
|
40%
|
45%
|
65%
|
|
|
Culpable driving causing death
|
13%
|
25%
|
28%
|
35%
|
53%
|
|
|
Sexual offences
|
Sexual penetration with a child 10/12–16
|
1%
|
15%
|
25%
|
30%
|
50%
|
|
Persistent sexual abuse of a child under 16
|
6%
|
22%
|
24%
|
32%
|
48%
|
|
|
Rape
|
2%
|
14%
|
20%
|
24%
|
60%
|
|
|
Sexual penetration with a child 10/12–16 (CSA)
|
2%
|
17%
|
20%
|
27%
|
40%
|
|
|
Incest with own child/step-child
|
3%
|
14%
|
16%
|
20%
|
32%
|
|
|
Sexual penetration with a child under 10/12
|
2%
|
12%
|
16%
|
16%
|
28%
|
|
|
Incest with child/step-child of de facto partner
|
8%
|
11%
|
14%
|
18%
|
28%
|
|
|
Indecent act with a child under 16
|
0%
|
8%
|
10%
|
15%
|
45%
|
|
|
Serious injury offences
|
Negligently causing serious injury
|
5%
|
20%
|
30%
|
50%
|
85%
|
|
Intentionally causing serious injury
|
<1%
|
15%
|
20%
|
25%
|
60%
|
|
|
Recklessly causing serious injury
|
<1%
|
10%
|
15%
|
20%
|
40%
|
|
|
Drug offences
|
Traffick – large commercial quantity (drug of dependence)
|
6%
|
13%
|
18%
|
21%
|
50%
|
|
Cultivate – large commercial quantity (narcotic plant)
|
5%
|
13%
|
17%
|
18%
|
21%
|
|
|
Traffick – commercial quantity (drug of dependence)
|
1%
|
12%
|
16%
|
18%
|
40%
|
|
|
Cultivate – commercial quantity (narcotic plant)
|
1%
|
7%
|
8%
|
10%
|
21%
|
|
|
Other offences
|
Armed robbery
|
<1%
|
8%
|
10%
|
14%
|
57%
|
|
Aggravated burglary
|
<1%
|
6%
|
10%
|
12%
|
36%
|
|
|
Pervert the course of justice
|
<1%
|
3%
|
4%
|
8%
|
32%
|
|
• Sentences imposed for offences in different categories with the same maximum penalty – for example, there are clear differences in the distribution of sentences for offences that have a maximum penalty of life (murder compared with trafficking in a large commercial quantity of a drug of dependence).[339]
5.127 Under the Council’s approach set out at [5.78]–[5.83], however, an analysis of sentencing outcomes using only statistics is not a sufficient source of evidence on its own to establish the existence of sentencing problems requiring legislated guidance. As cautioned by the Director of Public Prosecutions, while ‘aggregate statistics raise alarm bells in respect of a number of offences, I am reluctant to identify sentencing practices as inadequate for any offence without the benefit of a substantial review of cases’.[340] Therefore, this analysis must be supplemented with the additional qualitative measures included in the Council’s evidence-based approach, such as textual analysis of sentencing remarks describing the circumstances of individual cases sentenced in the reference period. The Council has done this to the extent possible within the timeframe for this reference.
The Council’s view: offences for which there is evidence of sentencing problems requiring guidance
Recommendation 2: Offences with identified sentencing problems requiring guidance
From its analysis of quantitative and qualitative measures, the Sentencing Advisory Council has identified the following offences as having sentencing problems that require guidance:
|
Offence
|
Crimes Act 1958 (Vic)
|
|---|---|
|
Intentionally causing serious injury
|
|
|
Recklessly causing serious injury
|
|
|
Negligently causing serious injury
|
|
|
Rape
|
|
|
Incest with child/step-child
|
|
|
Incest with child/step-child (under 18) of de facto
|
|
|
Sexual penetration with a child under 12
|
|
|
Sexual penetration with a child 12–16 under care, supervision, or
authority
|
|
|
Sexual penetration with a child 12–16
|
|
|
Indecent act with a child under 16
|
|
|
Persistent sexual abuse of a child under 16
|
s 47A
|
|
Aggravated burglary
|
Sexual offences
Offence characteristics
5.133 The prevalence of each offence varies, noting the limitations of the prevalence measure discussed at [5.48]–[5.55]. The least prevalent offence is persistent sexual abuse of a child under 16, with 54 charges sentenced in the reference period. This offence is a course of conduct offence comprising specified acts[341] on at least three occasions against a child who is aged under 16 years. Therefore, each of the 54 sentenced charges represents at least three incidents of serious sexual offending constituting the offence. The most prevalent offence is indecent act with a child under 16 (this is also the only offence that is indictable triable summarily). There were 1,589 charges sentenced in the higher courts and 871 charges sentenced in the Magistrates’ Court in the reference period.[342]
Table 5: Offence characteristics for sexual offences that have been identified as possible problem offences
|
Offence
|
Crimes Act 1958 (Vic)
|
Indictable only
|
Prevalence by charges sentenced
|
|---|---|---|---|
|
Rape
|
Yes
|
476
|
|
|
Incest with child/step-child
|
Yes
|
370
|
|
|
Incest with child/step-child (under 18) of de facto
|
Yes
|
108
|
|
|
Sexual penetration with a child under 12
|
Yes
|
202
|
|
|
Sexual penetration with a child 12–16 under care, supervision, or
authority
|
Yes
|
74
|
|
|
Sexual penetration with a child 12–16
|
Yes
|
858
|
|
|
Indecent act with a child under 16
|
No
|
1,589
|
|
|
Persistent sexual abuse of a child under 16
|
s 47A
|
Yes
|
54
|
Problem with sentencing: evidence of a lack of public confidence in sentencing
Community views on offence seriousness and sentencing
5.139 The Council’s research into community attitudes to offence seriousness found that participants generally equated sexual offences, including rape and a range of child sexual offences, with the seriousness of offences involving death, serious injury, and other acts of physical violence. Rather than a sliding scale that differentiated discrete levels of culpability and harm (observed in the ranking of fatal and serious injury offences), there was a clustering of sexual offences in the upper half of the scale around factors representing high levels of both harm and culpability (separate from the consideration of aggravating and mitigating factors).[343] In particular, sexual offending against young children (under the age of 12 years) was viewed as being of the utmost seriousness. This is supported by the following rankings:
• Sexual offences involving eight year old victims[344] were ranked 8 or higher on the scale of offence seriousness.
• Indecent act with a child aged under 16 years (10-year maximum penalty) was ranked 8, at the same level as a range of other serious offences.[345]
5.140 Participants did not necessarily make the same distinctions in seriousness that are reflected in the maximum penalties for sexual offences. The young age of the victim was a clear factor influencing seriousness.[346] Participants did not judge there to be a large differentiation in seriousness based on the type of physical contact, for example, sexual penetration compared with sexual touching. The key factors that influenced judgments of seriousness of child sexual offences were:
5.142 The findings in relation to other serious sexual offences and other serious offences committed with the intention to rape[347] provide clear evidence of how seriously community members view sexual violence generally. In particular, sexual motivation and personal invasion reflected in the objective elements of these offences were judged to be in the upper range of severity. Rape (25-year maximum penalty) was ranked 9, with a high level of agreement.[348] The offender’s intention to rape was highly influential in participants’ rankings as both a harm and a culpability factor.
• In the Tasmanian study, fewer jurors agreed with the judge’s sentencing disposition for sexual offences compared with other offences; 46% of jurors preferred more severe sentences for sexual offences than the sentence imposed by the judge. Jurors were less likely to say that the judge’s sentence in a sexual offence case was ‘very appropriate’ and more likely to say that it was ‘inappropriate’ when compared with jurors in cases involving other offence categories (violence, property, culpable driving, and ‘other’).[349]
• In the Victorian study, half (50%) of jurors in sexual offence trials chose a more lenient sentence than the judge (compared with 71% in violent offence trials). A higher proportion of jurors chose a more severe sentence for sexual assault of a child under 12 (63.2%), compared with sexual assault of a child aged 12 and older (44.1%) and for rape (37.1%). A higher proportion of jurors thought the judge’s sentence was very appropriate in violent and other offence trials combined (61.3%), compared with all sexual offence trials (45.7%). A lower proportion of jurors in trials involving the sexual assault of children aged under 12 years (35.7%) thought the judge’s sentence was very appropriate, compared with jurors in cases involving either rape or the sexual assault of children aged 12 and older (52.8%).[350]
Special risk of serious consequences to victims and the community and better understanding of such consequences
5.146 Broadly, there is now public acknowledgment of the prevalence of child sexual assault and the low rates of reporting of such offending in both familial[351] and institutional contexts.[352] This follows successive years of reform and advocacy, media scrutiny, and open acknowledgment of the prevalence of this harmful behaviour.
5.147 The trauma caused by serious sexual offending against children has only recently been accepted as fact.[353] There is a growing, and now strong, evidence base to demonstrate the long-term harms (psychological and physical) caused to victims, as well as the broader harms caused to family members of victims and the community as a whole (trauma, disruption in education and development, loss of productivity, and possible criminogenic effects).[354] The Victorian Women’s Trust submitted that a sexual offence committed against a child constitutes:
− deep psychological harm which can last a lifetime, affecting the victim’s cultural, social and emotional life as well as their ability to participate successfully in work and civic life.[355]
5.148 Reforms to sexual assault laws and procedure also demonstrate a growing understanding of the impact of court processes on sexual assault complainants and a recognition of the need to reduce re-traumatisation.[356]
5.149 The Council also notes the family violence context within which sexual assault, particularly child sexual assault, frequently occurs.[357] This is inherent for incest offences, which involve sexual offending against a person that is related to the offender due to a parental, step-parent, or de facto relationship.
5.150 The majority of childhood sexual assault involves offenders who are known to the victim,[358] although it is difficult to ascertain precisely what proportion also constitutes family violence (for example, a parent offending against a child or a sibling offending against another sibling). A conservative estimate suggests a proportion of 15% of the general population with rates as high as 20% for female victims.[359] There is evidence[360] that different types of violence may occur simultaneously within a family; intimate partner violence has been found to be ‘a factor in a sizeable proportion of both child sexual and physical abuse cases’.[361]
Parliament’s view of offence seriousness
b. to protect children and persons with a cognitive impairment from sexual exploitation.[362]
e. sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.[363]
5.155 In the past 15 years, increases to the maximum penalty for sexual penetration with a child reflect the changes observed above in relation to community views of offence seriousness.[364] The maximum penalties for the two incest offences were increased from 20 years in 1997.[365]
Table 6: Maximum penalties for sexual offences identified as possible problem offences
|
Offence
|
Maximum penalty
|
|---|---|
|
Rape
|
25 years
|
|
Incest with child/step-child
|
25 years
|
|
Incest with child/step-child (under 18) of de facto
|
25 years
|
|
Sexual penetration with a child under 12
|
25 years
|
|
Persistent sexual abuse of a child under 16
|
25 years
|
|
Sexual penetration with a child aged 12–16 under care, supervision,
or authority
|
15 years
|
|
Sexual penetration with a child 12–16
|
10 years
|
|
Indecent act with a child under 16
|
10 years
|
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness
5.157 The seriousness with which the community and parliament view such serious sexual offences against adults and children is in contrast to the sentencing practices for these offences, which are comparatively low, providing clear evidence of a disparity.[366]
Table 7: Comparison of median sentences imposed for charges of sexual offences identified as possible problem offences, ordered by proportion of sentences equal to or less than 25% of relevant maximum penalty, 2010–11 to 2014–15
|
Offence
|
Maximum penalty
|
% of immediate custodial sentences imposed on charges equal to or less
than 25% of maximum penalty
|
Median (% of maximum penalty)
|
|---|---|---|---|
|
Incest with child/step-child (under 18) of de facto
|
25 years
|
99%
|
3 years and 6 months (14%)
|
|
Sexual penetration with a child under 12
|
25 years
|
98%
|
4 years (16%)
|
|
Indecent act with a child under 16a
|
10 years
|
96%
|
1 year (10%)
|
|
Incest with child/step-child
|
25 years
|
95%
|
4 years (16%)
|
|
Rape
|
25 years
|
79%
|
5 years (20%)
|
|
Sexual penetration with a child 12–16 under care, supervision, or
authority
|
15 years
|
73%
|
3 years (20%)
|
|
Sexual penetration with a child 12–16
|
10 years
|
62%
|
2 years and 6 months (25%)
|
|
Persistent sexual abuse of a child under 16
|
25 years
|
56%
|
6 years (24%)
|
5.160 The Council provides further evidence that sentencing practices for such offending is inadequate in its forthcoming report on sentencing practices for offences of sexual penetration with a child under 12.[367] The Council uses a number of approaches in this report. These include detailed textual analysis of sentencing remarks to examine the differing facts and circumstances of sentenced cases and the extent to which they have been given expression in sentencing outcomes, having regard to the relevant legal framework. The Council’s sample case analysis suggests that – despite sentencing remarks that were highly condemnatory of sexual offending against children – current sentencing practices in the majority of analysed cases showed evidence of inadequacy.[368]
5.162 The Council’s examination of the sentencing practices for sexual penetration with a child under 12 strongly suggests that current sentencing practices for that offence are inadequate. As is discussed below, the Court of Appeal has also commented on current sentencing practices for this offence and raised a question as to their adequacy, but (in the absence of an appropriate appeal) has not declared current sentencing practices to be inadequate. At the time of writing, there has not been any substantial change in sentencing practices to address this problem with sentencing.[369]
Court of Appeal’s approach to addressing inadequacy of current sentencing practices and the effect of any such guidance
• sexual penetration with a child under 10 (as the offence was then known);[370]
• rape;[371]
• persistent sexual abuse of a child under 16;[372] and
• incest (with child/step-child and with child/step-child (under 18) of de facto).[373]
5.165 In the case concerning the offence of sexual penetration with a child under 10 (as it was then known), the inadequacy of current sentencing practices was not argued on appeal, so the case was not considered to be an appropriate ‘vehicle’. However, the Court of Appeal raised inadequacy of sentencing as a question to be addressed if an appropriate ‘vehicle’ arose.[374] The Council’s analysis of published sentence appeals since then suggests that the Director of Public Prosecutions has not lodged an appeal against a sentence for this offence since the decision in this case (in 2009).[375]
5.166 In the case concerning the offence of persistent sexual abuse of a child under 16, the Court of Appeal raised the question of inadequacy, but it rejected the sentencing range submitted by the Crown for the offence as it was not supported by current sentencing practices.[376]
5.167 In relation to the offence of incest, the Director of Public Prosecutions has appealed against a sentence and flagged the issue of adequacy of current sentencing practices as recently as this year. The Court of Appeal has indicated this to be an appropriate case in which to consider whether current sentencing practices are adequate.[377]
5.168 In relation to the offence of rape, the Court of Appeal has made conflicting comments about the adequacy of current sentencing practices. In one judgment, the Court of Appeal indicated that a question of inadequacy arose regarding the sentencing practices for rape (in response to the median sentence of five years).[378] However, an attempt by the Director of Public Prosecutions to argue this on an appeal against sentence in a subsequent case was not successful,[379] and the court did not make a statement that current sentencing practices were inadequate.[380]
5.169 In relation to the offence of indecent act with a child under 16, the Court of Appeal has not directly raised the issue of inadequacy of current sentencing practices. However, it commented that current sentencing practices do not in themselves provide an answer to the question of whether a sentence is manifestly inadequate and that there is a possibility that ‘sentences [for this offence] to this point have simply been too low’.[381]
Problem with sentencing: evidence of inconsistency in sentencing approach
5.175 These can be compared with incest (with child/step-child, and with child/step-child (under 18) of de facto) and sexual penetration with a child under 12[382] with maximum sentences reaching only around 30% of the maximum penalty and medians reaching around 15%. While indecent act with a child under 16 (which has a maximum penalty of 10 years) has a lower median as a proportion of its maximum penalty (10%), the maximum sentence comprises 45% of the 10 years.
5.179 The Council has done such an analysis for sentences imposed for sexual penetration with a child under 12, compared with rape, for its forthcoming report on sentencing practices for the offence of sexual penetration with a child under 12. The analysis shows that, consistent with the distribution of sentences for each offence shown in Figure 3, there was a tighter clustering around the median for sentences imposed on sexual penetration charges than for sentences imposed on rape charges.[383]
Treatment of a category of offenders within an offence category
5.180 The Council’s analysis of sentencing practices for the offence of sexual penetration with a child under 12 compared with the offence of rape suggests that sentences – both singly and in the aggregate – do not sufficiently reflect the objective criminality of the offence in light of all relevant considerations. Sentences also appear to give insufficient effect to the serious sexual offender provisions; the Council’s analysis suggests that the serious sexual offender provisions, though enlivened, were not found to require a disproportionate sentence or additional cumulation.[384]
5.181 It has not been possible to undertake the same detailed textual analysis of sentencing remarks for all of the sexual offences in this category. There is evidence, however, that the approach taken to applying the serious sexual offender provisions may also be a problem in the sentencing of the two most serious incest offences. In a successful sentence appeal by the Director of Public Prosecutions,[385] the Court of Appeal identified an issue regarding the approach taken to the presumption of cumulation under the serious sexual offender provisions for the offence of incest with child/step-child. The same issue will also be considered by the Court of Appeal in an upcoming appeal by the Director of Public Prosecutions against a sentence for incest with child/step-child (under 18) of de facto.[386] By extension, the Council considers that the evidence in relation to the four offences discussed above indicates that there are likely to be similar issues with the approach taken to applying the serious sexual offender provisions in the sentencing of other sexual offences involving children under 16.
Weight given to aggravating and mitigating factors
5.183 The Council’s analysis of sentencing for sexual penetration with a child under 12 compared with rape provides evidence of differences in approach to the identification and weighing of aggravating and mitigating factors relevant to accurate assessments of objective seriousness, offender culpability, and harm caused. This was evidenced, for example, by the failure to discuss or identify a number of other aggravating features in the sexual penetration sample of cases, including offending against a victim in the safety or sanctity of their home, offending against a sleeping victim or one woken from sleep, and use of a sex toy.[387]
• identification of and weight given to aggravating factors, such as use of threats, coercion, or actual force;[388]
5.186 The analysis suggested that the distribution of sentences for this offence observed in Figure 3 may be appropriate with respect to their objective seriousness. The custodial sentences imposed for the offence represent a wider distribution as a proportion of the maximum penalty, and the median represents the highest proportion of the maximum penalty compared with the medians for other sexual offences.[389]
5.187 The analysis, however, also revealed a number of cases in which the offenders were noted to have been in a position of care or supervision over the victim/victims.[390] In such cases, the relationship of care, supervision, or authority was treated as an aggravating factor in sentencing rather than the offender being charged with the aggravated form of the offence (sexual penetration with a child 12–16 under care, supervision, or authority). The Council notes this as a possible source of inconsistency of approach for the two offences.
Figure 3: Distribution of immediate custodial sentence lengths imposed on charges of sexual offences as a percentage of the respective maximum penalty, by offence, 2010–11 to 2014–15
|
Offence name
|
Custodial sentence length (percentage of maximum penalty)
|
||||
|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
|
|
Sexual penetration with a child 12–16
|
1%
|
15%
|
25%
|
30%
|
50%
|
|
Persistent sexual abuse of a child under 16
|
6%
|
22%
|
24%
|
32%
|
48%
|
|
Rape
|
2%
|
14%
|
20%
|
24%
|
60%
|
|
Sexual penetration with a child 12–16 under care, supervision, or
authority
|
2%
|
17%
|
20%
|
27%
|
40%
|
|
Incest with child/step-child
|
3%
|
14%
|
16%
|
20%
|
32%
|
|
Sexual penetration with a child under 12
|
2%
|
12%
|
16%
|
16%
|
28%
|
|
Incest with child/step-child of de facto (under 18)
|
8%
|
11%
|
14%
|
18%
|
28%
|
|
Indecent act with a child under 16
|
<1%
|
8%
|
10%
|
15%
|
45%
|
Categorisation of the objective seriousness of an offence
• a tendency for sexual penetration cases to be characterised as being less ‘violent’ than rape cases, due to a focus on identifying physical violence over and above that inherent in the basic physical element of the offending;[391]
• characterisation of the offender’s behaviour that diminished the offender’s agency and degree of force used.[392]
5.192 Another possible issue is the assessment of harm in sexual penetration cases involving children 12–16 and 12–16 under care, supervision, or authority where the victim is at the older end of the age spectrum. There have been cases where offenders have sought to minimise the harm to the victim or otherwise suggest that the victim was ‘complicit’ in the offending in some way. For example, in one case examined by the Council, the defence submitted that the 14–15 year old victims were willingly engaging in the sexual activity for money.[393]
5.193 In Clarkson v The Queen (‘Clarkson’), the Court of Appeal specifically addressed the question of whether a victim’s consent (meaning agreement or willing cooperation) to sexual activity can be a mitigating factor in sentencing for child sexual offences.[394] In that case, two offenders who had appealed against sentence sought to rely on the victim’s consent to the sexual activity to mitigate the sentence in each of their respective cases. The Court of Appeal held that ‘a child’s consent can never, of itself, be a mitigating factor’.[395]
5.194 The maximum penalties for the two forms of the sexual penetration offence involving children 12–16 are far lower than the maximum penalty for the offence of sexual penetration with a child under 12,[396] suggesting that parliament has assessed these offences as being lower in the offence hierarchy in terms of seriousness.[397] However, it is well established that significant harm flows from these offences, no matter whether the child is younger or older than 12,[398] and no matter whether the child has ‘consented’ to the sexual activity. This is evident from the following statement from the Court of Appeal in Clarkson:
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.[399]
What are the sentencing problems and what form of guidance is needed for sexual offences?
5.197 Further, there is a significant degree of overlap between different sexual offences as a result of charging practices, meaning that not all cases involving the rape[400] of a child under 12 will be charged as a sexual penetration offence. For example, in some instances, it may be charged as rape or incest. Therefore, it is important to include a number of offences to ensure a consistent approach to providing guidance to address the identified sentencing problems.
5.200 The Council is conscious that there are other serious sexual offences in the Crimes Act 1958 (Vic) that may warrant examination;[401] however, it has not been possible to examine all of these within the scope of the reference. It would be necessary to undertake a complete review of sentencing for sexual offences and possible textual analysis of sentencing remarks prior to a wholesale setting of levels for all sexual offences.
• inconsistencies in approach to non-offence specific factors may have broader application across other offences and may indicate a need for general guidance.[402]
Serious injury offences
Offence characteristics
Table 8: Offence characteristics of serious injury offences identified as possible problem offences
|
Offence
|
Crimes Act 1958 (Vic)
|
Indictable only
|
Prevalence by charges sentenced
|
|---|---|---|---|
|
Intentionally causing serious injury
|
Yes
|
504
|
|
|
Recklessly causing serious injury
|
No
|
646
|
|
|
Negligently causing serious injury
|
No
|
197
|
5.207 Intentionally causing serious injury is indictable only, with the reckless and negligent forms of the offence being indictable offences triable summarily.[403]
Problem with sentencing: evidence of a lack of public confidence in sentencing
Community views on offence seriousness and sentencing
5.212 The high ranking of negligently causing serious injury over recklessly causing serious injury can be explained by the case example used to represent negligently causing serious injury. It involved the commission of negligently causing serious injury by driving (with the same mental element as for the culpable driving causing death case example) and resulted in the highest level of harm as the serious injury (a permanent vegetative state). These factors had a strong influence on participants’ judgments that this example of the offence was at the highest level of seriousness.[404]
5.214 Findings from the Tasmanian and Victorian Jury Sentencing Studies show that there was less disparity between jurors’ and judges’ sentencing for violent offences than observed for sexual offences. In the Tasmanian study, 62% of jurors from violence cases thought sentencing for violent offences was too lenient, even though only 49% indicated a more severe sentence than the judge.[405] The Victorian study also indicated that the majority of jurors were more lenient than judges when recommending a sentence for violent and other offences.[406]
Special risk of serious consequences to victims and the community and better understanding of such consequences
5.215 The Council considers there to be some evidence of a change in the level of community understanding of the consequences of serious injury offences, and increasing concern around special risks in some forms of this offending. The Council particularly notes that this is the case in the area of family violence where serious injury is inflicted against partners and children of offenders[407] and in the case of alcohol-fuelled violence.[408] Road trauma – and its effects on victims, offenders, and the community at large – is a major social problem.[409] There have been a number of community education and policing campaigns to increase community awareness regarding harms caused by the road toll and the factors associated with driving fatalities and injuries (see Appendix 5).
Parliament’s view of offence seriousness
Table 9: Maximum penalties for charges of serious injury offences identified as possible problem offences
|
Offence
|
Maximum penalty
|
|---|---|
|
Intentionally causing serious injury
|
20 years
|
|
Recklessly causing serious injury
|
15 years
|
|
Negligently causing serious injury
|
10 years
|
5.217 Some forms of intentionally causing serious injury and recklessly causing serious injury have minimum non-parole periods where such offences are committed in circumstances of ‘gross violence’.[410] This indicates parliamentary concern about a particular class of behaviour captured within these offences. None of the three offences was included as a baseline offence.
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness
Table 10: Comparison of sentences imposed for serious injury offences identified as possible problem offences with maximum penalties, 2010–11 to 2014–15
|
Offence
|
Maximum penalty
|
% of immediate custodial sentences imposed on charges equal to or less
than 25% of maximum penalty
|
Median (% of maximum penalty)
|
|---|---|---|---|
|
Recklessly causing serious injury
|
15 years
|
86%
|
2 years and 3 months (15%)
|
|
Intentionally causing serious injury
|
20 years
|
77%
|
4 years (20%)
|
|
Negligently causing serious injury
|
10 years
|
42%
|
3 years (30%)
|
If it is correct that six years is the top end of the statistical range, then it would seem to me that there is a real question to be investigated, probably on a Director’s appeal, about whether current sentencing practices can be reconciled with the maximum of 15 years. It seems to me that both Parliament – having set the maximum at 15 – and members of the community who were fully apprised of the seriousness of this recidivist offending would be entitled to ask why the top end of the range, statistically speaking, was below 50 per cent of the maximum. They might well ask – in my view, quite reasonably – why very serious offending of this kind does not attract sentences more towards eight, nine or 10 years. They might wonder for what kinds of offending the upper end of the statistical range was reserved if not for a repeat offender who had seriously injured innocent people.[411]
5.223 One such example is demonstrated by the recent case of Kilic v The Queen (‘Kilic’),[412] in which the offender intentionally set alight his pregnant ex-partner, resulting in the infliction of permanent injuries, including the consequential termination of her pregnancy. This case prompted significant community reaction to the reduction in sentence on appeal for such a serious act of violence in such circumstances. This is also in light of the sustained and significant concerns being expressed across the community about the prevalence and impact of family violence. Concerns have also been expressed about the effect that particular legal decisions or practices can have on reinforcing certain community attitudes, for example, violence towards women.[413] Such concerns were also expressed by the Victorian Women’s Trust in relation to sexual offences in its submission to the Council.[414]
Court of Appeal’s approach to addressing inadequacy of current sentencing practices and the effect of any such guidance
• ‘glassing’ forms of recklessly causing serious injury;[415] and
• negligently causing serious injury by ‘driving’.[416]
5.225 Additionally, the court has raised the adequacy of current sentencing practices as a possible issue for intentionally causing serious injury[417] and recklessly causing serious injury.[418]
5.226 In relation to the offence of negligently causing serious injury, the Court of Appeal in Harrison v The Queen (‘Harrison’)[419] held that:
• current sentencing practices for the offence ‘have remained clustered at and under an upper limit of four years’ imprisonment’,[420] rendering them inconsistent with parliament’s intention reflected in an increase in the maximum penalty from 5 to 10 years, and disparate to community expectations of the seriousness of this form of the offence;[421]
• sentences of 6 to 7 years within the 10-year maximum penalty would be well within the upper range of seriousness.[422]
5.227 In the previous case of Gorladenchearau v The Queen, which involved an appeal against sentence for negligently causing serious injury, Maxwell P indicated that sentences ‘well above 50 per cent of the maximum were not uncommon before the maximum was increased’.[423]
Notwithstanding the latitude that must therefore be extended to sentencing judges, particularly when sentencing for an offence falling within the worst category, there is such a disparity between the sentence imposed and current sentencing practice as illustrated by the authorities relied upon by the parties, that we are satisfied that there has been a breach of the underlying sentencing principle of equal justice.[424]
5.229 The court did not make specific comment on the adequacy of current sentencing practices for the offence. However, the case raises issues regarding the adequacy of current sentencing practices for this form of offending and the way in which current sentencing practices constrained the sentence ultimately imposed. The Director of Public Prosecutions has applied to the High Court for special leave to appeal this decision.[425]
5.231 Sufficient time has elapsed following the declaration of inadequacy of current sentencing practices for the glassing form of recklessly causing serious injury in Winch v The Queen (‘Winch’).[426] The Council has analysed data (Appendix 9) in order to determine whether Winch has had an effect on sentencing practices, but it is not clear whether this has occurred. In relation to the declaration of inadequacy for the driving form of negligently causing serious injury, insufficient time has elapsed to determine the influence of Harrison on sentencing practices.
5.233 This may be seen as evidence of a shift to a higher proportion of offenders receiving immediate imprisonment for the glassing form of recklessly causing serious injury, thus addressing the Court of Appeal’s concern with current sentencing practices that saw a high proportion of offenders receiving a wholly suspended sentence for this particularly serious offending. However, this evidence is limited as this shift coincided with the abolition of suspended sentences.[427]
Problem with sentencing: evidence of inconsistency in sentencing approach
Treatment of a category of offenders within an offence category
Weight given to aggravating and mitigating factors
Categorisation of the objective seriousness of an offence
Figure 4: Distribution of immediate custodial sentence lengths imposed on serious injury offences as a percentage of respective maximum penalties, by offence, 2010–11 to 2014–15
|
Offence name
|
Custodial sentence length (percentage of maximum penalty)
|
||||
|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
|
|
Negligently causing serious injury
|
5%
|
20%
|
30%
|
50%
|
85%
|
|
Intentionally causing serious injury
|
<1%
|
15%
|
20%
|
25%
|
60%
|
|
Recklessly causing serious injury
|
<1%
|
10%
|
15%
|
20%
|
40%
|
What are the sentencing problems and what form of guidance is needed for serious injury offences?
Aggravated burglary
Offence characteristics
5.252 Appendix 7 details the offence characteristics for aggravated burglary. Aggravated burglary is an indictable offence that is triable summarily, and it is a prevalent offence: 1,172 charges of aggravated burglary were sentenced in the higher courts in the reference period and a further 1,271 charges were sentenced in the Magistrates’ Court.[428]
5.253 Aggravated burglary does not involve a vulnerable victim in the objective elements of the offence. However, it is an aggravated form of burglary, in recognition of the objectively higher culpability and harm inherent in the commission of a burglary in certain circumstances: when the offender intentionally enters a premises as a trespasser and intends to commit a serious offence[429] involving an assault (including a sexual assault), property damage, or theft, with one of the two following statutory aggravating factors:
• knowing that another person was present or being reckless as to whether or not another person was present.[430]
Problem with sentencing: evidence of a lack of public confidence in sentencing
Community views on offence seriousness and sentencing
5.255 The Council’s community attitudes research included the offence of a sexually motivated aggravated burglary (with an intention to commit the offence of rape armed with a knife and knowing a person was present). This offence was ranked by participants at level 8 (at the same level as serious offences such as manslaughter, culpable driving causing death, and negligently causing serious injury). The intention to rape and the personal invasion were highly influential factors in participants’ rankings; demonstrating the seriousness with which the community views such behaviour, in terms of the high culpability of the offender and the high degree of harm that would be caused to the victim (both immediately and in the long term).[431]
5.256 There is less available evidence on how seriously the community may view different forms of aggravated burglary, for example:[432]
Special risk of serious consequences to victims and the community and better understanding of such consequences
5.257 There has been particular recognition in case law of the vulnerability of some victims of aggravated burglaries where the offence is confrontational, is sexually motivated, or is committed in the context of an intimate relationship.[433]
The harm’s in the violation of what is assumed to be safe space for the person to sleep in ... that’s harm to the community that relies on its homes and its locks and its windows to keep out offenders. And so a harm is done to the general community, the fabric of society, if you will, by these offences.[434]
Parliament’s view of offence seriousness
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 penalty of 25 years imprisonment. The higher penalty recognises that burglary offences are particularly heinous where the safety and liberty of individuals are threatened.[435]
5.261 The Council notes that the Director of Public Prosecutions’ submission raised an issue about the maximum penalty for this offence, saying ‘at 25 years the maximum penalty for aggravated burglary is difficult to justify’.[436] Maximum penalties are discussed in this report at [3.7]–[3.23].
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness
5.267 The Council’s report on current sentencing practices for aggravated burglary, however, found that confrontational aggravated burglary accounted for over half (57.3%) of the aggravated burglary cases in the period examined. There is strong evidence of a disparity between current sentencing practices and other measures of seriousness in relation to the confrontational form of aggravated burglary. This has been the subject of a Court of Appeal declaration of inadequacy of current sentencing practices[437] (discussed below).
Court of Appeal’s approach to addressing inadequacy of current sentencing practices and the effect of any such guidance
5.269 Since 2009, the Court of Appeal has questioned the adequacy of current sentencing practices for this offence in a number of cases.[438]
5.270 In its 2012 decision in Hogarth v The Queen (‘Hogarth’),[439] the Court of Appeal declared that current sentencing practices were inadequate for cases of confrontational aggravated burglary. This decision was followed by Director of Public Prosecutions v Meyers,[440] in which the court suggested that the constraints of current sentencing practices have been removed for all serious forms of the offence.
Problem with sentencing: evidence of inconsistency in sentencing approach
Treatment of a category of offenders within an offence category
5.278 Appendix 7 indicates that there is evidence of an inappropriate approach to the treatment of the category of ‘confrontational’ aggravated burglary and other serious forms of the offence, demonstrated by the Court of Appeal’s declaration of inadequacy of current sentencing practices for that form of the offence. The Council’s research on current sentencing practices for aggravated burglary found that confrontational aggravated burglaries were less likely to receive immediate custodial sentences than other types of aggravated burglaries.[441]
Weight given to aggravating and mitigating factors
5.279 The statistical measures of consistency suggest the possibility of inconsistency of approach. However, it is not clear whether this is related to an inconsistent approach to the weight given to aggravating and mitigating factors or some other inconsistency of approach. The Council’s analysis of current sentencing practices for aggravated burglary found that a number of factors had a statistically significant effect on sentencing outcomes, specifically increasing the likelihood of the offender receiving an immediate custodial sentence,[442] or decreasing the likelihood of the offender receiving an immediate custodial sentence.[443]
5.280 There were a number of factors that were found not to have a significant effect. This may suggest possible issues with the weight given to such factors in light of their stated importance in the sentencing exercise. These factors were the weight given to a plea of guilty, the presence of co-offenders, and mental illness.[444]
Categorisation of the objective seriousness of an offence
What are the sentencing problems and what form of guidance is needed for the offence of aggravated burglary?
The Council’s view: offences for which there is insufficient evidence of sentencing problems requiring guidance
Table 11: Possible problem offences for which there is insufficient evidence of sentencing problems or a lack of data to apply measures
|
Offence
|
Legislation
|
|---|---|
|
Insufficient evidence of sentencing problems after applying measures for
assessing possible problem offences
|
|
|
Murder
|
Crimes Act 1958 (Vic) s 3 (and common law)
|
|
Manslaughter
|
Crimes Act 1958 (Vic) s 5 (and common law)
|
|
Culpable driving causing death
|
Crimes Act 1958 (Vic) s 318
|
|
Trafficking in a large commercial quantity of a drug of dependence
|
|
|
Trafficking in a commercial quantity of a drug of dependence
|
|
|
Cultivating a large commercial quantity of a narcotic plant
|
|
|
Cultivating a commercial quantity of a narcotic plant
|
|
|
Armed robbery
|
Crimes Act 1958 (Vic) s 75A
|
|
Perverting the course of justice
|
Crimes Act 1958 (Vic) s 320 (and common law)
|
|
Lack of quantitative data to apply measures for assessing possible
problem offences
|
|
|
Failure to stop after an accident
|
Road Safety Act 1986 (Vic) s 61
|
|
Failure to render assistance after an accident
|
Road Safety Act 1986 (Vic) s 61
|
Fatal offences
Offence characteristics
Table 12: Offence characteristics for fatal offences identified as possible problem offences
|
Offence
|
Crimes Act 1958 (Vic)
|
Indictable only
|
Prevalence by charges sentenced
|
|---|---|---|---|
|
Murder
|
s 3 (and common law)
|
Yes
|
112
|
|
Manslaughter
|
s 5 (and common law)
|
Yes
|
83
|
|
Culpable driving causing death
|
Yes
|
66
|
Problem with sentencing: evidence of a lack of public confidence in sentencing
Community views on offence seriousness and sentencing
• jurors were more likely to be more lenient than the judge in cases involving property or culpable driving offences (but the number of jurors surveyed following trials involving culpable driving was small).[445]
• culpable driving causing death was ranked 8, with medium to low levels of culpability and high physical harm.[446]
Special risk of serious consequences to victims and the community and better understanding of such consequences
5.294 It is clear that these fatal offences comprise a special risk of harm of the most serious kind and significant consequences for the community, in terms of the devastating effect on primary and secondary victims and the community more broadly. There have been significant changes in the community’s awareness of family violence, and there is significant concern over unlawful killings that occur in the context of family violence or within families. This has included increased public discussion and media commentary on cases involving family violence, for example, intimate partner murders and the murder of children, often in conjunction with suicide by the offender.[447] In addition, the seriousness of deaths caused by culpable driving causing death is well recognised and there continues to be a focus on community education and policing campaigns to reduce the road toll.[448]
Parliament’s view of offence seriousness
5.297 Reflecting growing community concern over the offence of culpable driving causing death, the maximum penalty for the offence was raised from 10 to 15 years in 1992, and then to 20 years in 1997.[449]
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness
• Murder – the median sentence was 20 years, equating to 50% of the maximum penalty.[450] No sentences were imposed at 25% or less of the maximum penalty. The shortest sentence imposed was 10 years and 9 months, and the longest sentences imposed were life imprisonment.
Court of Appeal’s approach to addressing inadequacy of current sentencing practices and the effect of any such guidance
murder of domestic partners raise an important question as to whether current sentencing practices adequately reflect the seriousness with which such cases generally ought to be viewed ... it might be queried whether, generally speaking the ‘tariff’ for such killings is not too low.[451]
Problem with sentencing: evidence of inconsistency in sentencing approach
5.302 There is little evidence of inconsistency of approach to sentencing for murder judging from qualitative measures. The Council examined the cases in which offenders were sentenced to a head sentence of life imprisonment for murder[452] within the reference period (regardless of whether or not a non-parole period was fixed). This indicated that offences and offenders who are assessed as being in the worst category of offence seriousness are sentenced consistent with parliament’s view of the seriousness of the offence, as signalled by the maximum penalty.
5.303 The Court of Appeal has noted the difficulty in distinguishing between levels of culpability in the four different forms of the offence of culpable driving causing death.[453] This suggests that sentencing outcomes for this offence are a product of a wide range of offending and offender circumstances inherent in the offence. Textual analysis of sentencing remarks from the Council’s current sentencing practices report on serious driving offences indicates that such factors can include:
• the death involves the offenders’ friend or family member.[454]
5.304 In its submission, the Criminal Bar Association of Victoria also noted that culpable driving causing death was a difficult offence on which to provide guidance, ‘given the infinite variety of circumstances capable of comprising the offence and the irrelevance, generally, of the antecedents of the offender in the commission of the offence’.[455] The Criminal Bar Association of Victoria submitted that this rendered the offence the least suitable to legislated guidance (in the form of a standard non-parole period).[456]
• voluntary or ‘suicide pact’ manslaughter;[457]
• involuntary manslaughter by an ‘unlawful and dangerous act’;[458] and
• involuntary manslaughter by ‘negligence’.[459]
5.306 The gravity of the offence of manslaughter therefore varies significantly.[460] Consequently, it may be expected that there would be a wide range of sentences imposed under the broad offence of manslaughter, as is demonstrated by the distribution of immediate custodial sentences for manslaughter in Figure 2.
Drug offences
Offence characteristics
5.309 The commercial quantity forms of both offences were most prevalent (although some of these cases involved large commercial quantities).[461] The two offences relating to cultivation of narcotic plants encompass a wide range of offending conduct and offender roles, from ‘house-sitters’ to ‘principals’ of large cultivation enterprises.[462] ‘Cultivate’ is defined broadly.[463] Similarly, the two offences of trafficking in a drug of dependence apply to offenders sentenced at varying levels of the offender hierarchy, from ‘mere couriers’ to principals of large drug enterprises.[464] The very limited prevalence of cultivating a large commercial quantity of narcotic plants limits the findings that can be made on this offence.
5.310 The Drugs, Poisons and Controlled Substances Act 1981 (Vic) codifies the amount of the drug trafficked or cultivated as a circumstance of aggravation in different forms of the offence, accompanied by an increased maximum penalty. Trafficking in a commercial quantity of a drug of dependence attracts a maximum penalty of 25 years’ imprisonment, whereas trafficking in a large commercial quantity attracts a maximum sentence of life imprisonment.[465]
Table 13: Offence characteristics of drug offences identified as possible problem offences
|
Offence
|
Indictable
|
Prevalence by charges sentenced
|
|
|---|---|---|---|
|
Trafficking in a large commercial quantity of a drug of dependence
|
Yes
|
75
|
|
|
Trafficking in a commercial quantity of a drug of dependence
|
Yes
|
186
|
|
|
Cultivating a large commercial quantity of a narcotic plant
|
Yes
|
4
|
|
|
Cultivating a commercial quantity of a narcotic plant
|
Yes
|
447
|
Problem with sentencing: evidence of a lack of public confidence in sentencing
Community views on offence seriousness and sentencing
5.311 The Tasmanian Jury Sentencing Study sought jurors’ opinions on the sentencing for drug offences. The study found that when jurors were asked to impose a sentence following a trial involving a drug offence, the results were evenly split: 49% of jurors in trials involving drug offences imposed a sentence that was less severe than the judge’s, and 50% of jurors imposed a more severe sentence than the judge’s. However, as was observed in relation to sentences imposed for sexual offences, jurors were less satisfied with the sentences actually imposed by judges for drug offences. Jurors were less likely to say that the sentences for drug offences were ‘very appropriate’ and more likely to say that sentences were ‘inappropriate’ when compared with other offence categories (violence, property, culpable driving, and other offences).[466]
5.312 Due to low numbers, the Victorian study did not draw any conclusions in relation to drug offences.[467]
5.314 A consensus on the seriousness of drug offences did not emerge from the findings. The mean rankings for drug offences tended to be lower than for offences that involved direct harm or the risk of harm to a person. However, there were clear differences of opinion among participants. Key factors that affected some participants’ judgments of seriousness were the drug amount and the drug type as these were relevant to participants’ assessments of the potential and severity of broader societal harms flowing from the offence. For other participants, these factors were irrelevant and the intention to traffick drugs was the key factor influencing offence seriousness.[468]
Special risk of serious consequences to victims and the community and better understanding of such consequences
Parliament’s view of offence seriousness
• The Act also establishes a new offence of supplying a drug of dependence to a child at or near a school for the purpose of the child either supplying the drug to someone else or using the drug. The penalty is a maximum term of imprisonment of 20 years or a fine of up to 1,600 penalty units, or both. The Act will come into operation on 20 October 2016 (if not proclaimed earlier).[469]
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness
• Cultivating a large commercial quantity of a narcotic plant – it is difficult to draw conclusions on disparity between the seriousness of the offence (as signaled by the maximum penalty of life imprisonment) and current sentencing practices for this offence, due to the very limited sample size (only four charges within the reference period). Nevertheless, the median sentence for the offence was 6 years and 9 months, which amounts to 17% of the maximum penalty.[470] The lowest sentence imposed was 2 years, and the highest sentence imposed was 8 years and 6 months. These are all less than 25% of the maximum penalty.
Court of Appeal’s approach to addressing inadequacy of current sentencing practices and the effect of any such guidance
• cultivating a commercial quantity of a narcotic plant;[471] and
• cultivating a large commercial quantity of a narcotic plant.[472]
The maximum penalty of life imprisonment and 5,000 penalty units for the offence of cultivating a large commercial quantity of drugs and the offence of trafficking a large commercial quantity of drugs clearly reflects the Parliament’s view that these are serious crimes and that those who commit them should receive a substantial term of imprisonment. As in this case, these offences usually involve highly organised, well resourced and sophisticated operations. While recognising that the circumstances of each offender are unique and that sentencing considerations must be applied in the light of the facts of each case, it seems to me that a median term of imprisonment in the vicinity of six years and six months for cultivating or trafficking a large commercial quantity of drugs does not adequately reflect the seriousness of these offences.[473]
5.327 At the time of writing, the Court of Appeal has been invited to consider the adequacy of current sentencing practices for the offence of cultivating a commercial quantity of a narcotic plant pursuant to the appeal of Nam Son Nguyen v The Queen.[474]
Problem with sentencing: evidence of inconsistency in sentencing approach
5.329 In order to examine whether there was an inconsistency of approach to sentencing under the three relevant inconsistency measures, the Council analysed a sample of sentencing remarks on each of the four drug offences from five points along the sentencing range. As a general rule, a minimum sample of five cases were examined for each offence as follows:[475]
5.331 The Council drew the following factors from the cases: plea, place in offender hierarchy, quantity of drug, type of drug, period over which offending occurred, presence of mitigating factors (such as the applicability of Verdins principles,[476] the presence of drug addiction, or illness), cooperation with authorities, prior offences, and the court’s assessment of the offender’s prospects of rehabilitation.
• The low number of sentenced charges of cultivating a large commercial quantity of a narcotic plant makes it difficult to draw any conclusions about the distribution of sentences for this offence. However, analysis of the sentencing remarks suggests that the offenders’ roles in this offence correlate with the roles and sentences for trafficking in a large commercial quantity of a drug of dependence. That is to say, the offender sentenced to 8 years and 6 months for trafficking in a large commercial quantity of a drug of dependence (described as a ‘wholesaler’)[477] was roughly at the same level as the offender sentenced to 8 years and 6 months for cultivating a large commercial quantity of a narcotic plant (described as ‘an overseer’ or ‘manager’).[478]
• Many of the offenders sentenced for the cultivation offences were facing deportation upon completion of their sentence. The likelihood of deportation upon completion of sentence is not a relevant consideration for a court in fixing sentence.[479] However, the factors that often coincide with the lack of resident status (such as a lack of family support in Australia, limited English skills, and consequential isolation in prison) did seem to be present in a number of the cases examined. Further, many of these offenders had extremely impoverished backgrounds, which acted to mitigate sentence.[480] The inevitability of deportation was also noted in some cases to moderate the need for specific deterrence.[481]
5.335 There is some evidence that there have been differences in approach to the assessment of the seriousness of these offences in comparison with other offences attracting the same maximum penalties. In particular, in the appeal in Nam Son Nguyen v The Queen[482] – expected to be heard in 2016 – an issue has been raised regarding the assessment of objective offence seriousness for offenders at higher levels of the offender hierarchy (above the level of ‘crop sitter’) and current sentencing practices.
5.336 Analysis of the cases (albeit of a limited sample),[483] however, suggests that, broadly speaking, the median sentences are influenced by the categories of offenders within the offence categories. That is to say, the (relatively) low median sentences for these offences appear to be a product of larger numbers of offenders who have an offence at the lower end of objective seriousness in relation to culpability (due to the offenders’ lower role in the drug operation) and who present with significant mitigating factors.
Other offences
Armed robbery
5.340 The Council’s research on community attitudes to offence seriousness provides some evidence of how the community views this offence. It was considered to be relatively serious, ranked 7, but it was not at the upper end of the scale of offence seriousness. Further, there was a low level of agreement on the seriousness of this offence, although participants who thought this offence was higher in seriousness did cite the high culpability and harms inherent in the offence of armed robbery.[484] The Council is of the view that more research is required on community views on this offence and its sentencing.
Perverting the course of justice
5.343 Perverting the course of justice is a common law offence with a maximum penalty of 25 years’ imprisonment.[485] Both perverting the course of justice and attempting to pervert the course of justice carry the same maximum penalty of 25 years and are treated as the same (that is, attempting to pervert the course of justice is a substantive offence, not an inchoate offence).
• the acts represent an actual or potential interference with the course of public justice.[486]
the offence of an attempt to pervert the course of justice is an interference with the due exercise of jurisdiction by courts and other competent judicial authorities. As the courts exercise their necessary and salutary jurisdiction to hear and determine charges of offences against the criminal law only when their jurisdiction is invoked, an act which has a tendency to deflect the police from invoking that jurisdiction when it is their duty to do so is an act which tends to pervert the course of justice.[487]
5.348 In reference to the high maximum penalty for perverting the course of justice, the Court of Appeal warned in 2005 that ‘in some cases, the maximum is of less utility than might otherwise be the case’[488] and that in that case ‘rather than assisting the sentencing task a very high maximum sentence provides little guidance to the sentencing judge’.[489]
5.351 The Council is of the view, however, that further consideration could be given to the recommendations of the Victorian Parliament Law Reform Committee’s report entitled Administration of Justice Offences, which, among other things, recommended new offences for the misuse of evidence, and deceiving, corrupting, or threatening witnesses.[490] This would narrow the scope of perverting the course of justice and bring Victoria in line with other jurisdictions and the Model Criminal Code.
• move towards a harmonisation of the laws in this area nationally.[491]
5.353 Even with this reduction in the maximum penalty, Victoria would continue to have the highest maximum penalty for perverting the course of justice in Australia.[492]
Other offences with a lack of sentencing data: road safety offences
5.354 Failure to stop after an accident and failure to render assistance after an accident both attract a maximum penalty of 10 years’ imprisonment or a fine of 1,200 penalty units.[493] They are indictable offences triable summarily.
5.358 Therefore, section 61 includes three different groups of offences in terms of maximum penalty. The first form of offending – failure to stop after an accident and failure to render assistance after an accident when a person is killed or injured – was the offence raised as a possible problem offence in a submission.[494]
5.362 The lack of data means that it has not been possible for the Council to properly analyse current sentencing practices for these offences and to undertake its principled approach to assessing the evidence of sentencing problems. The Council acknowledges that there are concerns about the sentencing of these offences, as expressed in the submission about a particular case involving these offences.[495] The Council is of the view that work needs to be done to improve the consistency of practices for the charging of, and recording outcomes for, these offences.
What further evidence is needed?
5.368 In particular, the Council strongly supports further work in relation to family violence matters, in light of the reforms that will be made following the release of the report[496] of the Royal Commission into Family Violence on 30 March 2016. The Commission makes 227 recommendations for long-term reforms in all aspects of family violence. Of particular significance is the Commission’s recommendation that ‘[t]he Director of Public Prosecutions consider identifying a suitable case in which to seek a guideline judgment from the Court of Appeal on sentencing for family violence offences [within two years]’.[497]
Chapter 6: An enhanced guideline judgment scheme
Overview
Existing guideline judgment framework
6.5 Guideline judgments are a mechanism for the courts to provide broad sentencing guidance beyond the facts of a particular case. The Court of Appeal has had the explicit power to deliver guideline judgments since 2004, under Part 2AA of the Sentencing Act 1991 (Vic).[498] Guideline judgments provide for ‘guidelines to be taken into account by courts in sentencing offenders’.[499] They can apply generally, to a particular or class of court, offence or penalty, or to a particular class of offender.
6.6 Guideline judgments were introduced in Victoria as a ‘mechanism to promote greater consistency of approach in sentencing’.[500] They were intended to ‘provide an opportunity for appeal judges to share their collective experience with primary judges and articulate unifying principles to guide the exercise of judicial discretion’.[501] Importantly, guideline judgments were envisioned as allowing ‘an appropriate balance to be struck between the broad discretion of the judiciary to take the individual circumstances of each case into account and the desirability of consistency in sentencing’.[502]
guideline judgments should now be recognised in New South Wales as having a useful role to play in ensuring that an appropriate balance exists between the broad discretion that must be retained to ensure that justice is done in each individual case, on the one hand, and the desirability of consistency in sentencing and the maintenance of public confidence in sentences actually imposed, and in the judiciary as a whole, on the other.[503]
6.8 Spigelman CJ highlighted that guideline judgments should be treated as ‘a relevant indicator, much as trial judges have always regarded statutory maximum penalties as an indicator’.[504] Spigelman CJ went on to comment that sentencing guidelines are preferable to statutory guidelines because of their flexibility in relation to individual cases. Further, he stated that ‘[g]uideline judgments are a mechanism for structuring discretion, rather than restricting discretion’.[505]
6.9 In subsequent interpretation of guideline judgments in New South Wales, there has been a focus on the guidelines operating as a ‘guide’ or ‘check’, involving broad discretion.[506] They do not operate as a ‘tramline’[507] or ‘straight jacket’[508] to impermissibly confine discretion, and they should operate as a reference point rather than a starting point.[509] Further, the characteristics of a typical case set out in guidelines do not represent a checklist of factors, ‘the presence or absence of characteristics having some mathematical relationship with the sentence to be imposed’,[510] but rather they operate as illustrative factors.[511]
Benefits of guideline judgments
• may improve deterrence as the transparency of sentencing is increased.[512]
6.12 Guideline judgments are also an important avenue to engage with public opinion and demonstrate ‘a willingness to be accountable, open and responsive’.[513] To this end, the development of guideline judgments by the courts in Australia has been described as ‘the most spectacularly proactive approach to promoting public understanding of sentencing and improving public confidence in criminal justice’.[514]
6.13 As noted by Spigelman CJ, ‘[t]he courts must show that they are responsive to public criticism of the outcome of sentencing processes’.[515] This does not mean that sentences themselves need to be reactive, but rather guideline judgments provide a useful avenue for addressing public criticism and can serve an educative role that may also assist in building community confidence in the criminal justice system. Similarly, the Law Institute of Victoria noted in its submission that guideline judgments have been praised ‘not for redressing an actual consistency problem, but for redressing the public’s impression of one’.[516]
6.14 For example, the guideline judgment in Boulton v The Queen[517] (‘Boulton’) enabled the Court of Appeal to articulate the punitive nature of community correction orders (CCOs) as a sentencing option, which assisted both those considering whether to sentence a person to a CCO and the general public in understanding the purpose of CCOs. There is significant room for this educative function to be extended to the offences identified as having sentencing problems, including articulation of the sentencing options and ranges appropriate in representative cases and the approach that should be taken towards aggravating and mitigating factors in certain offence categories.
• guideline judgments can articulate ‘highly influential normative statements’ and provide practical assistance to the lower courts because they can be delivered outside of the facts of a specific case.[518]
By structuring rather than limiting discretion, guideline judgments strike an appropriate balance between consistency in sentencing and the need to have regard to the individual circumstances of a case....
By enhancing transparency, consistency and clarity in sentencing approach, guidelines can promote understanding and community confidence, which can serve to benefit the interests of the community.[519]
6.19 Youthlaw noted in its submission that it was supportive of ‘guidance options that assist judges in exercising their discretion’ and that it endorsed Victoria Legal Aid’s submission in support of guideline judgments.[520] Similarly, the Law Institute of Victoria recognised that ‘guideline judgments have the ability to promote consistency and public confidence in the sentencing process and also facilitate the development of coherent sentencing practices’.[521]
6.20 As noted in Fox and Freiberg’s Sentencing, consistency of approach supports public confidence in the criminal justice system by counteracting concerns that ‘sentencing is determined by idiosyncratic judging’.[522] Guideline judgments can also assist judges in other ways that promote public confidence, including:
by [providing] clarity regarding how judges come to their decisions, by [providing] greater specificity regarding the specific weight given to particular factors, by giving reasons for their decisions, and by [providing] transparency and honesty generally in the decision-making process.[523]
Recommendation 3: An enhanced guideline judgment scheme
The existing guideline judgment scheme should be enhanced to provide the most appropriate form of sentencing guidance in order to:
Effect of guideline judgments on sentencing practices
6.22 Since the delivery of Victoria’s only guideline judgment, which provided guidance on the sentencing option of CCOs, judges have embraced the option of combining a CCO with a short term of imprisonment, and have clearly tended to prefer this option over imprisonment with a non-parole period.[524] This is most likely due to a combination of factors, including the legislative expansion of this option, the abolition of suspended sentences, and changes in the operation of the parole system, as well as the clear articulation of the punitive aspects of CCOs in the guideline judgment. It has been cited extensively, with over 170 cases citing Boulton in the 15 months since its delivery.
Effect of guideline judgment on sentencing for prescribed concentration of alcohol offences
6.24 Two studies on the effect of the guideline judgment on sentences for high-range prescribed concentration of alcohol (PCA) driving offences have found that the guideline judgment delivered on application by the New South Wales Attorney General[525] increased the severity of sentences and consistency of the use of sentencing options between courts.
6.25 The 2005 Judicial Commission of New South Wales study (based on December 2004 data) found that there had been a ‘dramatic reduction’ in the use of section 10 orders,[526] from 10.3% of high-range PCA offences in 2003 to 2.2% of offences after the guideline judgment.[527] Additionally, the proportion of drivers that were disqualified from driving and the periods that drivers were disqualified increased accordingly. This increase in severity had flow-on effects to other PCA offences. The study also found that there was more uniformity in the use of section 10 orders and the length of disqualification periods across courts. However, there was a slight increase in the number of appeals on severity of sentence and the success rate of these appeals increased where full-time imprisonment had been imposed at first instance.
6.26 A 2008 study by the New South Wales Bureau of Crime Statistics and Research (based on September 2006 data) found similar results, with the reduction in section 10 orders corresponding with an increase in the use of bonds, community service orders, suspended prison sentences, home detention, and prison sentences.[528] Importantly, it found that the disparity in the use of section 10 orders across all courts reduced significantly.[529]
6.27 The most recent sentencing snapshot of drink driving sentences indicates that section 10 orders were used in 2.1% of high-range PCA offences in 2009 and 2010.[530]
Effect of guideline judgment on sentencing for armed robbery
6.28 The Judicial Commission of New South Wales has also published research on sentencing for armed robbery since the guideline judgment in R v Henry (‘Henry’). This guideline was handed down due to statistical evidence that suggested ‘both inconsistency in sentencing practice and systematic excessive leniency in the level of sentences’ for armed robbery and robbery in the company of another person.[531]
6.29 According to a 2003 analysis of sentencing trends before and after Henry, the use of full-time custodial sentences increased from 81% of cases to 85.2% of cases, while the use of community service orders reduced from 7.2% to 2.8%. The use of bonds dropped from 4.3% to 2.1%.[532] In addition, the distribution of sentence length for full-time custodial sentences pre- and post-Henry indicated an increase in the severity of penalties. However, there was no significant change recorded in regard to the relationship between sentences and the statutory maximum penalty.
6.30 A 2007 study on the use of the robbery guideline judgment by the higher courts in New South Wales from May 1999 to May 2005 found that 83.9% of armed robbery or robbery in company cases received full-time custodial sentences.[533] Between the two studies, the use of suspended sentences (reintroduced in 2001 after Henry) increased from 4.2% to 7.1%.[534]
Benefits of an enhanced guideline judgment scheme
6.36 A guideline judgment on a category of offence, such as major driving offences, for example, would allow the Court of Appeal to provide guidance on what may be considered appropriate sentencing practices for a number of offences that are inter-related and form a hierarchy. Such holistic guidance would overcome the current problem whereby a declaration from the Court of Appeal that current sentencing practices are inadequate for one offence (such as negligently causing serious injury by driving)[535] does not provide any specific guidance on the adequacy or inadequacy of sentencing practices for associated offences (such as dangerous driving causing serious injury).
6.38 Significantly, guideline judgments have the capacity to address more systemic issues. For example, one submission[536] received by the Council highlighted a need for guidance on the sentencing of Aboriginal and Torres Strait Islander peoples (referred to in the submission as ‘First Peoples’), in response to the High Court’s decision in Bugmy v The Queen.[537] Others raised concerns about the sentencing of high-level fraud,[538] firearms offences,[539] and assaults against council workers.[540] Further evidence of systemic problems in relation to these concerns may properly form the basis of an application for a guideline judgment.
6.39 Similarly, following significant developments in the criminal justice system directed at recognising the harm caused by family violence, it may be considered appropriate for the Court of Appeal to provide guidance on how considerations of family violence are to be incorporated into the sentencing exercise.[541] This may be particularly useful in relation to decisions in the Magistrates’ Court, where family violence matters are frequently sentenced and where the scope for unjustified disparity is wide. Such guidance could be similar to the guiding principles on sentencing range and the appropriateness of particular sanctions prepared by the Council in 2009.[542]
both because of the potential need for sentencing practices to more uniformly reflect recent learnings and best practice in family violence jurisprudence, and because a guideline judgment has the capacity to effect change without placing undue limitations on judicial discretion.[543]
Current issues with guideline judgments
6.44 Most Australian jurisdictions have been resistant to the delivery of guideline judgments. This is for a number of reasons, but primarily due to concerns that guidelines would not be able to accommodate the wide variety of individual factors in a case and that sentencing discretion would be ‘unduly restricted’.[544] This reluctance has also been reinforced by the High Court’s criticisms of overly prescriptive guideline judgments.[545]
6.45 This resistance has meant that court-made guidance in Australia has been limited. The nature of guideline judgments and their reliance on an appropriate case or application have led to the situation where, in practice, guideline judgments are not providing comprehensive guidance.[546]
Limited use of guideline judgments in Australia
6.46 Most Australian jurisdictions have legislatively provided the power to give guideline judgments to their courts of appeal (including Victoria, New South Wales, Queensland, South Australia, and Western Australia),[547] although only New South Wales and Victoria have exercised this power in a formal capacity.
New South Wales
• dangerous driving in 1998;[548]
• armed robbery in 1999;[549]
• break, enter, and steal in 1999;[550]
• drug importation in 1999 (later overruled by the High Court);[551]
• guilty pleas in 2000;[552]
• a reformulation of the dangerous driving guideline,[553] and a guideline on taking into account further offences, both in 2002;[554] and
• high-range drink-driving in 2004.[555]
6.48 Four of these were initiated after submissions from the New South Wales Director of Public Prosecutions, two were on application from the New South Wales Attorney General, and two were on the court’s own motion.[556]
6.49 One of these submissions from the New South Wales Director of Public Prosecutions was combined with an Attorney General application for a guideline judgment and was heard with four appeals.[557] A further Attorney General application was made for a guideline judgment for sexual assault in 2001, but the application was withdrawn in 2002, and general legislation prescribing the factors a court must take into account was introduced instead.[558]
6.50 Many commentators associate the decline in guideline judgments with uncertainty caused by the High Court’s ruling in Wong v The Queen (‘Wong’)[559] in 2001 and the introduction of a standard non-parole period scheme for most serious offences in New South Wales in 2003.[560] This decline in guideline judgments has occurred even though the then Attorney General intended the standard non-parole period scheme to operate alongside guideline judgments. In the Second Reading Speech for the new scheme, the then Attorney General stated that the New South Wales Government would ‘continue to support the use of guideline judgments given by the Court of Criminal Appeal’ and that ‘[g]uideline judgments are another extremely useful tool in achieving consistency in sentencing and in taking into account community expectations as to the appropriate penalty to be imposed’.[561]
South Australia
6.51 The South Australian Court of Criminal Appeal has expressed a preference for guidance in the form of sentencing ‘standards’. The introduction of statutory powers to deliver guideline judgments was treated by the South Australian Court as ‘endorsing the Court’s existing practice’, as well as clearing up any doubts cast on those practices by the High Court’s decision in Wong.[562]
6.52 Sentencing standards are not binding, and they do not require ‘a mechanical approach or an approach inappropriately fettered by the standard’.[563] Rather, ‘the guidance given is in terms of sentencing principles to be applied, and the sentencing range that can be expected for certain types of case’.[564] Sentencing standards operate as ‘general guides to those who have to sentence in the future, with certain tolerances built into or implied by the range to cater for particular cases’.[565]
6.53 At their core, sentencing standards aim to achieve consistency within an individualised system. In Police v Cadd it was recognised that it was the responsibility of the court to ensure that errors of principle were not made, and that excessive or inadequate sentences were not handed down.[566] However, consistency could be achieved ‘by establishing standards of sentencing for particular offences’ including ‘indicating an appropriate sentence range for a particular offence or offences of a particular type’:[567]
Establishing appropriate standards also tends to ensure that there is such consistency of approach as is achievable in a system in which the appropriate sentence depends upon, in part, the circumstances of the individual case and of the individual offender, and a system in which sentencing is as individualised as it is in our system.[568]
6.54 The South Australian Court of Criminal Appeal has declined to provide sentencing standards for certain offences, such as manslaughter and assault, but has considered standards appropriate for other offences including some drug offences and armed robbery.[569]
6.55 These sentencing standards have also been recognised by the South Australian Parliament. For example, a starting point and associated sentencing standards were handed down in R v D[570] for unlawful sexual intercourse with a child under 12. Reference to this case was inserted into the Criminal Law (Sentencing Act) 1988 (SA) to codify the consideration of the new standard and extend its application retrospectively.[571]
6.56 The first application for a guideline judgment in South Australia came in 2004 from the South Australian Director of Public Prosecutions, for the offence of causing death by dangerous driving.[572] However, the South Australian Court of Criminal Appeal held that no case had been made that a guideline was required to increase the level of punishment for that offence, or that there was unacceptable variation in the sentences being delivered.[573] The court also did not consider that it should:
emphasise the appropriate level of penalty for an ordinary or typical case, and should identify the factors of aggravation that might lead to a higher penalty, and matters of mitigation that might lead to a lesser penalty, with a view to improving community understanding of the process.[574]
Western Australia
6.58 In Western Australia, some cases have been reported as guideline judgments in the headnote to the case, although without discussion of this in the body of the judgment.[575] With a lack of substantive legislative provision for guideline judgments in Western Australia, they are more akin to the sentencing standards employed in South Australia than the formal application and submission mechanisms utilised in New South Wales and Victoria.[576]
the guidelines should say that a sentencing court should not suspend a sentence of imprisonment except in an exceptional case where the need for punishment and general deterrence by way of immediate service of a sentence of imprisonment was overridden.[577]
6.61 Murray J, however, did not ‘think it to be correct for the court to issue a guideline judgment in such terms’.[578] Similarly, Malcolm CJ did not think the court ‘had sufficient experience’ with the offence in question.[579]
6.62 This case went on to set out the approach to issuing a guideline judgment that appears to have been adopted by the Western Australian Court of Appeal in subsequent cases. Particularly, since guideline judgments were introduced to give the effect of the power of precedent to certain sentences, ‘the court should use its power to give a guideline judgment sparingly’.[580] Further, ‘a guideline judgment should be one which deals with considerations relevant to sentence in a particular type of case, or the proper application of a particular form of sentencing disposition provided by the law’.[581]
6.63 Also in 1997, the Western Australian Court of Appeal refused to give a guideline judgment in regard to domestic violence, stating that the range of offending behaviour that encompassed domestic violence was too broad and ‘[e]ach sentence must be appropriate to the particular circumstances of the case’.[582]
On a number of occasions in the past this Court has declined such an invitation, particularly having regard to the entrenched nature of a guideline judgment, and the court has been concerned that no such judgment should be given unless the particular case before it appears to point up a clear need for a judgment of that character and the utility for the decision of future cases of the guidance which may be given by such a judgment.[583]
6.65 In Herbert v The Queen, the Western Australian Court of Appeal considered that a case concerning the application of the principle of totality (in the context of multiple armed robbery offences) was ‘not an appropriate occasion to deliver a guideline judgment’.[584]
6.66 Further, in the 2008 case of Yates v The State of Western Australia, the court held that since that case was only the second occasion on which the offence in question had been sentenced, it was ‘inappropriate to give a guideline judgment’, and that it was ‘preferable that the relevant sentencing and legal issues emerge on a case by case basis before a guideline judgment is given’.[585]
Queensland
6.68 Queensland has the most comprehensive, and newest, guideline judgment framework.[586] It has not, as yet, utilised its guideline judgment provisions.
6.69 In a case referred to the District Court in 2014, it was noted that the offender’s assault and drug offences ‘will allow a higher Court the opportunity to consider making a guideline judgment regarding how strongly this type of offending is to be condemned’, and that a decision not to do so would also constitute guidance.[587]
Victoria
6.70 Despite having the power to give guideline judgments since 2004, the Court of Appeal has only delivered one guideline judgment. Boulton was handed down in December 2014 and was concerned with community correction orders (CCOs) as a sentencing option.[588]
The provision of a guideline judgment can promote consistency and public confidence in the sentencing process by articulating elements that must be taken into account in a particular sentencing context, and by giving guidance as to a unified approach. It can also facilitate the development of coherent sentencing practice by way of unified application of principle and, in turn, assist the identification of relevant similarities and differences between cases.[589]
Because of the High Court’s prohibitions on sequential reasoning and numerical starting points, the guidelines do not set out a decision-making process nor do they give numerical boundaries for duration. Instead, they contain narrative or discursive policy statements concerning the use of the CCO sanction and its conditions.[590]
the beginning of a more nuanced jurisprudence that recognises that fair sentencing outcomes are not just a question of the amount of discretion, they are also the product of practical appellate regulation of the decision-making process aimed at promoting sentences that are both individualised and equal between similar offenders.[591]
6.74 Nonetheless, the unique nature of CCOs and the many variables that influence their issuance and conditions provided a clear example of ‘the chances [being high] for variation based more on the judge who happened to decide the case than on the case facts’.[592] In Boulton, it was recognised that:
Without practical policy guidance across a range of issues, differences between sentencers were resulting in unacceptable unwarranted disparity in the imposition, duration and structure of punishment for similarly situated offenders.[593]
Assertions that a guideline was necessary predominately because of the novelty of CCOs may mitigate the disapproval of an individualist High Court but, disappointingly, they also reduce the possibility of guideline judgments being issued in relation to these other sanctions or to offences, in the case of offence-based guideline judgments, or to general issues, like the impact of a guilty plea or totality, in the case of generic guideline judgments that apply to a range of offences.[594]
A guideline judgment may serve to strike an appropriate balance between the individual justice achieved through the sentencing discretion and the objectives of consistency of sentencing and maintenance of public confidence in sentencing and the courts who administer criminal justice. Hence one of its functions would be to address a pattern of inconsistency or leniency in sentencing for an offence.[595]
Experience in other areas of the law has shown that judicially expressed guidelines can have a tendency, with the passage of time, to fetter judicial discretion by assuming the status of rules of universal application which they were never intended to have. It would, in my opinion, be unfortunate if such a trend were to emerge in the sentencing process where the exercise of the judge’s discretion, within established principles, to fix a just sentence according to the individual circumstances of the case before him or her is fundamental to our system of criminal justice.[596]
6.79 In Nash v The Queen,[597] Maxwell P identified a variation in sentences for cases of intentionally causing serious injury, and listed factors that could assist in assessing the gravity of that offence. He noted that ‘[t]he development of such a list of indicia should be conducive to consistency in sentencing and – hence – to public confidence in the criminal justice system’, and that these were goals compatible with parliament’s intention when providing for guideline judgments.[598] However, the court did not take the opportunity to prepare a guideline judgment, with Maxwell P stating:
The time has come, in my view, for the Director of Public Prosecutions to consider inviting this Court, in an appropriate case, to deliver such a guideline judgment. Failing such an invitation, this is a course which the Court itself may need to consider taking when an appropriate occasion arises.[599]
I suggested in Nash, and I reiterate, that the wide variation in sentencing for [intentionally causing serious injury] may make it appropriate for application to be made to this Court for a guideline judgment under s 6AC(c) of the Sentencing Act 1991 (Vic). Such a guideline would set out the criteria by which the sentencing court would assess the seriousness of a particular instance of [intentionally causing serious injury]. A guideline of that kind should facilitate the assessment of seriousness in the case at hand, and enable meaningful comparisons to be made between one case and another. Further, reference to a standard set of criteria should make it more readily apparent, both to the person being sentenced and to other courts examining the decision, how the sentence was arrived at.[600]
6.82 In Miller v The Queen,[601] the Crown submitted to the court that reliance on sentencing remarks in individual cases, rather than guideline judgments, has the effect of placing an importance on numerical equivalence in sentences rather than consistent application of sentencing principles. By extension, reliance on ‘a handful of individual sentences’ in lieu of a guideline judgment can lead to a situation where the sentencing judge ‘impermissibly treats sentences imposed in other cases as setting the upper and lower limits of the permissible range’.[602]
6.83 While this was not accepted by the court, similar reasoning was recently handed down in Harrison v The Queen[603] where guiding cases were provided to correct any notion of a false ceiling in negligently causing serious injury by driving cases. The opportunity to deliver a guideline judgment was not taken.
6.85 This marries with the perception of the Director of Public Prosecutions who submitted that the main issues with any amendments to the guideline judgment scheme are that they are ‘more likely to be ignored than abused’.[604]
Enhancing the Victorian guideline judgment scheme
Application procedures
Applications by the Attorney-General
6.94 Under section 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Attorney General of New South Wales can apply for a guideline judgment and, as part of that application, submit proposed guidelines. An application under this section cannot be made in proceedings before the court in respect to a particular offender, and the court may choose to deliver the guidelines separately or as part of another judgment. Applications by the Attorney General enable ‘the court to redress any perceived inconsistency in sentencing principles, without the need to await for the arrival of a specific case’.[605]
6.96 In general, the New South Wales Court of Appeal has set out four criteria to justify the giving of a guideline that parties have tended to shape their submissions around, including perceptions of prevalence, inconsistency in sentence quantification, sentence patterns that are either too harsh or too lenient, and general deterrence.[606]
6.97 The New South Wales Court of Criminal Appeal has only refused one application for a guideline judgment by the Attorney General.[607] In refusing the application for a guideline judgment for the offence of assaulting a police officer, the Court of Criminal Appeal provided three main reasons for concluding that the Attorney General’s proposed guidelines were not appropriate.
6.98 First, the guidelines recommended a custodial sentence as the most appropriate sentence for assault of a police officer without providing for the wide range of behaviour that can constitute assault, which has varying levels of seriousness. The court acknowledged that there is a ‘high public purpose of the courts supporting the authority of the police’ but held that ‘the court should be very slow to adopt a guideline’ in relation to an offence, ‘the gravity of which can vary so greatly’.[608]
6.99 Second, after reviewing the cases, the court noted that the majority of offences were dealt with in the Magistrates’ Court and that there was no evidence of sentence appeals. The court held that ‘[t]here has been no history of Crown appeals with respect to the offence in question’, and that while some sentences could be viewed as objectively inadequate, ‘there was nothing to suggest that such defects could not be cured by the normal appeal process’.[609]
be slow to come to a conclusion that there can be detected any systematic pattern of leniency in sentences by magistrates in a context where the Crown has not exercised its right to lodge appeals against the leniency of sentences at all.[610]
Before this Court decides that guidance is appropriate it should be satisfied that the pattern of inadequacy extends beyond particular instances. The absence of appeals from magistrates suggests that inadequacy has not been regarded as systematic.[611]
6.102 Third, the court noted amendments to the Crimes Act 1900 (NSW) that had been introduced since the application for the guideline judgment. These included codified aggravating and mitigating factors and the new standard non-parole periods, both of which applied to the offence in question and could lead to new sentencing patterns. The court preferred to ‘allow the new legislative scheme to operate, and to acquire some experience with its effects, prior to determining a guideline with respect to this offence’.[612]
The authority of the police, in the performance of their duties, must be supported by the courts. In cases involving assaults against police there is a need to give full weight to the objective of general deterrence and, accordingly, sentences at the high end of the scale, pertinent in the light of all the circumstances, are generally appropriate in such cases.[613]
6.104 In South Australia, guidelines may be established or reviewed on the initiative of the Full Court or on application by the Director of Public Prosecutions, the Attorney-General, or the Legal Services Commission. Those parties may all appear in any guideline judgment proceedings, in addition to the Commissioner for Victims’ Rights, the Aboriginal Legal Rights Movement, and any other victims of crime group that has a ‘proper interest in the proceedings’.[614]
6.105 The South Australian Court of Criminal Appeal may give or review guidelines in an appeal against sentence, unless guidelines are being given or reviewed in response to an application from the Attorney-General, in which case they must be given in separate proceedings.[615]
6.106 In Queensland, the Attorney-General, Director of Public Prosecutions, and Legal Aid Queensland may apply for a guideline judgment to be given or reviewed, and such applications can be outside of proceedings. In addition, a person may apply to the court for a review of a guideline judgment after he or she has been convicted, as part of the person’s appeal, ‘to the extent that it contains a guideline that is relevant in the circumstances’. These parties may all appear in relevant guideline proceedings and make submissions on the framing of any guidelines.[616]
6.107 The Queensland provisions have not been relied on as yet. In 2011, the Attorney-General of Queensland lodged an appeal based on manifest inadequacy due to the courts not taking into account amendments to maximum penalties for assault offences, but ‘expressly disclaimed any wish for a guideline judgment’.[617]
6.108 The 2002 Victorian sentencing review recommended that the Attorney-General be able to make applications, and the Sentencing Advisory Council be able to make proposals for guideline judgments.[618]
Reforming Victorian guideline judgment application procedures
Applications by the Attorney-General
6.112 Such applications can lead to more comprehensive guidance and can be used to articulate responses to issues identified by the Attorney-General, even where a guideline is not considered appropriate. As demonstrated in New South Wales, if the court provides reasons for refusing an application, this can also serve to depoliticise the process and achieve some of the broader reasons behind a guideline judgment, such as public communication of sentencing practices, transparency, and clear articulation of principles.[619]
6.113 The ability for the Attorney-General to make applications for guideline judgments was supported by a number of submissions that highlighted the benefit of broadening this responsibility to enable more issues for guidance to be brought before the court.[620] The Director of Public Prosecutions stated that he considered ‘that this is an appropriate mechanism for the executive arm to engage with and influence the development of sentencing standards’, and this would ‘permit the Attorney-General to step forward, in the courts, as a “custodian of sentencing standards”’.[621]
6.114 Importantly, some submissions cautioned against over-politicising guideline judgment processes through Attorney-General applications. Victoria Legal Aid noted that ‘[s]uch a facility may alleviate the current difficulty of waiting for an appeal before the Court to initiate the guideline judgment process’, but warned that ‘appropriate safeguards are required to ensure the appropriate separation and independence of judicial and executive functions’.[622]
If the Attorney-General were able to apply for a guideline judgment separate to proceedings before a court, political issues of the day could influence unnecessary changes to whole areas of criminal law practice and procedure.[623]
6.116 In addition, the Law Institute of Victoria questioned whether the Attorney-General is better placed to identify the need for a guideline judgment than those exposed to sentencing on a daily basis, and indicated that there could be potential separation-of-powers issues if the Attorney-General exercised too much influence over judicial processes. The Law Institute of Victoria preferred reforms that enabled the Court of Appeal to initiate guideline judgment processes without an appeal.[624]
6.117 In regard to Court of Appeal guidelines outside an appeal, Victoria Legal Aid considered that the current approach was more consistent with the court’s traditional role, although it conceded that there may be ‘some merit in providing greater flexibility to the Court of Appeal to initiate a guideline absent an appeal with input from institutional stakeholders, or to separate consideration of a guideline from an appeal before the Court’.[625] The Director of Public Prosecutions submitted that a ‘reform that permitted the Court to formally create its own “matter” without the benefit of an application or supporting vehicle must press too closely on the limits of judicial function’.[626]
Decision to make an application
6.119 In this way, the purpose of guideline judgments is reiterated. Guideline judgments should not be sought in respect of individual or notorious cases – consistency of approach remains at the forefront of guidance. It is envisaged that the application power would be used selectively by the government, including where systemic sentencing issues have been identified by the court, but an appropriate ‘vehicle’ has not arisen to commence guideline judgment proceedings. For example, it may be considered appropriate for the Attorney-General to seek guidance on issues more common in the summary jurisdiction, from which an application attached to an appeal before the Court of Appeal is unlikely, including guidance on sentencing for family violence offences.[627]
6.120 The decision to make an application would not be reviewable by the court. Instead, the court would consider the merits of the application in the same way it considers other party applications, having regard to the need to promote ‘consistency of approach in sentencing offenders’ and ‘public confidence in the criminal justice system’.[628] Evidence of systemic sentencing issues would support these purposes.
Role of the Attorney-General in guideline judgment proceedings
Recommendation 4: Attorney-General may apply for a guideline judgment
Part 2AA of the Sentencing Act 1991 (Vic) should be amended to add provisions that allow the Attorney-General to apply for a guideline judgment, absent an appeal.
The procedure for an application by the Attorney-General should mirror, as far as is practicable, the existing provisions, and should provide for the following features:
Reforms to procedure for submissions on a guideline judgment
6.126 There are procedural requirements for giving or reviewing guideline judgments in Victoria. The Court of Appeal may consider whether to give a guideline judgment when hearing and considering an appeal against sentence, either on its own initiative or on an application by one of the parties to the appeal.[629] It may also review and confirm, vary, revoke, or substitute guideline judgments in the same manner. The guideline judgment can be either part of the judgment in an appeal or delivered separately. The court therefore retains the discretion as to whether to give or review a guideline judgment. The major threshold for the delivery of a guideline judgment is that a decision to do so must be reached unanimously by all judges constituting the court.
6.127 Once the court decides to give a guideline judgment, it must notify the Council and consider any views submitted in writing by the Council.[630] It must also give the Director of Public Prosecutions and Victoria Legal Aid the opportunity to appear before the court to make submissions. The court must have regard to those views and submissions as well as to ‘the need to promote consistency of approach in sentencing offenders’ and ‘the need to promote public confidence in the criminal justice system’.[631]
Timing of submissions
6.130 In practice, the court’s decision to give a guideline judgment occurred at the same time as it delivered its judgment, and submissions were required before this. Victoria Legal Aid’s submission supported clarifying the procedure to expressly allow for submissions to be made while the court is considering whether to give a guideline judgment.[632]
Sufficient time for data analysis and public consultation
6.133 One of the Council’s functions is to ‘consult on sentencing matters, with government departments and other interested persons and bodies as well as the general public’.[633] Consultation is integral to all of the Council’s work, and critical to both its interpretation of statistical data analysis and its development of evidence-based policy advice.
6.135 At the Council’s Sentencing Guidance Stakeholder Discussion Forum, some participants cautioned against codifying a requirement that may delay and therefore dissuade the court from providing a guideline judgment, while others noted that it was important to allow the Council the time necessary for consultation. One participant stated that ‘six months to a year, when you’re talking about guidance for the court on incest cases for the next ten years, is not an unreasonable amount of time’.[634]
Recommendation 5: Clarify procedure for submissions on a guideline judgment
Section 6AD of the Sentencing Act 1991 (Vic) should be amended to clarify that the Court of Appeal must, when it is considering whether to give or review, or has decided to give or review, a guideline judgment (including an application for a guideline judgment from the Attorney-General):
Such views and submissions may include proposals on the form of guidelines.
In specifying the period within which the Sentencing Advisory Council may state its views in writing, the Court of Appeal should allow such time as is reasonably required for the Council to undertake:
Numerical guidance
• any other matter consistent with the principles of the Sentencing Act 1991 (Vic).[635]
6.139 In addition, factors that the court must have regard to when making a guideline judgment include the need to promote consistency of approach and to promote public confidence in the criminal justice system.[636]
6.140 The express power to give guidance on levels and ranges was the only provision not included in the legislation from the list of guideline judgment content provisions recommended in Pathways to Justice: Sentencing Review 2002.[637]
It’s certainly our provisional view that the guideline provisions don’t authorise a Hogarth or Harrison-type exercise. The provisions seem to steer well away from authorising the Court to say anything about sentencing numbers. So it’s not obviously a fit with the question that we’ve raised and which you evidently support.[638]
6.143 Coupled with uncertainty around numerical guidance generated by High Court commentary around guideline judgments in New South Wales, Victoria is in the curious position that ‘denies the guideline judgment a tool that standard appellate judgments are permitted to apply’.[639]
Numerical guidance and the High Court
6.144 There has been uncertainty surrounding the status of guideline judgments since the High Court’s decision in Wong, which overruled a guideline judgment on Commonwealth drug importation offences promulgated by the New South Wales Court of Criminal Appeal in 1999.[640]
6.145 The majority of the High Court held that the sentencing guidelines were invalid because they were inconsistent with the Commonwealth legislation that required the sentencing judge to take into account all of the circumstances, rather than only the quantity of narcotics as set out in the guidelines.[641] Further, the sub-classification of offences based on the quantity of narcotics, as set out in the guidelines, was inconsistent with the Commonwealth legislation, and was possibly of a legislative, rather than judicial, nature.[642] This reasoning did not invalidate other guideline judgments for state offences.
6.146 Significantly, the court was divided on the validity of numerical guidelines. Gaudron, Gummow, and Hayne JJ were particularly critical of numerical guidelines in their joint decision, asserting that they contravened the common law principles of proportionality, intuitive synthesis, and individualised justice.[643] There was, however, some support for qualitative guidelines that act as a ‘sounding board’ against the exercise of discretion[644] or that set out broad sentencing standards, rather than numerical ranges.[645]
since Markarian, the High Court has become more forceful in its view that measures seeking to operationalise consistency constitute an unreasonable fetter on the sentencing discretion and that the fairness of sentencing outcomes is in a direct relationship with the amount of discretion accorded to individualised sentences.[646]
6.148 The New South Wales Court of Criminal Appeal responded to the High Court’s criticism of guideline judgments in R v Whyte[647] (‘Whyte’). After Wong, the New South Wales Parliament enacted legislation giving retrospective authority to the court to deliver guideline judgments and incorporate them as a factor that sentencing judges should take into account, thereby nullifying the majority of jurisdictional concerns that the High Court held.[648] However, it is worth noting that no express jurisdiction to deliver numerical guidance was included in these legislative reforms.
6.149 Whyte is a court-initiated guideline judgment, involving the revision of its first guideline in Jurisic (on dangerous driving). In choosing to restate the guideline, Spigelman CJ noted that ‘the numerical guideline contained in Jurisic has proven to be significant in ensuring both the adequacy of sentences and consistency in sentencing’.[649] However, the court considered it appropriate to restate some of the principles set out in Jurisic so that it was clear that they should act only as an ‘indicator’ and to provide more detail on the typical case to which the numerical guideline would apply.[650]
6.150 Specifically in response to Wong, Spigelman CJ held that ‘the Court of Criminal Appeal may give a numerical guideline where the judgment indicates with sufficient detail the kind of case for which that guideline is considered appropriate’.[651] His honour went on to highlight the importance of numerical guidance:
numerical guideline judgments have a role to play in achieving the ultimate goal of equality of justice in circumstances where, as a matter of practical reality, there is tension between the principle of individualised justice and the principle of consistency.[652]
6.151 Spigelman CJ considered that numerical guidance could be compatible with individualised justice if such guidelines are merely a factor to be taken into account when sentencing, and if a sentencing decision is reached as a final balancing exercise or instinctive synthesis.[653]
6.152 In regard to consistency, Spigelman CJ noted the High Court’s concerns about ‘impermissibly prescriptive’ guidelines and suggested that ‘[i]t is the very concreteness of a numerical guideline, which may create tension with the principle of individualised justice, that can, as a matter of practical reality, help to avoid impermissible inconsistency’.[654] Further, consistency would be more communicable to the public, and capable of fostering public confidence in the criminal justice system, if the process of reasoning was clarified through the use of a starting point or range set out in a guideline judgment.[655]
Reforms to the content of a guideline judgment
6.155 The Director of Public Prosecutions submitted that the inability for the court to provide guidance on range ‘inhibits the provision to both judges, and the community of simple, clear guidance about sentencing standards’. He further stated that if this situation is preserved, it ‘is likely to also preserve the laborious and often unrevealing study of sentencing statistics and decided cases’.[656]
6.156 The Director of Public Prosecutions stated that he cautiously supported providing the court with the ability to give guidance on sentencing range and that ‘this power would assist the Court of Appeal to break the impasses that must inevitably develop while current sentencing practices continue to influence (or govern) sentencing’.[657]
There may be merit in the Court of Appeal giving guidance on sentencing ranges (in respect of low, medium and high levels of objective offence seriousness, rather than being numerical or ‘tariff orientated’) and listing a non-exhaustive series of factors that may aggravate or mitigate sentence.[658]
6.158 In particular, Victoria Legal Aid suggested that ranges provided in guideline judgments should be a factor to steer by in the same way that the maximum penalty currently operates.[659]
Guidance on sentence levels and range
6.162 Guidance of this nature is permissible under common law, as interpreted by the New South Wales Court of Criminal Appeal in Whyte.[660] However, to remove any uncertainty, the parliament should also express its intention to abolish any common law to the contrary in the legislation.
Recommendation 6: Guideline judgment may contain guidelines on sentencing level or range
Part 2AA of the Sentencing Act 1991 (Vic) should be amended to provide that a guideline judgment may set out the appropriate level or range of sentences for a particular offence or class of offence and that it is the intention of Parliament to abolish any rule of the common law to the contrary.
Limitations of the guideline judgment scheme
• guideline judgments require significant resourcing and a judiciary that is willing to take a methodical approach towards disparity reduction;[661]
Chapter 7: A Victorian standard sentence scheme
Overview
Standard sentence schemes in other Australian jurisdictions
Standard non-parole period schemes
7.6 Standard non-parole period schemes establish a ‘legislated non-parole period intended to provide guidance to the courts on the minimum length of time an offender found guilty of an offence should spend in prison before being eligible to apply for release on parole’.[662] The ‘standard’ or ‘presumptive’ non-parole period applies to custodial sentences (where a non-parole period is fixed) and does not apply to non-custodial sentences.
The standard non-parole period scheme in New South Wales
7.9 A defined term standard non-parole period scheme operates in New South Wales. The scheme applies to the sentencing of 33 serious offences; for some offences, there are multiple standard non-parole periods depending on the circumstances in which the offence was committed.[663] The offences included in the scheme carry maximum penalties ranging from 7 years’ imprisonment to life imprisonment, and the standard non-parole periods range from 3 years to 25 years.[664]
the non-parole period for [a prescribed offence] that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.[665]
7.11 There has been considerable debate in New South Wales as to what constitutes an ‘objective’ factor, as opposed to a factor personal to the offender.[666] For example, premeditation or pre-planning an offence could be considered an aspect of the offending, or an aspect personal to the offender, as could provocation.[667]
7.12 There has been some judicial guidance around whether particular factors may be considered in assessing the objective seriousness of the offence, but there has not been a clear resolution on which factors can be considered in determining the objective seriousness of the offence.[668] A Justice of the New South Wales Court of Criminal Appeal has observed that the judgment of the High Court in Muldrock v The Queen (‘Muldrock’)[669] has ‘left somewhat opaque the meaning of the term “objective seriousness”’.[670]
New South Wales sentencing process
7.13 In New South Wales, a court sentences a charge of an offence by imposing a non-parole period and then a sentence on each charge of an offence (described as a ‘bottom up’ process), before considering cumulation and concurrency (or imposing an aggregate sentence) in order to arrive at a total effective sentence and a non-parole period for the case as a whole. The non-parole period for either a single sentence or an aggregate sentence must not fall below three-quarters of the term of the sentence unless there is a finding of ‘special circumstances’.[671]
Compatibility with intuitive synthesis
7.14 The New South Wales Court of Criminal Appeal initially determined that, when sentencing for a standard non-parole period offence, a court was to determine whether the offence was in the middle of the range of objective seriousness and then, if the offence was in the middle of the range, the court was to consider the reasons for not imposing the standard non-parole period.[672]
7.15 In Muldrock the High Court held that this approach was incorrect. The way in which the New South Wales Court of Criminal Appeal had applied a standard non-parole period was held to be inconsistent with the ‘instinctive’ or ‘intuitive’ synthesis approach to sentencing (see [2.29]–[2.37]), whereby the sentencing judge weighs all the factors and arrives at one final sentence. This is in contrast to an approach (described as a ‘two-stage’ approach[673]) whereby the judge quantifies the individual factors leading to a final determination.
7.16 Consistent with instinctive synthesis, the High Court held that a court in New South Wales is not required to explain the extent to which the seriousness of the case before it differs from a hypothetical offence in the middle of the range of seriousness represented by the standard non-parole period. Instead, a court must have regard to the standard non-parole period in the same way it has regard to the maximum penalty: as a ‘guidepost’ or ‘yardstick’ to sentencing, and not a starting point.[674]
The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.[675]
The defined term standard non-parole period scheme in the Northern Territory
7.18 There are two different forms of standard non-parole period schemes in operation in the Northern Territory: one is a defined percentage non-parole period scheme for certain sexual offences and certain offences committed against children under the age of 16, and one is a defined term minimum non-parole period scheme for murder.[676]
7.19 With regard to the defined non-parole periods for murder, the court must set a non-parole period of at least 20 years, or 25 years in certain circumstances.[677]
The defined percentage standard non-parole period scheme in the Northern Territory
7.20 In the Northern Territory, a defined percentage non-parole period scheme applies to the sentencing of sexual offences involving sexual intercourse without consent under section 192(3) of the Criminal Code Act (NT)[678] and certain offences committed by adult offenders against children under the age of 16, including sexual offences and offences involving physical harm.[679] If the court sentences an offender to a term of imprisonment for a specified offence and does not wholly or partially suspend the sentence, the court is required to set a non-parole period of not less than 70% of the head sentence.[680]
7.21 The court can depart from this requirement if it considers that the nature of the offence, the past history of the offender, or the circumstances of the particular case makes the fixing of such a non-parole period inappropriate.[681]
The defined percentage standard non-parole period scheme in South Australia
7.22 In South Australia, if an offender is sentenced for a fatal offence or an offence where the victim suffers total and permanent physical or mental incapacity, the court is required to fix a minimum non-parole period. That period is 20 years for an offender sentenced to life imprisonment for murder and 80% (or four-fifths) of the term of imprisonment for any other major indictable offence.[682]
• the offender’s degree of cooperation in the investigation or prosecution.[683]
Recommended scheme in Queensland
7.24 In Queensland, there are defined term and defined percentage non-parole period schemes in operation for various offences. For example, where an offender is sentenced for multiple convictions of murder or has a prior conviction for murder, he or she is subject to a minimum non-parole period of 30 years, unless exceptional circumstances apply.[684]
deliver a number of the intended outcomes of a defined term scheme, including the minimum term an offender must spend in prison for a given offence, while preserving the current approach to sentencing in Queensland. It would also largely avoid many of the problems that have arisen in NSW, including the additional complexity such a scheme has introduced to sentencing in that State, increasing the risks of sentencing errors and appeals, and the need for detailed and broad grounds for departure, which compromise the ability of the scheme to operate as a ‘standard’ non-parole period scheme.[685]
Purposes of a standard sentence scheme
7.28 The Council considered the purposes, benefits, and disadvantages of a standard sentence scheme that would take the form of a legislated guidepost in addition to the maximum penalty. The Council has also considered whether any of the offences with sentencing problems discussed in Chapter 5 would benefit from such a guidepost, where it has been identified that the maximum penalty is not providing adequate guidance to sentencing courts.[686]
7.29 In New South Wales, the standard non-parole period scheme represents the non-parole period for an offence that, taking into account ‘only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness’.[687] This guidepost operates within the wider sentencing framework in New South Wales, and the sentencing court is still obliged to take into account all of the relevant factors in determining an appropriate sentence.[688]
7.31 Where there is a divergence between the maximum penalty and current sentencing practices, an additional legislated level, indicating parliament’s view on the appropriate sentence for an offence in the middle of the range of objective offence seriousness, may be of greater utility as a guidepost than the maximum penalty. A court is far more likely to sentence cases that fall near the middle of the range of objective offence seriousness than cases that represent the worst possible offending by the worst offender, as represented by the maximum penalty.[689]
Stakeholders’ views
7.32 While the majority of stakeholders did not support a standard sentence scheme, some stakeholders submitted that, if the government is minded to introduce such a scheme, a model based on the ‘mid-range’ of objective seriousness could be workable.[690]
7.33 Stakeholders who provided qualified support for a standard sentence scheme noted that a model based on the New South Wales legislation was preferable, given that it has ‘withstood challenge’, and there would be some guidance provided by the jurisprudence that has developed since the introduction of the New South Wales standard non-parole period scheme.[691]
7.34 Several stakeholders emphasised the fact that any proposed standard sentence scheme should operate as a further ‘guidepost’ in the instinctive synthesis process, and should not involve two-staged sentencing.[692]
7.35 It was considered that a Victorian standard sentence scheme should apply to the sentence on a charge, and not to the non-parole period,[693] and it should be limited in application to a narrow range of more serious offences.[694]
Structure of a Victorian standard sentence scheme
Standard sentence scheme should be combined with guideline judgment reforms
7.39 For these reasons, the Council recommends that if the government is minded to introduce a standard sentence scheme it should do so in combination with the recommendations made by the Council for an enhanced Victorian guideline judgment scheme.[695]
Standard sentence, not standard non-parole period
7.40 As described at [7.13], in New South Wales, the court sentences a charge of an offence by imposing a non-parole period, and then a sentence on each charge (described as a ‘bottom up’ sentencing process), before considering cumulation and concurrency and arriving at a total effective sentence and a non-parole period for the case as a whole. The non-parole period for either a single sentence or an aggregate sentence must not fall below three-quarters of the term of the sentence unless there is a finding of ‘special circumstances’.[696]
A system founded on a standard non-parole period should not be introduced in Victoria ... it is contrary to the Victorian sentencing process of determining the individual and head sentence before the NPP. It would be a radical change to sentencing procedure, and in view of the existence of other options, should not be the preferred method.[697]
7.45 The Law Institute of Victoria also stated that introducing a defined term standard non-parole period in Victoria would not be appropriate given the sentencing process in Victoria.[698]
7.47 Second, the Council’s recent analysis of non-parole periods[699] revealed that there was a strong and consistent relationship between the total effective sentence length in a case and the non-parole period, looking at cases sentenced in the higher courts from 2010–11 to 2014–15.[700]
7.48 This suggests that the non-parole period is being determined by courts using the same considerations as those that determine the total effective sentence. In accordance with the case law, the data demonstrates a proportionate relationship between the total effective sentence and the non-parole period.[701] Consequently, there is no evidence, for example, that Victorian courts impose disproportionately low non-parole periods compared with total effective sentences.
7.50 In Power v The Queen, the High Court acknowledged that the purpose of parole is ‘to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom’.[702] However, the court stressed that this is only to occur:
when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.[703]
[the] minimum term is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify.[704]
7.52 In other words, although the purpose of release on parole is to promote the offender’s rehabilitation, rehabilitation is not the only consideration when the courts fix a non-parole period. The setting of a non-parole period may serve purposes other than rehabilitation, including community protection and deterrence.[705] Therefore:
a more serious offence will warrant a greater non-parole period due to its deterrent effect upon others and the need to give close attention to the danger which the offender presents to the community.[706]
7.53 Although the fixing of a non-parole period confers a benefit on the offender, the courts have also emphasised that it serves the interests of the community because the rehabilitation of the offender is in the community’s interest.[707]
Guidepost to objective offence seriousness
7.55 The Council does not consider that the common law approach to sentencing represented by the ‘instinctive’ or ‘intuitive’ synthesis should be amended. This approach allows for a sentencing court to properly consider all of the relevant facts and circumstances in a case when exercising judicial discretion. There was strong support in submissions from organisations, including the Law Institute of Victoria, that this approach should be retained.[708]
7.56 As a result, the Council proposes that the language of the New South Wales standard non-parole period scheme should be adopted, given that the New South Wales scheme was considered by the High Court in Muldrock to be compatible with the common law, and the sentencing legislation in New South Wales was clarified to accord with the High Court’s decision.[709]
A guidepost, not a starting point
7.62 In applying the standard sentence, a judge should not be required to distinguish the case before him or her from the hypothetical middle of the range offence or be required to justify why the sentence imposed bears any particular relativity to the standard sentencing range.[710]
Applying the standard sentence
• In sentencing an offender, the sentencing court will be obliged to take into account the full range of factors in determining the appropriate sentence for the offence.[711]
the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case (emphasis added).[712]
oblige[s] the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as ‘the non-parole period for an offence in the middle of the range of objective seriousness’ [s 54A(2)]. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.[713]
7.69 A court is not required to commence with an assessment of whether the offence falls within the middle of the range of objective seriousness (by reference to a hypothesised offence) and then ask whether there are matters that warrant a longer or shorter period.[714]
to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or ... to classify the objective seriousness of the offending.[715]
the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences.[716]
7.72 Objective offence seriousness takes into account factors present in the offending behaviour,[717] prior to consideration of subjective aggravating and mitigating factors. The range of objective offence seriousness therefore incorporates varying combinations of harm and culpability factors (such as significant planning or a vulnerable victim) that serve to make one charge of an offence more or less serious than the next, prior to the consideration of subjective factors (such as an offender’s prior criminal record or remorse).
7.74 In R v Way, the New South Wales Court of Criminal Appeal noted that a mid-range offence is not necessarily represented by a ‘typical’ or ‘common’ case, because such a case only indicates the numerical frequency of its occurrence, and not the objective criminality or the consequences of the offence.[718]
7.75 Practically, the middle of the range of objective seriousness is ‘not a precise point, nor is there any paradigm by which it can be identified’.[719] This is a consequence of the scope and variety of circumstances that can be relevant to considering seriousness.
7.76 Furthermore, a sentencing court will be in error if it approaches the sentencing task in a way that is overly prescriptive[720] or that treats the standard sentence as a starting point.
7.77 It is likely that there will be an increase in sentence lengths for some offences included within the standard sentence scheme. This will not be because it is a starting point in the sentencing exercise, but because the standard sentence is a factor added to the ‘court’s awareness’ as a relevant consideration in determining the appropriate sentence.[721]
No minimum non-parole period
7.78 Some stakeholders considered that if a standard sentence scheme were introduced and based on the sentence on the charge (rather than the non-parole period – see [7.40]–[7.53]), then it may be necessary to retain similar provisions to the minimum non-parole period requirement introduced as part of the baseline sentencing scheme.[722] Those provisions require a minimum proportion of the total effective or head sentence to be imposed as the non-parole period in a case involving a baseline charge (see [4.27]).
7.79 One stakeholder commented that ‘[w]hilst it would be hoped that judges would not circumvent the legislation by imposing low non-parole periods, reality suggests that could well happen’.[723]
7.81 Further, the Council’s recent analysis of parole and non-parole periods has shown no evidence of any problem in the proportion of the total effective or head sentence that the non-parole period represents.[724]
Criteria for including offences in the standard sentence scheme
7.86 For example, the offence of aggravated burglary, identified by the Council as an offence with sentencing problems, can be committed in a number of ways,[725] differentiated by the intent of the offender committing the burglary. This intent could include simply to steal, or it could include an intention to rape or otherwise physically assault a person.[726] Consequently, a single legislated guidepost representing the middle of the range of objective offence seriousness cannot properly account for the different objective ranges that would result from differing intents behind the commission of that single offence.
Recommendation 7: Legislated standard sentence scheme as part of a combined model for providing sentencing guidance
If a new legislated guidepost is to be introduced, it should be in the form of a standard sentence scheme accompanied by the enhanced guideline judgment scheme recommended by the Sentencing Advisory Council.
The standard sentence should:
Exclusions from the standard sentence scheme
Exclusion of summary jurisdictions
The Magistrates’ Court
7.90 In other Australian jurisdictions, such as New South Wales[727] and South Australia,[728] the standard non-parole periods do not apply to offences heard and determined summarily.
7.91 In Victoria, the maximum term of imprisonment that a magistrate can impose for a single charge is two years.[729] Given the jurisdictional limit, a further guidepost that is beyond that limit is unlikely to provide meaningful guidance to magistrates in that jurisdiction.
The Children’s Court
Children sentenced in the higher courts
7.96 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.[730]
7.97 For the reasons discussed above, the standard sentence scheme should not apply to offenders aged under 18 at the time of offending, regardless of whether or not they are sentenced in the higher courts, given the different approach to sentencing children in Victoria.[731]
Young offenders
7.100 In its submission to the Council, Youthlaw expressed the opinion that ‘youth’ as a factor should be seen as an ‘exceptional circumstance’ (for the purposes of any potential mandatory sentencing scheme). Youthlaw recommended that ‘youth’ be defined as under 25 years of age, based on ‘recent brain development science’.[732]
7.101 The Criminal Bar Association of Victoria submitted that any potential legislation for a standard non-parole period ‘should provide express exceptions to the applicability of the standard non-parole provisions with respect to offenders aged 21 or under at the time of offending’.[733] Similarly, Victoria Legal Aid considered that any standard sentence scheme should ‘exclude from its ambit offenders under the age of 21 at the time of offending’.[734]
7.102 The Council gave extensive consideration to whether the standard sentence scheme should apply in cases where the court is considering sentencing a young offender, aged under 21, to serve a custodial sentence in a juvenile detention centre (on a youth justice centre order) under Victoria’s ‘dual track’ sentencing system.[735]
7.105 As a result, there are circumstances in which the standard sentence may be of less influence on the final sentence that is imposed, once the court has had proper regard to all of the circumstances of the case. For example, there are cases in which the offender falls to be sentenced as a young or youthful offender, Verdins factors are enlivened,[736] or the court considers a non-custodial sentencing disposition, such as a community correction order, to be appropriate.
7.107 In order to impose either a youth justice centre order or a community correction order, the court must first seek a report from Corrections Victoria that addresses the suitability of the offender for such an order.[737] The standard sentence scheme does not preclude a court requesting or considering such a report.
Recommendation 8: Exclusions from the standard sentence scheme
If a standard sentence scheme is introduced, the standard sentence should not apply to the sentencing of:
Current sentencing practices and the standard sentence scheme
Recommendation 9: Court must disregard current sentencing practices where incompatible with standard sentence
If a standard sentence scheme is introduced, section 5(2)(b) of the Sentencing Act 1991 (Vic) should be amended to provide that a court must have regard to current sentencing practices unless doing so would be incompatible with the standard sentence, where a standard sentence applies.
Limitations of a standard sentence scheme model
Increased complexity
7.118 Objections to standard non-parole period schemes include concern about the added complexity and the restrictions placed on judicial discretion,[738] which can lead to injustice in individual cases.
7.119 In preparing its submission, Victoria Legal Aid consulted with Legal Aid New South Wales, who reported that the standard non-parole period scheme ‘had made sentencing in NSW unnecessarily complex’.[739]
a greater degree of plea bargaining (in an attempt to avoid offences with a [standard non-parole period]), protracted litigation on the nuances and ambiguities of the scheme and several unintended ‘curiosities’.[740]
VLA opposes a defined percentage and presumptive standard sentence scheme for similar reasons – such schemes are likely to increase sentencing complexity, are resource intensive (in time and cost) and have the potential to disproportionately impact the disadvantaged.[741]
Limited evidence of effectiveness
7.122 In its 2011 report on minimum standard non-parole periods, the majority of the Queensland Sentencing Advisory Council did not support the introduction of a standard non-parole period scheme,[742] stating that:
there is limited evidence of the effectiveness of [standard non-parole period] schemes in meeting their objectives, beyond making sentencing more punitive and the sentencing process more complex, costly and time consuming. It also risks having a disproportionate impact on vulnerable offenders, including Aboriginal and Torres Strait Islander offenders and offenders with a mental illness or intellectual impairment.[743]
7.123 In its 2008 report, the Tasmania Law Reform Institute also cited the fact that there was ‘no reason to believe that specifying non-parole periods in legislation will have any impact on improving public understanding of, and public confidence in, sentencing practices’ as a reason for not recommending the introduction of a presumptive non-parole period scheme in Tasmania.[744]
7.124 Victoria Legal Aid referred to the fact that there is a lack of evidence to suggest that standard non-parole period schemes work in achieving consistency and greater public confidence.[745]
7.125 The Law Institute of Victoria submitted that the Judicial Commission’s evaluation of the standard non-parole period scheme in New South Wales indicated that the scheme had resulted in greater uniformity and consistency in sentencing outcomes but it was not possible to tell whether this was due to dissimilar cases being treated uniformly in order to comply with the regime.[746]
Lack of transparency in identifying offences and levels
7.126 In New South Wales, concerns have been raised in relation to principles that are used to identify standard non-parole period offences as well as the inconsistency and the lack of transparency in setting the presumptive non-parole period.[747]
7.127 The inconsistencies in the New South Wales standard non-parole period scheme were also raised by Victoria Legal Aid in their submission to the Council, noting the fact that for some offences, the standard non-parole period is 80% of the maximum penalty.[748]
Difficulties in applying the standard sentence
7.128 There are a number of issues that have arisen with the application of standard sentences in New South Wales, including difficulties in the assessment of the ‘objective seriousness’ of the offence.[749] Closely related to this assessment are uncertainties regarding which ‘facts or circumstances’ are to be regarded as ‘matters personal to a particular offender or class of offenders’ and therefore are to be excluded from the assessment of the objective seriousness of the offence.[750]
7.129 During consultations, one stakeholder raised a concern about the conceptualisation of the notion of a ‘standard sentence’, suggesting it might be perceived as intended to become the new median sentence. Even though the standard sentence does not represent the median sentence, the stakeholder drew attention to the possibility that sentencing judges could conflate the standard sentence with the median and feel ‘dragged’ towards the standard sentence, stating that ‘it’s hard to conceptualise a notion of standard sentences that doesn’t sound a lot like, over time, this will be the median’.[751]
7.130 A further issue raised by stakeholders was the uncertainty regarding how the standard sentence (a hypothetical offence at the middle of the range of objective offence seriousness) should be characterised. It was argued that the offence representing the standard sentence is necessarily left undefined, leaving sentencing courts and practitioners uncertain about how to navigate around the new guidepost.[752]
7.131 A number of stakeholders raised potential issues around what is and what is not an objective factor, in assessing where an offence falls with regard to the middle of the range of objective offence seriousness.[753]
7.132 Divergent views have emerged on this point in New South Wales.[754] This suggests that, with any potential Victorian standard sentence scheme, determining objective seriousness is likely to be an issue on which the court will need to provide guidance. According to one stakeholder, this will be ‘a rich vein for submissions at first instance and on appeal’.[755]
Difficulty in applying standard sentences to ‘complicity’ cases
7.133 The law of complicity provides that co-offenders who may have limited involvement in offending can still be convicted of the offence. A sentencing court can impose a sentence that appropriately reflects each co-offender’s level of culpability.[756]
7.134 The Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) amended the Crimes Act 1958 (Vic) to provide a clear statutory framework for complicity,[757] making it clear that a person who is involved in the commission of an offence (as defined) is ‘taken to have committed the offence’.[758]
Difficulty in applying the standard sentences to different forms of charges
7.136 Charges may be brought as rolled-up or representative charges, or, in particular circumstances, as ‘course of conduct’ charges.[759] Although there are differences relating to the way in which courts consider these forms of charging, they represent multiple incidents of offending behaviour.
Aggregate sentencing and the standard sentence
7.138 The Sentencing Act 1991 (Vic) provides that if an offender is convicted of two or more offences that are ‘founded on the same facts, or form, or are part of, a series of offences of the same or a similar character’,[760] 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’.[761]
7.139 The court cannot impose an aggregate sentence in relation to serious offenders or offenders who have committed an offence while on parole.[762] Serious offenders are defined under Part 2A of the Sentencing Act 1991 (Vic) as serious sexual offenders, serious violent offenders, serious drug offenders, and serious arson offenders.[763]
Enhanced guideline judgment scheme in operation with a standard sentence scheme
Recommendation 10: Guideline judgment may contain guidelines on any matter related to a standard sentence
If a standard sentence scheme is introduced, Part 2AA of the Sentencing Act 1991 (Vic) should be amended to provide that a guideline judgment may set out guidelines in respect of any matter related to a standard sentence.
Offences recommended for inclusion in the standard sentence scheme
Criteria for inclusion of offences in the standard sentence scheme
• evidence from structured community consultation identifying the community’s views on the objective seriousness of the offence;[764]
• the offence being one whereby the objective offence seriousness can be readily identified (that is, there are not overlapping or multiple ‘classes’ of offenders or ‘typologies’ of offence[765]);
7.149 The New South Wales Sentencing Council identified a similar set of principles that should apply in deciding whether to include an offence in the standard non-parole period scheme: focusing on the seriousness of the offence, whether it possesses particular harm or culpability factors, and whether the offence is noted to have been subject to a ‘pattern of inadequate sentencing’ or ‘inconsistent sentences’.[766]
7.150 The New South Wales Sentencing Council also factored in consideration of the range of offending behaviour constituted by a particular offence, recommending that the ‘fact that an offence potentially encompasses a wide range of offending behaviour should be a factor that can be considered in deciding whether to exclude an offence from the [standard non-parole period] scheme’.[767]
Stakeholders’ views
7.153 For example, Victoria Legal Aid submitted that any legislated scheme should apply to only a restricted set of offences, and that ‘[o]ffences that span a wider degree of behaviour and objective offence seriousness should be excluded’.[768]
7.154 The Criminal Bar Association of Victoria submitted that any standard sentence scheme should be limited to offences that are ‘serious, prevalent, and rightly attract the need for condign punishment’.[769] The Criminal Bar Association of Victoria identified the offence of culpable driving causing death as the ‘least amenable’ to a standard sentence, citing the variety of circumstances capable of leading to the commission of the offence, and the fact that a large cohort of those charged with this offence do not have significant prior convictions of relevance.[770]
7.155 The Council did not identify culpable driving causing death as an offence with sentencing problems such that guidance is required (see [5.289]). However, it is useful to raise culpable driving causing death as an example of an offence for which the range of objective offence seriousness is not readily identifiable. This offence has various forms of culpability, as there are both reckless and negligent forms of the offence,[771] and thus sentencing for this offence is unlikely to be assisted by a further legislated guidepost based on a single range of objective offence seriousness.
The Council’s view
Recommendation 11: Criteria for inclusion of offences in the standard sentence scheme
If a standard sentence scheme is introduced, the following criteria should apply to assessing whether an offence with identified sentencing problems is suitable for inclusion in the standard sentence scheme:
1. There is evidence from structured community consultation that identifies community views on the objective seriousness of the offence.
2. The maximum penalty is not operating as a sufficient source of guidance to the community’s and parliament’s views of the objective seriousness of the offence (for example, the maximum penalty may have been overshadowed by current sentencing practices).
3. The offence is one where the objective offence seriousness can be readily identified for the offending behaviour represented by the offence (that is, there are not overlapping or multiple ‘classes’ of offending behaviour or ‘typologies’ of offending behaviour within the one offence).
4. A standard sentence would be effective in providing guidance on the middle of the range of objective seriousness for the particular offence.
5. The courts have identified that there is a special need for general deterrence.
6. If the above criteria are met, the following considerations may also be relevant:
Attempt, conspiracy, and incitement forms of offences
Applying the criteria to identify offences suitable for inclusion in the standard sentence scheme
Sexual offences
• the community views these offences as particularly serious;[772]
• there have been several Court of Appeal cases in which the adequacy of current sentencing practices (having regard to the maximum penalty) has been questioned for various sexual offences examined by the Council;[773]
7.164 A group of these offences may relate to offenders and victims who are relatively close in age. Consent is only a defence to a charge of sexual penetration with a child 12–16 where the accused was no more than 2 years older than the victim.[774] For example, ‘consensual’ sex between a child of 15 years and 6 months and an 18 year old would be captured by the offence.
Recommendation 12: Offences with identified sentencing problems that are suitable for inclusion in the standard sentence scheme
If a standard sentence scheme is introduced, the following offences are suitable for inclusion in the scheme:
|
Offence
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Crimes Act 1958 (Vic)
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|---|---|
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Rape
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|
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Incest with child/step-child
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|
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Incest with child/step-child (under 18) of de facto
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|
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Sexual penetration with a child under 12
|
|
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Sexual penetration with a child 12–16 under care, supervision, or
authority
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|
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Sexual penetration with a child 12–16
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|
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Indecent act with a child under 16
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|
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Persistent sexual abuse of a child under 16
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s 47A
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Serious injury offences and aggravated burglary
7.172 In relation to the serious injury offences and aggravated burglary, the issues concerning the adequacy of sentencing for these offences primarily relate to specific forms of the offences (for example, ‘glassing’ forms of recklessly causing serious injury[775]), rather than to the objective seriousness of all forms of the offences.
Methodology and recommended levels
Methodology for prescribing the standard sentence
Maximum penalty as the current guidepost to offence seriousness
7.178 The maximum penalty is the primary mechanism for parliamentary expression of the gravity or seriousness of an offence. As discussed in Chapter 3 (see [3.7]–[3.11]), the maximum penalty is conceived of as a ‘navigational aid’. A judge should ‘steer by’ not ‘towards’ the maximum penalty.[776]
7.180 The maximum penalty is the first factor that a court must consider when sentencing, as specified in section 5(2) of the Sentencing Act 1991 (Vic): this is an indication of its significance.[777]
While the maximum itself is reserved for the worst example of an offence likely to be encountered in practice, it was to be expected that there would be a spread of cases across the statistical range ... To insist upon appropriate relativities between individual sentences and the maximum is to recognise that the maximum is to be treated as a sentencing yardstick ... current sentencing practices for confrontational aggravated burglary do not adequately reflect that yardstick ... where there is a conflict between the guidance afforded by the maximum penalty and that afforded by current sentencing practices, it is the maximum which must prevail.[778]
7.182 As discussed above, one criticism of the New South Wales standard non-parole period scheme is the absence of a consistent ratio between the maximum penalty and the standard non-parole period for various offences, such that as a proportion, the standard non-parole periods range from 21.4% to 80% of the maximum penalty applicable to the offence in question.[779]
Issues with using the maximum penalty as a starting point to prescribe a standard sentence
A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ... A change in a maximum sentence by Parliament will sometimes be helpful where it is thought that the Parliament regarded the previous penalties as inadequate.[780]
7.186 This assumption is problematic given the fact that there has been no holistic review of maximum penalties in Victoria since 1989, when the Victorian Sentencing Taskforce developed a principled approach to setting maximum penalties and rationalisation of the then statutory maxima.[781]
7.187 Instead, maximum penalties have primarily developed in an ad hoc fashion, with some reviews undertaken of specific areas of the law, such as sexual penetration offences, child stealing, and drug and drug-related offences. Some changes have been made as an expression of parliament’s denunciation of certain conduct, often in the wake of media attention or community concern.[782]
Identifying the range of objective offence seriousness with respect to the maximum penalty
Figure 5: Conceptualising the middle of the range of objective seriousness
Objective range of seriousness: 0% to 80% of maximum penalty
Objective/subjective range for most serious offence: 80% to 100% of maximum penalty
Middle of the range of objective seriousness: 40% of maximum penalty
7.195 Stakeholders at the Council’s discussion forum suggested that the apportioning of 20% to the subjective factors of any given offence made ‘some sense’, based on participants’ impression of what proportion of a sentence is determined by the objective seriousness of the offence, and what proportion could be said to account for subjective factors.[783]
7.196 The Council’s methodology for identifying the range of objective offence seriousness also takes into account the Court of Appeal’s statements on the appropriate sentences for serious examples of offences with regard to the maximum penalty for the offence in question.[784]
Identifying the middle of the range
Community correction orders and the range of objective seriousness
7.201 The objective range of seriousness is considered to include ‘zero’ per cent of the maximum penalty, on the basis that, post-Boulton, a lengthy community correction order (CCO) with punitive conditions may be imposed for even serious examples of offending.[785] Such a sentence would be considered ‘zero’ for the purposes of an objective sentencing range.
7.202 Stakeholders pointed out the inadequacy of treating all CCOs, even those of some length and with punitive conditions attached, as amounting to ‘zero’ with regard to the maximum penalty, for statistical purposes.[786]
a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide).[787]
Issues with identifying the current sentence imposed for an offence in the ‘middle of the range of objective seriousness’
Middle of the range is not the median
7.213 The median represents the sentence where 50% of sentences are higher and 50% of sentences are lower. The middle of the range of objective offence seriousness does not necessarily bear any relationship to the median sentence.[788] Further, the median sentence for any offence results from the instinctive synthesis of all of the facts and circumstances in a case, both objective factors relating to the offence and subjective factors relating to the offender.
Recommendation 13: Methodology for prescribing standard sentence level
If a standard sentence scheme is introduced, the standard sentence level should be prescribed at 40% of the maximum penalty for the relevant offence.
Application of methodology for prescribing standard sentences for sexual offences
Rape[789]
Offence characteristics
7.214 Rape is an indictable offence with a maximum penalty of 25 years’ imprisonment.[790] Between 1 July 2010 and 30 June 2015 (inclusive), 476 charges of rape were sentenced in Victoria’s higher courts. Over this period, a term of imprisonment was imposed on 94% of charges.
Standard sentence
Incest with child/step-child
Offence characteristics
7.217 Incest is an indictable offence with a maximum penalty of 25 years’ imprisonment.[791] Between 1 July 2010 and 30 June 2015 (inclusive), 370 charges of incest with child/step-child were sentenced in Victoria’s higher courts. Of these charges, 99% received a term of imprisonment.
Standard sentence
Incest with child/step-child (under 18) of de facto
Offence characteristics
7.220 Incest with child/step-child (under 18) of de facto is an indictable offence with a maximum penalty of 25 years’ imprisonment.[792] Between 1 July 2010 and 30 June 2015 (inclusive), 108 charges of incest with child/step-child (under 18) of de facto were sentenced in Victoria’s higher courts. Over this period, a term of imprisonment was imposed on all charges for this offence.
Standard sentence
Sexual penetration with a child under 12
Offence characteristics
7.223 Sexual penetration with a child under 12 is an indictable offence with a maximum penalty of 25 years’ imprisonment.[793] It is an aggravated form of sexual penetration with a child under 16 (which has a maximum penalty of 10 years’ imprisonment). Between 1 July 2010 and 30 June 2015 (inclusive), 202 charges of sexual penetration with a child under 10/12 were sentenced in Victoria’s higher courts. Over this period, a term of imprisonment was imposed on 83% of charges.
Standard sentence
Sexual penetration with a child 12–16 under care, supervision, or authority
Offence characteristics
7.226 Sexual penetration with a child 12–16 under care, supervision, or authority is an indictable offence with a maximum penalty of 15 years’ imprisonment.[794] Between 1 July 2010 and 30 June 2015 (inclusive), 74 charges of sexual penetration with a child 10/12–16 under care, supervision, or authority were sentenced in Victoria’s higher courts. Of this period, a term of imprisonment was imposed on 80% of charges.
7.227 Such a relationship between the offender and the victim need not be a legally recognised position of authority. In essence, it refers to ‘those who, by virtue of an established and on-going relationship involving care, supervision or authority, are in a position to exploit or take advantage of the influence which grows out of that relationship’.[795]
Standard sentence
Sexual penetration with a child 12–16
Offence characteristics
7.229 Sexual penetration with a child 12–16 is an indictable offence with a maximum penalty of 10 years’ imprisonment.[796] An offence against this section cannot be determined summarily.[797] Between 1 July 2010 and 30 June 2015 (inclusive), 858 charges of sexual penetration with a child 10/12–16 were sentenced in Victoria’s higher courts. Over this period, a term of imprisonment was imposed on 55% of charges.
1. the accused reasonably believed that the child was 16 or older; or
2. the accused was not more than 2 years older than the child; or
3. the accused reasonably believed that he or she was married to the child.
Standard sentence
Indecent act with a child under 16
Offence characteristics
7.234 Indecent act with a child under 16 is an indictable offence triable summarily with a maximum penalty of 10 years’ imprisonment.[798] It is the most prevalent of the sexual offences considered by the Council, with many cases involving multiple charges or charges in conjunction with other sexual offences. Between 1 July 2010 and 30 June 2015 (inclusive), 1,589 charges of indecent act with a child under 16 were sentenced in Victoria’s higher courts. Over this period, a term of imprisonment was imposed on 80% of charges.
7.236 An indecent act is any act that ‘right-minded persons would consider to be contrary to community standards of decency’[799] and that has a sexual connotation.[800] A sexual connotation may be demonstrated by the area of the body used by the offender, or due to the offender’s motive (that is, obtaining sexual gratification).[801] As such, an indecent act may encompass behaviour ranging from offenders rubbing their genitals in the proximity of a child under 16 to behaviour on the cusp of sexual penetration, including sexual touching of the outside of the victim’s genitals or breasts.
Standard sentence
Persistent sexual abuse of a child under 16
Offence characteristics
7.238 Persistent sexual abuse of a child under 16 is an indictable offence with a maximum penalty of 25 years’ imprisonment.[802] Between 1 July 2010 and 30 June 2015 (inclusive), 54 charges of persistent sexual abuse of a child under 16 were sentenced in Victoria’s higher courts. Over this period, a term of imprisonment was imposed on 89% of charges.
Standard sentence
Standard sentence compared to current median
Figure 6: Comparison of standard sentence with sentencing distribution, as a proportion of the maximum penalty, for select sexual offences, 2010–11 to 2014–15, higher courts
|
Offence name
|
Custodial sentence length (percentage of maximum penalty)
|
||||
|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
|
|
Sexual penetration with a child 12–16
|
1%
|
15%
|
25%
|
30%
|
50%
|
|
Persistent sexual abuse of a child under 16
|
6%
|
22%
|
24%
|
32%
|
48%
|
|
Rape
|
2%
|
14%
|
20%
|
24%
|
60%
|
|
Sexual penetration with a child 12–16 under care, supervision, or
authority
|
2%
|
17%
|
20%
|
27%
|
40%
|
|
Incest with child/step-child
|
3%
|
14%
|
16%
|
20%
|
32%
|
|
Sexual penetration with a child under 12
|
2%
|
12%
|
16%
|
16%
|
28%
|
|
Incest with child/step-child of de facto (under 18)
|
8%
|
11%
|
14%
|
18%
|
28%
|
|
Indecent act with a child under 16
|
<1%
|
8%
|
10%
|
15%
|
45%
|
Recommended levels for sexual offences
Recommendation 14: Recommended standard sentence levels for offences suitable for inclusion within the standard sentence scheme
If a standard sentence scheme is introduced, the standard sentence levels should be prescribed as follows:
|
Offence
|
Maximum penalty
|
Standard sentence
|
|---|---|---|
|
Rape
|
25 years
|
10 years
|
|
Incest with child/step-child
|
25 years
|
10 years
|
|
Incest with child/step-child (under 18) of de facto
|
25 years
|
10 years
|
|
Sexual penetration with a child under 12
|
25 years
|
10 years
|
|
Sexual penetration with a child 12–16 under care, supervision, or
authority
|
15 years
|
6 years
|
|
Sexual penetration with a child 12–16
|
10 years
|
4 years
|
|
Indecent act with a child under 16
|
10 years
|
4 years
|
|
Persistent sexual abuse of a child under 16
|
25 years
|
10 years
|
Summary of criticisms of, and issues with, a standard sentence scheme model
7.247 It is possible that the same issue experienced with baseline sentencing will arise with a standard sentence scheme; namely, the difficulty in determining the features of a ‘median’ sentence case in order to compare the case at hand with a case deserving of the median sentence.[803] The standard sentence does not provide the court with the content of which offending circumstances may represent the middle of the range of objective offence seriousness.
7.248 There is a wealth of jurisprudence, however, from both New South Wales and Victoria, which suggests that meaningful content can be given to the concept of the ‘middle of the range of objective seriousness’. Unlike the concept of a future ‘intended’ median in the example of baseline sentencing, the range of objective seriousness is a concept that is ‘known and can be understood and applied’.[804]
7.249 Despite this, as discussed at [7.11]–[7.12], there remains disagreement over whether particular factors, such as provocation or the presence of a mental illness,[805] may be considered in the assessment of objective offence seriousness, or whether they are properly considered as subjective factors of the offender. The difficulty in resolving these issues in New South Wales is a possible limitation to the operation of the scheme in Victoria, unless the court gives guidance on these issues.
Chapter 8: An aspirational model for a sentencing guidelines council
Overview
Guidance delivered by a sentencing council
Sentencing guidelines have the benefit of creating a framework for sentencing decisions, consolidating principles of sentencing for a particular offence, and providing a vehicle for consideration of ‘interrelationships of sentences for the different forms of an offence’.[806]
8.5 Other benefits highlighted by the Tasmanian Sentencing Advisory Council include ‘a significant effect on penalty levels’, increased transparency of the sentencing system and the relative severity of offences, improved public confidence in sentencing processes, maintenance of judicial discretion, and greater consistency without the need for mandatory sentences.[807]
8.6 Further, because sentencing guidelines councils are led by judicial members, they can provide practical guidance on sentencing that has legitimacy within the judiciary and that is more likely to be accepted by judicial peers.[808]
8.8 For example, by comprehensively providing guidance on all offences in Victoria, some of the legislative mechanisms that are intended to provide for particular outcomes, but currently add complexity to, and reduce the transparency of, the sentencing framework,[809] could be repealed and their purposes met within sentencing guidelines. In this way, comprehensive guidelines would serve to simplify the sentencing task.
English model
8.14 Sentencing guidelines are prepared by the Sentencing Council for England and Wales (the ‘Sentencing Council’) with the aim to ‘promote greater transparency and consistency in sentencing, while maintaining the independence of the judiciary’.[810] Every court in England and Wales must follow any relevant guidelines when sentencing an offender unless it would be ‘contrary to the interests of justice to do so’.[811]
The Sentencing Council
8.15 The Sentencing Council was established in April 2010 under the Coroners and Justice Act 2009 (UK) to replace the former Sentencing Guidelines Council and the Sentencing Advisory Panel.[812]
8.16 Guidelines delivered by the new Sentencing Council operate presumptively, meaning that they are binding upon a court, unless the court considers that it is not in the interests of justice to apply the guidelines. The Sentencing Council was established to ‘lay out the logic of judicial sentencing in such a manner as to guide sentencers but also make the process of sentencing more transparent to the public’.[813] The Sentencing Council also has targeted research and analysis functions.
8.17 The Sentencing Council consists of eight judicial members and six non-judicial members. Judicial members are appointed by the Lord Chief Justice of England and Wales and must include at least one of each of a circuit judge, a district judge, and a lay justice. Non-judicial members are appointed by the Lord Chancellor and are required to have experience in criminal defence or prosecution, policing, sentencing policy, victims of crime policy, criminological research, statistics, or offender rehabilitation. The Lord Chief Justice of England and Wales is the president of the Sentencing Council. The Sentencing Council must also be chaired by a judge of the Court of Appeal, a puisne judge of the High Court, a circuit judge, a district judge, or a lay justice.[814]
Previous sentencing bodies
8.18 The current Sentencing Council evolved from a system grounded in court-made guidance. From 1982, the Court of Appeal of England and Wales had given guideline judgments without any statutory basis.[815] In 1998, the limitations on the court to consult on the development of guideline judgments was recognised, and the Sentencing Advisory Panel was established to draft and consult on guidelines that the Court of Appeal could then choose to deliver.[816] Between 2000 and 2003, the Sentencing Advisory Panel delivered advice to the Court of Appeal on 12 occasions, with only one of those occasions not resulting in the court delivering a guideline judgment.[817]
8.19 In 2003, this process was removed from the courts in recognition that more comprehensive guidance could be delivered outside the bounds of particular appeals. The Sentencing Guidelines Council was established to deliver guidelines based on the research and consultation prepared by the Sentencing Advisory Panel, which continued in operation. Under this model, courts were required to ‘have regard to’ definitive guidelines prepared by the Sentencing Guidelines Council.[818]
8.20 The Court of Appeal of England and Wales also resumed delivering guideline judgments on its own initiative under the 2003 reforms.[819] These guideline judgments essentially operate as interim guidance while sentencing guidelines are being prepared. In 2010, there were 15 guideline judgments in operation.[820]
8.23 Importantly, the majority of sentencing in the lower courts of England and Wales is undertaken by a lay magistracy, making structured guidance particularly valuable. To this end, in addition to broad, principle-based guidelines and offence-specific guidelines, the Sentencing Council produces regular updates of its Magistrates’ Court Sentencing Guidelines, which consolidates different sources of sentencing guidance into a single manual that covers most offences that appear before the lower courts.[821] An online version of the Magistrates’ Court Sentencing Guidelines has also been created, with additional features such as searchable offences and a fine calculator.[822]
England and Wales guidelines
8.25 When preparing guidelines, the Sentencing Council has regard to a variety of factors including current sentencing practices, the need to promote consistency and public confidence, the impact of sentencing on victims of crime, the cost of sentencing options and their effectiveness in preventing reoffending, and any results from ongoing monitoring of the guidelines.[823] Guidelines are published on offence types and broader sentencing principles. When the Sentencing Council was established, it was also given the statutory duty to provide guidelines on how to apply the principle of totality and reductions for guilty pleas.[824] In addition, the Sentencing Council was given a separate power to prepare allocation guidelines (on the decision of whether a case should be tried summarily or on indictment).[825]
8.26 The sentencing guidelines prepared by the Sentencing Council provide for a staged approach to sentencing, and generally involve a nine-step process:[826]
1. determine the offence category;
2. identify the starting point and sentence range for that offence category;
3. consider any other factors that indicate a reduction;
4. apply a guilty plea reduction;
5. consider the dangerousness of the offence and the appropriateness of an extended sentence;
6. apply the totality principle (for offenders being sentenced to more than one offence);
7. make any compensation or ancillary orders;
8. give reasons for, and explain the effect of, the sentence;
9. take into consideration any time served on remand.
8.31 The Lord Chancellor or the Court of Appeal can make a proposal to the Sentencing Council that guidelines be prepared or revised, and the Sentencing Council must consider whether to do so when such a proposal is made.[827]
8.32 Importantly, there are some offences for which guidelines do not apply. For example, England and Wales have a statutory minimum sentence for the offence of murder. There have been recent calls, however, for this statutory minimum to be replaced with a comprehensive guideline.[828]
Figure 7: Determining the offence category for rape in England and Wales
|
Culpability
|
|---|
|
A
|
|
Significant degree of planning
|
|
Offender acts together with others to commit the offence
|
|
Use of alcohol/drugs on victim to facilitate the offence
|
|
Abuse of trust
|
|
Previous violence against victim
|
|
Offence committed in course of burglary
|
|
Recording of the offence
|
|
Commercial exploitation and/or motivation
|
|
Offence racially or religiously aggravated
|
|
Offence motivated by, or demonstrating, hostility to the victim based on
his or her sexual orientation (or presumed sexual orientation)
or transgender
identity (or presumed transgender identity)
|
|
Offence motivated by, or demonstrating, hostility to the victim based on
his or her disability (or presumed disability)
|
|
B
|
|
Factor(s) in category A not present
|
Sentencing Council of England and Wales, Sexual Offences: Definitive Guidelines (2013) 10. Reproduced under the Open Government Licence 3.0 (UK): www.nationalarchives.gov.uk/doc/open-government-licence/version/3/.
Figure 8: Determining the starting point and category range for rape in England and Wales
|
|
A
|
B
|
|---|---|---|
|
Category 1
|
Starting point
15 years’ custody Category range 13 – 19 years’ custody |
Starting point
12 years’ custody Category range
10 – 15 years’ custody |
|
Category 2
|
Starting point
10 years’ custody Category range
9 – 13 years’ custody |
Starting point
8 years’ custody Category range
7 – 9 years’ custody |
|
Category 3
|
Starting point
7 years’ custody Category range
6 – 9 years’ custody |
Starting point
5 years’ custody Category range
4 – 7 years’ custody |
Sentencing Council of England and Wales, Sexual Offences: Definitive Guidelines (2013) 11. Reproduced under the Open Government Licence 3.0 (UK): www.nationalarchives.gov.uk/doc/open-government-licence/version/3/.
Preparation and consultation
8.33 Building on guidelines prepared by its predecessor, the Sentencing Council has selectively, and progressively, prepared guidelines for a range of offence types, informed by evidence garnered through broad consultation, sentence monitoring, and public engagement. The Sentencing Council’s first definitive guideline was for assault (published in March 2011), and the most recent is a definitive guideline for dangerous dog offences (published in March 2016).[829]
8.35 In this way, guidelines developed by the Sentencing Council have covered all of the major sexual offences in England and Wales in a systematic and holistic fashion. In so doing, the guidelines can consider relativities between offences within a given offence category. As a result, the charging and pleading practices for any offence within that category is unlikely to be improperly affected. This can be contrasted to, for example, the ad hoc reform to the maximum penalties[830] and charging practices[831] for sexual offences in Victoria.
8.36 The appropriate starting points and category ranges are developed through consultation during the draft guidelines stage, usually through the use of consultation papers, vignette/case study testing of the guidelines, and community attitude surveys.[832]
8.37 In addition, a resource assessment must be prepared to accompany draft and definitive guidelines. This assessment must provide details on the expected effects of the guidelines and forecast resources required for additional prison places, probation provision, and youth justice services.[833] For example, the resource assessment for the sexual offences definitive guideline forecast that the guideline would result in a moderate increase in sentence length of an average of approximately six months (before guilty plea discounts), and that between zero and 180 additional prison places would be required (correlating to £0–£5 million per annum in additional resources).[834]
Evaluation of the English sentencing guidelines
• the effect of guidelines on the promotion of public confidence.[835]
Sentencing Council research
8.40 Between 1 October 2010 and 31 March 2015, the Sentencing Council was assisted in its monitoring and research functions through the Crown Court Sentencing Survey.[836] This survey was completed by all sentencing judges in the Crown Court and provided information on the sentence handed down and the factors that the sentencer had taken into account when working out an appropriate sentence.
8.41 The 2014 annual Crown Court Sentencing Survey report provides analysis of the application of the assault, burglary, and drug offences definitive guidelines.[837] In relation to harm and culpability factors, the 2014 assessment found that, as expected, cases that involved greater culpability or harm factors were more likely to receive a custodial sentence and this term of imprisonment was more likely to be longer. Similarly, low harm and culpability factors correlated with lesser likelihood of receiving a custodial sentence and greater likelihood of a shorter sentence.[838]
8.42 The distribution of offence categories across burglary and assault offences was also as expected, with the majority of offences being classified as mid-range Category 2 offences in 2014 (54% of assault offences and 52% of burglary offences). However, from 2012 to 2014, there was a slight increase in the proportion of sentences identified as the most serious Category 1 offence, with the proportion of Category 1 assault offences increasing from 22% to 33%, and Category 1 burglary offences increasing from 28% to 37%.[839]
8.44 In addition to the annual Crown Court Sentencing Survey, the Sentencing Council conducted its first analysis of the operation of a definitive guideline, the Assault Definitive Guideline, in 2015. Overall, the assessment found that sentencing severity had decreased for assault offences as a whole in the 12 months after the guideline was introduced (compared with the 12 months prior to the introduction of the guideline), largely due to the decrease in severity for the frequently sentenced offence of common assault.[840]
8.47 The qualitative review of the Assault Definitive Guideline prepared as part of the 2015 assessment found that most interviewees (from a sample of judges, magistrates, and lawyers with experience of the guidelines) were ‘generally positive about the assault guideline, especially the consistency it has brought to the sentencing process while still allowing a degree of judicial discretion’.[841] This research also identified that the guideline:
• ensures better transparency in terms of explaining sentencing.[842]
8.48 Most of the issues identified by respondents went to semantics and consistency of approach in regard to the meaning of certain factors (especially the ‘seriousness of the injury in the context of the offence’ factor). The report concluded on a quote by a magistrate respondent that ‘there are one or two factors that could be tidied up, but the way that it is written and structured helps sentencers come to a decision’.[843]
Academic analysis
8.49 According to the 2011 Crime Survey of England and Wales, only 26% of respondents were fairly confident or very confident that ‘courts are effective at giving punishments which fit the crime’, with 41% indicating that they were not very confident and 32% indicating that they were not confident at all.[844] In 2012–13, the proportion of respondents that had confidence rose to 29%, and in 2013–14 it increased to 31%.[845] While these increases were statistically significant, they still represent low levels of public confidence.
8.50 Research conducted by Pina-Sánchez and Linacre has used the Crown Court Sentencing Survey data to develop methods of measuring consistency in sentencing. The researchers developed two measures: exact matching and dispersion of residuals. Through exact matching, the researchers found a statistically significant reduction in variability of sentence length of 7.7% after the introduction of the assault guideline, and less variability in 57% of offence groups covered by the guideline. However, the second method did not find a definitive causal link between the guideline and the observed improvements in consistency.[846]
8.51 A 2012 study of public perceptions of sentencing guidelines and the lay magistracy in England and Wales found that the general population was largely unaware of the ways in which the public are involved in the development of sentencing guidelines. In particular, this research found essentially no awareness of the existence of sentencing guidelines. However, 93% of respondents thought sentencing guidelines were a good idea. Building on prior research that more informed respondents are less punitive towards specific offenders, this study demonstrated that the ‘information effect’ also extends to information regarding sentencing processes. In particular, ‘the guideline serves as a frame of reference to constrain more punitive reactions to cases’.[847]
8.52 Overall, the study found that ‘if the public were better informed about the sentencing process, public attitudes would change and public confidence in sentencing would improve’.[848] This finding highlights that, even with clearly communicated sentencing guidelines, promotion of public confidence in sentencing is reliant on significant public engagement. The study suggested that greater confidence could be achieved through further engagement by the Sentencing Council, increased reference to the guidelines in news reports, and greater articulation of the use of guidelines by sentencers in their sentencing remarks.
8.53 A 2015 analysis of judicial compliance with the definitive guideline on guilty plea reductions, based on Crown Court Sentencing Survey data, found mixed results. For offenders that submitted an early plea, 80% received the recommended one-third reduction in sentence and 98% were given a discount of more than 20%. For those who submitted an intermediate plea, 34% received a discount around the recommended 25% discount, while 49% of offenders who submitted a late guilty plea received a discount the same as or less than the recommended discount of 10%.[849]
Resourcing
8.55 Further, while it has been highlighted that the preparation and publication of sentencing statistics akin to those prepared by the Victorian Sentencing Advisory Council would assist the Sentencing Council in achieving its monitoring and public education functions (while also providing sentencing judges with measures of consistency), it is not foreseen that the Sentencing Council will be provided with the resources to collect and analyse such data.[850] This lack of data also affects the preparation of guidelines and the forecasting of guideline implications. Without adequate funding to carry out its core functions, the Sentencing Council of England and Wales is restricted in achieving its full potential.
Scottish model
8.58 Under the Criminal Procedure (Scotland) Act 1995 (UK), the High Court may ‘pronounce an opinion on the sentence or other disposal or order which is appropriate in any similar case’,[851] and Scottish courts ‘shall have regard to any relevant opinion’ pronounced in such a way.[852] These pronounced opinions are known as guideline judgments. The new Sheriff Appeal Court, which first sat on 4 November 2015, may also pronounce opinions. Any such pronouncements trigger the power of the High Court or the Sheriff Appeal Court to require the Scottish Sentencing Council to prepare sentencing guidelines.
• circumstances in which the guidelines may be departed from.[853]
8.64 The framework for the Scottish Sentencing Council was prescribed in the Criminal Justice and Licensing (Scotland) Act 2010 (UK), but the Scottish Sentencing Council was not established as an independent advisory body until 19 October 2015 due to ‘constraints on government spending’.[854] The first meeting of the Scottish Sentencing Council was on 14 December 2015. The Scottish Sentencing Council comprises six judicial members, three legal members, and three lay members (including a police constable and a victims’ representative) and is chaired by the Lord Justice Clerk.
8.65 The adoption of sentencing guidelines was first recommended by the Sentencing Commission for Scotland, which operated from November 2003 to November 2006 to advise on sentencing issues, such as the use of bail and remand, early release and supervision provisions, and consistency in sentencing.[855] The Scottish Sentencing Council model was considered in detail in a 2008 consultation paper and received wide opposition from senior judges due to concerns around judicial independence.[856]
While the independence of Scotland’s judiciary of course remains a fundamental part of the Scottish legal system, as does judicial discretion in individual sentencing decisions, the Council will help to ensure transparency and consistency in all sentencing decisions made in Scotland, as well as helping the public better understand the sentencing process.[857]
• publish guideline judgments (these are court opinions that provide guidance on sentences in similar cases).[858]
New Zealand
8.70 The legislative framework for a New Zealand sentencing council was passed in 2007, but the sentencing council was never established after a change of government in 2008. Under the Sentencing Council Act 2007 (NZ), a sentencing council chaired by a member of the judiciary and composed of five judicial members and five non-judicial members would prepare sentencing guidelines.[859]
8.73 The New Zealand Law Commission drafted the inaugural guidelines, with the intention that the sentencing council would add or review these with subsequent guidelines. The inaugural guidelines were never presented to parliament. In lieu of the new sentencing council, the New Zealand Court of Appeal continues to give guideline judgments.[860]
Sentencing council guidelines considered in other jurisdictions
8.75 An independent, but judicially dominated, Sentencing Commission was established in South Korea in 2007 to counteract concerns about sentencing disparity held both by the public and within the legal system. The commission chose to adopt an approach to sentencing guidelines modelled on the English system, and in 2009 it prepared guidelines on seven offence types.[861] These guidelines are not binding, but a judge must have regard to them and provide written reasons for any departure. In their first six months of operation, the guidelines attracted a compliance rate of 89% and a reduction in disparity.[862]
8.76 A comprehensive review of the South African sentencing system in 2000 recommended establishing a sentencing council to prepare sentencing guidelines, but this recommendation was not adopted.[863]
8.77 In Israel, a Bill to create a Starting Sentences Committee to prepare guidelines on appropriate starting points for certain offences committed under typical circumstances was proposed in 2006.[864]
Sentencing council guidelines in Victoria
Obstacles to overcome
8.79 Guidelines of the complexity and detail provided for in other jurisdictions are not currently prepared in Australia. Furthermore, the staged process of decision-making set out by these guidelines is in direct contrast to the instinctive synthesis approach taken by Australian courts (see [2.29]–[2.37]). Reforms in this area would need to address the prohibition in Australian common law of staged sentencing and prescriptive numerical guidance, as affirmed by successive decisions of the High Court.[865]
8.81 Nonetheless, further consideration of a sentencing guidelines council may promote judicial ownership of an enhanced guideline judgment scheme as well as operate as a natural product of a guideline judgment scheme that is operating proficiently. As noted by Krasnostein, even though the establishment of a sentencing guidelines council represents a ‘seismic shift’ in Australian sentencing culture, ‘the initial move to judicially-generated guidelines may normalise structured sentencing, and, in time, lead towards greater formalised involvement by sentencing councils’.[866]
Stakeholders’ views
8.83 For example, Victoria Legal Aid considered the current institutional parties (including Victoria Legal Aid, the Director of Public Prosecutions, and the Sentencing Advisory Council) as being ‘uniquely placed to assist the court’ and that ‘[m]ore proactive use of the current scheme is likely to deliver on the stated aims’.[867]
8.84 Victoria Legal Aid also recognised that ‘there are advantages of an external judge-guided body developing draft guidelines’, such as formalised community consultation processes and the ability to avoid court delays, concluding that ‘[i]f a UK-style body is contemplated, care must be taken to ensure the model adopted does not offend instinctive synthesis or compromise judicial independence’.[868]
8.85 Liberty Victoria cautioned that ‘there is already a system for guideline judgments that must take into account consistency in sentencing and public confidence’ and suggested that ‘[i]t should be used more regularly before other more radical measures are contemplated’.[869]
8.86 The Director of Public Prosecutions submitted that such a body should only be introduced if the courts demonstrate that they are incapable of managing the responsibility for issuing guidelines or if the courts seek the assistance of such a body, and until such time no non-judicial guideline scheme should be introduced.[870]
8.87 Another stakeholder considered that the ‘enactment and enforcement of the criminal law is a matter for parliament and the courts’.[871]
8.88 The Law Institute of Victoria was supportive of introducing a sentencing guidelines council, and proposed that it resemble the Sentencing Council of England and Wales. Specifically, the Law Institute of Victoria emphasised that such a body must be constituted by members of the legal community.[872] The Director of Public Prosecutions also supported greater inclusion of judicial members if a sentencing guidelines council were established.[873]
The Council’s view: a dialogue model of sentencing guidance
Membership of a new guidelines council
Content and nature of guidelines
Initiation of guidelines
Figure 9: Dialogue model of sentencing guidance
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Sentencing guidelines council
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Court of Appeal
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|---|---|
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Self-initiated sentencing guidelines council guidance
Applications for guidance
Additional functions
Sentencing courts must have
regard to guidelines prepared by the sentencing guidelines council
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Court guidance
Approval of sentencing guidelines council
guidance
Sentencing courts must have
regard to guideline judgments given by the Court of Appeal
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Development and consultation on guidelines
Other functions of the sentencing guidelines council
8.109 It is preferable that only one body be responsible for advising on sentencing issues in Victoria. The current functions of the Council would complement the task of preparing sentencing guidelines. The Council is of the view that a new sentencing guidelines council – as an essentially reconstituted Sentencing Advisory Council – should take on the Council’s compatible existing functions[874] in addition to its guideline development functions.
Constitutionality of sentencing council guidance
8.112 In Australia, state superior courts also exercise Commonwealth judicial power conferred on them by the Commonwealth Constitution and the Judiciary Act 1903 (Cth). As a result, state legislatures cannot confer powers on state courts that can be characterised as ‘repugnant to or incompatible with their exercise of the judicial power of the Commonwealth’.[875]
8.114 In Magaming v The Queen, the court held that mandatory minimum sentences were compatible with judicial power as discretion was still exercised as to the giving of a sentence and the quantum of the sentence awarded above the minimum. Further, it is the court’s duty to obey the statute when imposing a punishment, and parliament is well within its capacity to deny the court discretion.[876] As stated in Magaming v The Queen:
In very many cases, sentencing an offender will require the exercise of a discretion about what form of punishment is to be imposed and how heavy a penalty should be imposed. But that discretion is not unbounded. Its exercise is always hedged about by both statutory requirements and applicable judge-made principles. Sentencing an offender must always be undertaken according to law.[877]
8.115 While mandatory minimums transferred much of that discretion to the prosecution, the High Court held that prosecutorial decisions within a legislative framework are a well-established role of the prosecution.[878] In summary, mandatory minimum sentences were held to form one end of the ‘yardstick’ in the same manner that maximum sentences operate at the other end of the yardstick. In doing so, statutory mandatory minimums avoid contravening the common law principle of instinctive synthesis.
8.116 In relation to instinctive synthesis, the High Court has stated that the common law prohibits sentencing that involves starting points or a ‘two-tier’, staged approach.[879] Legislated guidance that creates starting points has been read down as being part of the yardstick approach to be taken into account when holistically applying instinctive synthesis. This reasoning, however, has its basis in common law, rather than constitutional considerations, and can be overridden by express legislative intention.
8.117 A staged approach was also rejected in Wong, although in those circumstances the New South Wales guideline judgment also faced constitutional invalidity. The joint judgment of Gummow, Gaudron, and Hayne JJ held that there was a distinction between guidelines that articulate principles that should underpin the determination of a sentence and prescriptive guidelines that set out expected results. In regard to ‘a guideline judgment which purports to identify a particular range of results that should be reached in future cases, rather than considerations which a judge should take in to account when arriving at those results’, their Honours held that ‘the publication of expected or intended results of future cases is not within the jurisdiction of the powers of the court’ and ‘at least begins to pass from the judicial to the legislative’.[880] Callinan J similarly noted that the prescriptive tone and operation of the New South Wales guideline suggested ‘a legislative quality, not only in form but also as they speak prospectively’.[881]
8.118 This prospective quality was found despite the fact that the promulgated guideline judgments were intended merely to provide indications. Where departure from the guidelines must be justified, this would constitute prescriptive guidance that takes on a legislative quality.[882] As noted by Donnelly:
It is not enough for the [Court of Criminal Appeal] to state that a guideline is not prescriptive ... The statement of the CCA that sentences imposed outside the ranges suggested in the guideline will attract ‘close scrutiny’ indicated that the guideline had a prescriptive effect. This is because a departure from it would evidence an error of sentencing principle.[883]
8.119 Importantly, the three guideline judgments published in New South Wales after Wong[884] still provide some indication on sentencing range (but wind back any implications of a binding nature).
8.120 While the guideline judgment in Wong[885] dealt with a Commonwealth offence, it is clear that for guideline judgments to avoid a legislative characterisation, they must not be overly prospective or binding on outcome, and instead focus on guidance regarding the approach to be taken.
8.123 In Kable, the ability for state legislatures to confer executive government functions on state court judges was recognised as valid in a persona designata capacity, unless that judicial appointment ‘gave the appearance that the court as an institution was not independent of the executive government of the State’.[886] However, it was also noted that:
there are few appointments of a judge as persona designata in the State sphere that could give rise to the conclusion that the court of which the judge was a member was not independent of the executive government.[887]
the vesting of those functions or duties might lead ordinary reasonable members of the public to conclude that the State court as an institution was not free of government influence in administering the judicial functions invested in the court.[888]
8.125 A properly constituted, judicially led sentencing guidelines council could have a similar status to the Adult Parole Board. In Kotzmann v Adult Parole Board of Victoria, it was held that the mandatory appointment of a Supreme Court judge as chairperson of the board, as well as other judicial members, was a valid appointment of a state court judge as persona designata.[889] However, the Supreme Court noted that ‘[i]ndividual views will differ as to what will erode public confidence in the court and judiciary’.[890]
8.126 Judd J found, however, that there was no impact on the perceived independence of the court as the Adult Parole Board was not made up entirely of currently serving judicial members and decisions were made collectively.[891] While executive interference in the decisions of the board was possible, there was no evidence of such interference. Further, the involvement of judges in the process could be seen as providing more independence, including ‘appropriate and independent supervision of an executive function that has the potential to be employed unfairly’.[892]
Sentencing guidelines council compatibility with separation of powers
Chapter 9: Other models of sentencing guidance considered by the Council
Overview
Changes to maximum penalties
Purposes of a maximum penalty
9.5 In summary, the maximum penalty for an offence is the highest sentence that a court can impose on a person who has been found guilty of the offence. It serves as an indication of parliament’s view of the gravity of that offence.[893] A sentencing court complies with the requirement to consider the maximum penalty in section 5(2)(a) of the Sentencing Act 1991 (Vic) by ‘steering by the maximum’ rather than ‘aiming at the maximum’.[894] Further, the High Court in Markarian held that the maximum penalty should be used as a ‘yardstick’ to be ‘taken and balanced with all of the other relevant factors’.[895]
Reviews of maximum penalties in Victoria
9.6 In 1989, the Victorian Sentencing Task Force, chaired by Frank Costigan QC, developed a principled approach to setting statutory maximum penalties and recommended a rationalisation of statutory maximum penalties under the Crimes Act 1958 (Vic) as well as a number of amendments to statutory maxima.[896]
• repeat drink-driving;[897]
• preparatory offences;[898]
• negligently causing serious injury;[899]
• breaching intervention orders;[900]
• driving while disqualified or suspended;[901] and
• sexual penetration with a child under 16.[902]
9.8 In 2012, following a reference from the Attorney-General, the Council was asked to systematically review maximum penalties for offences in the Crimes Act 1958 (Vic) that were to be included in a new Crimes Bill. Due to a change of government, however, this review was never completed.[903]
9.9 Apart from these reviews, Victoria’s maximum penalties have developed in an ad hoc fashion. For example, in 2002 the Victorian Government commissioned a review of aspects of Victoria’s sentencing laws, including the adequacy of the maximum penalties for the offences of child stealing and various drug and drug-related offences.[904]
9.10 Some maximum penalties have been individually increased to express parliament’s denunciation of certain conduct, often in the wake of a particularly bad example of an offence receiving attention in the media.[905]
9.11 Although the maximum penalty is reserved for the worst example of an offence, the jurisdictional limit is not. In other words, where an offence with a maximum penalty of more than 2 years’ imprisonment is heard in the Magistrates’ Court, the magistrate is guided by the maximum penalty in sentencing the offender, rather than the two-year jurisdictional limit. It is only if the offence warrants a sentence longer than 2 years’ imprisonment that the jurisdictional limit would apply to cap the sentence.[906] Therefore, the maximum penalty still provides a legislative guide to the relative seriousness of the offence, even if it cannot be imposed.
9.12 Where there has been an increase in the maximum penalty for an offence, however, it is expected that sentences will also increase, which will require a change to current sentencing practices.[907]
Limited guidance provided by a change in maximum penalty
9.13 As discussed at [3.16]–[3.20], a court is bound to have regard to a change in the maximum penalty. Where there has been an increase in the maximum penalty prior to the commission of the offence, the court must sentence the person in accordance with the new penalty without the benefit of a phase-in period.[908] Conversely, a reduction in the maximum penalty applies to any offence sentenced after the change.[909] This will necessitate a change to current sentencing practices.[910]
9.14 As stated at [3.19], some caution needs to be exercised in concluding that an increase to the maximum penalty for an offence necessitates an increase in sentences. An increase to the maximum penalty for an offence will demand an increase to sentences ‘whenever the increase shows that Parliament regarded the previous penalties as inadequate’.[911]
The Parliament’s function is to set the parameters for sentencing, by fixing maximum penalties. This court’s function is to ensure that, in the exercise of the sentencing discretion, sentencing judges are ‘maintaining adequate standards of punishment’ within those parameters.[912]
9.16 Ashley JA similarly held that an increase in the maximum penalty could be used to ‘dismiss the relevance of an earlier pattern of sentences upon which counsel for the prisoner had relied’.[913]
Stakeholders’ views
There needs to be consistency of maximum penalties for all sexual offences against children and adults.A stronger response for all crimes involving sexual offences against children aged [under] 12 and [under] 16 is critical. To promote the significance and seriousness of child sex offences within the broader community this response should be in line with the severity of maximum sentences for sexual offences, 25 years.[914]
Properly analysed there should be no issues with current maximum penalties. The failure lies in the refusal of the Court of Appeal to use the maximum penalties as the yardsticks in sentencing as the High Court has directed. The subordination of the maxima to ‘current sentencing practices’ has rendered the maxima nugatory.[915]
9.20 This was supported by other submissions indicating that the court ‘should give greater regard to the maximum penalty’.[916]
SAC should consider means to closing the gap between the maximum permitted, and maximum recorded sentences. If circumstances cannot be conceived that would properly attract the maximum penalty, then that maximum penalty should be reduced. If those circumstances can be articulated, then consideration should be given to reforms that permit and promote the imposition of that maximum sentence in appropriate cases.[917]
9.22 Victoria Legal Aid submitted that ‘[s]ome of the perceived lack of confidence in the sentencing system arises from a lack of understanding of the role and purpose of maximum penalties’. It suggested that ‘[t]argeted public education programs have a role to play in improving public understanding of maximum penalties and their purpose and relevance to the sentencing task’.[918]
9.23 Other submissions noted that there were no maximum penalties that were clearly too low,[919] or that require amendment.[920]
9.24 Conversely, the Director of Public Prosecutions indicated that the 25-year maximum penalty for aggravated burglary ‘is difficult to justify’.[921] The Director of Public Prosecutions also stated that the five-year maximum penalty for recklessly causing injury is ‘arguably too low’ but that doubling it to the next level of imprisonment ‘is arguably problematic in a number of contexts’.[922]
The Council’s view
9.27 The Council is not of the view that amending maximum penalties is a suitable model for providing sentencing guidance. The Council considers, however, that there may be value in a systematic and holistic review of maximum penalties, similar to the review that was proposed to coincide with a review of the Crimes Act 1958 (Vic),[923] particularly given the variety of changes to maximum penalties that have occurred since the last systematic review in 1989.[924]
Mandatory and statutory minimum sentences
Mandatory sentencing schemes
• Western Australia for repeat adult and juvenile offenders convicted of residential burglary, grievous bodily harm, or serious assault to a police officer (among other offences);[925]
• the Northern Territory for sexual offences, where the court must record a conviction and must order that the offender serve a term of actual imprisonment or a term of imprisonment that is suspended partly but not wholly;[926]
• New South Wales for murder of a police officer, or the offence of assault causing death (if committed by an adult when intoxicated);[927]
• Queensland for certain child sexual offences, murder, and offences involving multiple murders[928] (however, ‘exceptional circumstances parole’ can be sought);[929] and
• the Commonwealth for particular people-smuggling offences (without provision for exceptions).[930]
Statutory minimum sentences
9.38 For example, in South Australia, statutory minimum non-parole periods exist for the offence of murder and serious offences against the person. However, a court can fix a shorter non-parole period if it believes that a special reason exists. In determining whether such a reason exists, the statute sets out several factors to which the court can have regard. The court is not at large to take into account any factors it considers relevant.[931]
9.39 In Tasmania, for the offence of causing serious bodily harm to a police officer, the court must order a person to serve a term of not less than six months, unless the court finds that there are exceptional circumstances present in the case.[932]
9.40 In the Northern Territory, there are mandatory penalties for violent offences, which escalate according to offence level and whether the offence is a subsequent violent offence. However, there is an exceptional circumstances exemption that may be enlivened. In considering whether the circumstances of the case are exceptional, the court may have regard to ‘any other matter the court considers relevant’. However, even if exceptional circumstances are established, the court must still impose a sentence of imprisonment. Alcohol and drug intoxication is not considered an exceptional circumstance.[933]
9.41 In Victoria, statutory minimum non-parole periods were first introduced for ‘gross violence’ offences.[934] The scheme was subsequently expanded to include manslaughter in circumstances of gross violence and manslaughter by a single punch or strike (in certain circumstances).[935] For the offences of causing serious injury (either intentionally or recklessly) in circumstances of gross violence, a non-parole period of not less than 4 years must be imposed unless a special reason exists. The non-parole period for single punch or gross violence manslaughter must be not less than 10 years, unless the court finds that a ‘special reason’ exists.[936] Among other factors, the court may declare that a ‘special reason’ exists ‘if there are substantial and compelling circumstances that justify doing so’. This allows for unforeseen offence or offender circumstances that may require a penalty other than the statutory minimum.[937]
9.42 Statutory minimum non-parole periods also apply to five offences where those offences are committed against an emergency worker on duty.[938] These include the two offences of intentionally and recklessly causing serious injury in circumstances of gross violence (minimum non-parole period of 5 years), as well as the two offences of intentionally and recklessly causing serious injury (minimum non-parole period of 3 years) and the offence of intentionally or recklessly causing injury.[939] For the two offences of intentionally and recklessly causing serious injury, a minimum term in a youth justice centre also applies to sentencing young offenders (3 years and 2 years respectively).[940] During the course of this reference, legislation was introduced to extend the circumstances of these offences to include custodial officers on duty.[941]
Concerns with mandatory and minimum sentencing
• compelling judges to impose sentences that they believe to be unjust;[942]
• the disproportionate effect they have on disadvantaged or marginalised social groups;[943]
• the creation of discrepancies in the offence hierarchy.[944]
9.46 In its 2008 research paper on mandatory sentencing, the Council concluded that the disadvantages of implementing a mandatory sentencing regime weigh strongly against establishing such a scheme, and that mandatory sentencing is likely to be unsuccessful in achieving its aims of deterrence and consistency in sentencing.[945] Furthermore, several Justices of the High Court, the Law Council of Australia, the Law Institute of Victoria, and numerous other prominent organisations have in various contexts cautioned against the use of mandatory sentencing.[946]
Stakeholders’ views
As stated in previous submissions, the LIV is strongly opposed to the introduction of mandatory sentences in Victoria. As stated in the LIV’s submission to SAC on statutory minimum sentences for gross violence, the LIV strongly objects to the introduction of mandatory minimum terms of imprisonment.Mandatory sentencing does not fulfill its stated aims; mandatory penalties do not provide a significant marginal deterrent effect, reduce crime rates, or provide consistency in sentencing. By their very nature, mandatory sentencing regimes and the ‘one size fits all’ approach to sentencing leads to unjust outcomes, as offenders with unequal culpability and circumstances are sentenced to the same minimum sentence of imprisonment, or more.[947]
9.49 The Law Institute of Victoria also recommended that the current statutory minimum sentences for gross violence offences be repealed.[948]
Youthlaw maintains our opposition to sentencing options including mandatory sentences, being too prescriptive and restrictive of judicial discretion in sentencing.[949]
removes the discretion from the sentencing judge to impose a sentence that is appropriate having regard to the circumstances of the particular instance of the offence. It is contrary to the fundamental sentencing principle that the punishment should be proportionate to the seriousness of the offence having regard to the circumstances of the offender.[950]
9.52 Victoria Legal Aid was particularly critical of mandatory sentencing, stating that mandatory sentencing is ‘not supported by the rationale proposed, namely increased consistency and enhanced public confidence’, and ‘cannot be said to achieve its other stated aims’.[951] Further, Victoria Legal Aid submitted that:
Under the guise of enhancing consistency, mandatory schemes produce arbitrary and unjustly consistent outcomes, and in doing so, offend against other important principles of sentencing, including individualised justice, proportionality and parsimony.[952]
9.53 Conversely, one member of the public welcomed the reduction of discretion given to judges as ‘discretion is what confuses the community ... and leads to society questioning the delivery of just punishment’.[953] Similarly, another submission suggested that:
There would not be a need for Mandatory Sentences if sentences given to offenders were harsher and proportionate to the gravity of the offence. Unfortunately, it is ‘parity’ that currently dictates sentencing and often keeps repeating the sentencing error.[954]
9.54 Another stakeholder noted that he did not support mandatory sentencing, and that ‘[i]f the Court of Appeal would properly apply the maxima as the yardsticks they should properly represent there should be no need for mandatory sentences’.[955]
9.55 Two submissions on behalf of Victorian councils advocated for an extension of the current statutory minimums for causing serious injuries against emergency workers on duty to include the assault of authorised officers employed by Victorian councils. These submissions argued that a statutory minimum was required due to an increasing prevalence of assaults against council workers and the need for equality in protection between emergency workers and the similar work undertaken by authorised council officers.[956]
9.58 In particular, the Victims of Crime Commissioner noted that part of the current problem with sentencing lay in the fact that there is ‘no minimum term on which to base a range’. In addition, he proposed that sentences under this scheme would not be able to be served concurrently.[957]
The Council’s view
mandatory and other prescriptive schemes are unlikely to achieve their aims. To the extent that such schemes achieve some of their aims, the research indicates that they are achieved at a high economic and social cost.[958]
A significant number of both the submissions and comments received by the Council from stakeholders in consultations strongly objected to the introduction of statutory minimum sentences ... Many stakeholders were of the view that discretion is a fundamental principle of sentencing that allows a court to tailor a sentence to the unique requirements of a particular case, and consequently, any form of fixed penalty, however carefully structured, could not entirely avoid unjust outcomes.[959]
Sentencing grids
9.65 Legislation providing for a similar sentencing matrix scheme was passed in Western Australia in 2000, but it never commenced due to a change of government.[960]
United States federal scheme
9.66 The United States Sentencing Commission prepares the Guidelines Manual, which sets out all factors to be considered when sentencing an offender under federal jurisdiction, and the methods for calculating a numerical ‘offence level’ and ‘criminal history category’.[961] With reference to a sentencing table or grid, the offence level is combined with the criminal history category of the offender to identify an applicable sentence range, expressed in months.
9.70 Historically, departures from the federal grid have been limited, although following a series of U.S. Supreme Court challenges, the guidelines now operate in an advisory capacity.[962] In practice, this means that when sentencing for federal offences, a judge must calculate the appropriate sentence using the grid and then provide substantial reasons if he or she then departs from the sentence range indicated in the grid.[963]
United States state schemes
9.71 Other U.S. jurisdictions that operate mandatory sentencing grids include Minnesota, North Carolina, Oregon, and Washington.[964] Common features of these state schemes are that they replaced parole schemes in those jurisdictions and that sentencing appeals are only allowed if there has been a departure from the grid.
9.72 The Minnesota Sentencing Guidelines Commission, established in 1978, prepares guidelines to promote ‘uniform and proportional sentences’ and ‘ensure that sentencing decisions are not influenced by factors such as race, gender, or the exercise of constitutional rights by the defendant’.[965] The Minnesota felony grid provides presumptive and fixed sentences for a typical offender, with two-thirds of a sentence of imprisonment served in prison and the remaining third served on supervised release.
9.73 Felony offences are ranked with a severity level from 1 to 11. This is then combined with the offender’s criminal history score to reach a presumptive sentence and sentencing range. A separate grid operates in a similar manner for sex offenders. Courts must sentence within the grid unless there are ‘identifiable, substantial and compelling circumstances to support a departure’, and any departure from the grid must be accompanied by reasons.[966]
9.75 The Oregon Criminal Justice Commission prepares a mandatory felony grid, which has allowable upwards departures built in to the grid, and some discretion in regard to custodial and non-custodial sentences. A judge can further depart from the grid for ‘substantial and compelling reasons’, with those reasons stated on the record, although many offences are coupled with separate statutory minimum sentences.[967]
9.76 Since 2011, the Washington grid has been prepared by the Caseload Forecast Council. Departures from the Washington matrix are known as ‘exceptional sentences’ and must be explained in writing, be due to ‘substantial and compelling reasons justifying an exceptional sentence’, and comply with any separate statutory minimum or maximum terms of confinement.[968]
Key concerns about sentencing grids
9.77 There are many concerns about sentencing grids, in line with those raised in relation to other mandatory sentencing schemes.[969] One of the most common arguments against grids is that the discretion traditionally exercised by judges is transferred to prosecutorial decisions and ‘plea-bargaining’, processes that are less transparent or contestable.[970]
9.78 Sentencing grids can also be problematic as they are open to politicisation and amendments to severity during election periods. Further, they have not proven to be particularly adaptable to non-custodial options and, by nature, focus on the punitive aspects of sentencing rather than the full range of sentencing factors.[971]
9.79 The inflexibility of sentencing grids was demonstrated by the 2005 Supreme Court judgment that rendered the federal guidelines purely advisory due to the inability for sentencing judges to sentence outside the grid based on facts that the jury had not considered. This was in conflict with the right to a fair trial provided for in the Sixth Amendment to the U.S. Constitution.[972]
9.80 The sentencing grids have only had a limited effect on consistency. A 1999 evaluation of the federal guidelines (prior to them becoming advisory only) suggested that the guidelines had a modest impact on improving consistency overall, but in some types of cases, there had been no improvement and, for regional disparity, the issue had worsened.[973] Other studies have similarly found continued disparity between courts and a lack of national uniformity, despite the prescriptive nature of the federal grid.[974]
9.81 Additionally, there are concerns about the consistency of outcomes that sentencing grids are designed to achieve. Critics of uniformity caution that using grids to address disparity in sentencing can lead to ‘unjustifiable parity’ that sees two offenders receive the same sentence but with ‘unjust’ outcomes.[975] Sentencing grids were not recommended by the Australian Law Reform Commission in its inquiry into sentencing of Commonwealth offenders as it found that ‘grid sentencing inappropriately prioritises consistency over individualised justice’ and ‘has the potential to result in injustice’.[976]
Stakeholders’ views
9.82 None of the submissions received by the Council supported the adoption of sentencing grids in Victoria; all of the submissions that commented on sentencing grids strongly opposed their introduction in Victoria.[977]
As with mandatory sentencing, grids and matrix schemes have the potential to operate in an arbitrary and unjust manner, and are unlikely to be effective in promoting public confidence and enhancing consistency (in more than a superficial sense). They are too blunt an instrument to deal with the complexities of sentencing, and are likely to result in discretion being displaced, rather than reduced.[978]
The Council’s view
Guidance from juries
9.85 The 2014 Victorian Australian Labor Party Platform committed to introducing legislation to conduct a trial of a form of jury sentencing for serious indictable offences to ensure that penalties for convicted offenders reflect community standards and expectations.[979]
9.87 The commitment provided that sentencing recommendations would be made by the jury where it returned a finding of guilt for a ‘serious indictable offence’.[980]
The role of the jury in sentencing
9.89 The jury’s traditional role in a criminal trial is to determine questions of fact, and to apply the law, as stated by the judge, to those facts to determine guilt or otherwise. If a jury finds the accused guilty, it is the judge that determines sentence. There is no formally defined role for the jury in the sentencing process in Australia.[981]
Recommendations for mercy or leniency
The recommendation of a jury for leniency should always be treated with respect and careful attention. It is a recognized feature of our legal system. But a recommendation simpliciter is, after all, a recommendation only, and the Judge, on whom falls the sole responsibility of measuring the punishment within the limits assigned, must consider for himself how far it is consistent with the demands of justice that he should accede to the recommendation. But that is all.[982]
9.92 In R v Harris,[983] it was held that, in deciding what punishment to impose once a jury has delivered a guilty verdict, the judge has to form his or her own view of the facts and decide the seriousness of the crime and how severely or leniently to deal with the offender. However, the judge must not form a view of the facts that conflicts with the jury’s verdict, and must give a jury’s recommendation such weight as he or she thinks proper, but is not obliged to take the most lenient view of the facts that would support the verdict, or to assume that the jury took it.
9.93 Juries are not informed of their right to recommend leniency (and presumably severity as well) should they choose to convict. Neither the judge nor counsel for either the defence or the prosecution can expressly invite such a recommendation. Juries must make a recommendation of their own accord. To alter this approach may increase the risk of a compromised guilty verdict where the jury finds the defendant guilty on the condition that a lenient punishment be imposed.[984]
Special findings
9.95 In addition, a judge may invite the jury to answer specific questions of fact. These questions must be confined to elements of the offence identified in the indictment and not those that relate to sentence only.[985] However, the special findings of the jury on the questions of fact may indirectly influence the sentence.
New South Wales Law Reform Commission report on the role of juries
9.96 In August 2007, the New South Wales Law Reform Commission (‘the Commission’) published its report, Role of Juries in Sentencing.[986] This report included:
there is little or no evidence from the jurisdictions we have studied to suggest that juror involvement in sentencing decisions produces fairer, or more reasoned and consistent, sentencing outcomes. There is, however, a plethora of academic commentary highlighting the drawbacks of jury sentencing. Consequently, we are of the view that overseas experiences of jury sentencing offer no support for the proposal to involve NSW juries in sentencing to any greater degree than at present.[987]
• the practical and procedural difficulties in implementing the proposal were so significant as to render it unworkable in any event.[988]
Community standards and expectations
9.101 As the Tasmanian Jury Sentencing Study has found, public opinion on sentencing is ‘multi-dimensional and contingent on particular circumstances’.[989] It is not possible for one jury to represent the views of the community as a whole. The study found ‘a striking disparity in attitudes to different types of offences’.[990] The study also found that:
9.103 It has been suggested that jury sentencing helps to legitimate the final result.[991] Others suggest that it is a cynical exercise designed ‘to make jurors scapegoats for unpopular sentencing decisions’.[992] Jurors could become the recipients of the same sorts of criticism levelled at judges over sentencing decisions. Furthermore, any division between the judge and the jury, particularly in high profile cases, would be reported in the media, reducing public confidence in the sentencing process.
Practical and procedural issues
Instruction on sentencing law
9.106 Additional direction on sentencing may also be necessary. For example, the jury’s recommendation on an appropriate range of the non-parole period would be based on the jury’s view or views of the facts. The law requires that, when sentencing, the judge must decide mitigating facts on the balance of probabilities, and aggravating factors beyond reasonable doubt. Left uninstructed, there is a risk that a jury may accept an aggravating factor without being satisfied of the applicable criminal standard. The offender’s psychiatric condition or intellectual disability and the relevance of the Verdins principles[993] is another example of where complexity commonly arises in the sentencing process and where the jury would require instruction.
Timing of recommendation
9.110 As noted by the New South Wales Law Reform Commission, it would be very difficult to coordinate a hearing around the availability of 12 jurors, the judge, and counsel for both sides.[994] Apart from the inconvenience this would cause jurors, any work or family commitments, ill health, or overseas or interstate travel may make it difficult or impossible for all members of the jury to reconvene for the sentencing hearing. Victoria’s Chief Crown Prosecutor had similar concerns in his submission: ‘[r]etaining a jury to sentence, often months after the conclusion of a trial, is unworkable’.[995]
9.111 Very few jurors return voluntarily to observe a sentencing hearing, indicating that they are either keen to end their association with a case or simply too busy to attend. Requiring juries to commit even more time to the criminal trial process through participation in the sentencing hearing may increase the rate at which those called for jury duty seek an exemption or ask to be excused. Furthermore, concerns regarding personal safety may also increase, if jurors were required to participate in the sentencing process.[996]
Interplay when the case has a complex mix of counts
Compromise verdicts
Lack of jury consensus on the sentencing range
Divergence in sentencing practices
9.119 There is also a risk of increasing disparity because a jury would only be recommending a sentencing range on a one-off basis, without the benefit of a broader view of offending and sentencing practice. Furthermore, if jury sentencing recommendations result in a clear trend towards increased sentences, it may unduly influence an accused to plead guilty.[997]
9.120 When the findings of the Tasmanian Jury Sentencing Study were applied to the proposed Victorian model, it was concluded that limiting jurors’ recommendations to the length of the non-parole period in cases of serious indictable offences may cause problems. The results of the Tasmanian study suggest that there could be a significant proportion of jurors who would not want to recommend an immediate sentence of imprisonment (more than one-third of sentence recommendations in the Tasmanian Jury Study were for a non-custodial sentencing option). Warner and Davis noted that it was unclear how recommendations for non-custodial sentencing options would be treated. If they were excluded, the jury’s recommendation may reflect ‘a distorted and more punitive view of community expectations’.[998]
9.121 While in general, marginally more jurors in the Tasmanian study suggested a more lenient sentence than the judge, jury input could lead to harsher sentences for some offence types. Of concern was that lenient jurors were more malleable than punitive jurors and thus more open to influence from more punitive jurors.[999] Warner and Davis also suggested that these jurors were also more likely to adopt the judge’s view on a more severe sentence, if the judge gave an indication of his or her own view before seeking the view of the jury.[1000]
Jurors opposed to making sentence recommendations
A majority of those interviewed were not comfortable with making recommendations about the sentence to be imposed, citing lack of expertise, concerns about objectivity and consistency and concerns about the increased burden of asking jurors to be involved in an additional task after delivery of the verdict.[1001]
9.123 A number of jurors who were interviewed as part of the study indicated that jury service was a draining process and that to be required to participate in the sentencing process would be very burdensome.[1002]
9.124 Interviewed jurors who favoured the idea of involving jurors in the sentencing process indicated that it was unlikely that there would ever be agreement among a jury on an appropriate sentence range. Other interviewed jurors suggested that members of the jury make a recommendation to the judge of where they considered the offending to sit on a scale of severity rather than indicate a view on an appropriate sentence.[1003]
Stakeholders’ views
9.126 None of the submissions received by the Council expressed support for jury sentencing. Those that addressed jury sentencing considered it both undesirable and impractical.[1004]
insuperable problems of practicality and law which militate against the jury being involved in the sentencing process ... the practical difficulties associated with such a process would be considerable. It would add to the complexity of the plea hearing, the time taken for such hearings, and place a significant additional burden on the jurors.[1005]
9.128 Liberty Victoria supported the findings of the New South Wales Law Reform Commission as evidence that jury sentencing should not be introduced in Victoria.[1006]
Not only is this proposal likely to lead to greater inconsistencies (which may diminish public confidence), it may also discourage jury service and adversely impact on a defendant’s right to a fair hearing. It may distract jurors from their primary task.[1007]
The Council’s view
9.133 As the New South Wales Law Reform Commission noted, ‘public policy and sentencing legislation should not be founded on untested assumptions as to what the community wants or expects’.[1008] Such policies often assume a punitive public, ‘but a large body of research shows this assumption is at best overstated and at worst simply wrong’.[1009] The Tasmanian Jury Sentencing Study provides further evidence that the majority of jurors think judges impose appropriate sentences, although this confidence varies between offences. The Study also found that the majority of jurors surveyed did not think that jurors should be involved in the sentencing process.
Recommendation 15: Recommendation against jury sentencing
Jury sentencing should not be introduced in Victoria.
Chapter 10: Assessing and enhancing public confidence in the criminal justice system
Overview
Gauging informed public opinion on sentencing
10.6 The Council considers that, in addition to providing a sound evidence base for policy development, gauging informed public opinion on sentencing (as part of the Council’s statutory functions[1010]) is an essential part of promoting public confidence in sentencing. Through its financial and in-kind support of both the Victorian Jury Sentencing Study[1011] and the National Jury Sentencing Research Project,[1012] the Council aims to address this need.
Recommendation 16: Comprehensive research on informed public opinion regarding sentencing
The Attorney-General should consider commissioning comprehensive research to gauge informed public opinion regarding sentencing in Victoria with the aim of ensuring that future reform is appropriately evidence-based. The research could occur independently of the Sentencing Advisory Council, or through a sufficiently resourced reference to the Council.
Publication of sentencing remarks
10.11 The Supreme Court and the Court of Appeal publish, as a matter of course, all appropriate sentencing remarks and judgments through the Supreme Court website[1013] and through the Australian Legal Information Institute website (‘AustLII’).[1014] On occasion, the Supreme Court also releases audio or video of the judge’s sentencing remarks as delivered in court (and edited where required).[1015]
10.12 The County Court also currently publishes select sentencing remarks on the ‘Recent Decisions’ pages of its website[1016] as well as through AustLII.
10.13 As a proportion of sentenced cases, far fewer sentencing remarks are published by the County Court than by the Supreme Court or the Court of Appeal. This is no doubt due to the workload of the County Court, given that it is the major trial court in Victoria and the major court for the sentencing of matters determined on indictment.[1017]
10.14 The task of sentencing is an onerous one, and one that, as the Council acknowledges (see Chapter 2), has become increasingly complex. The workload of judges in this regard has consequently increased. Similarly, as ‘the number, complexity and length of trials increases’[1018] there are competing demands on a judge’s time both in and out of court (for example, when decisions have been reserved for consideration).
10.15 Further, it is important to acknowledge that the primary purpose of sentencing remarks is to convey to the offender the reasons for the sentence. Conveying the reasons for sentence to any victims, for example, or to the community as a whole is essentially a secondary purpose. As a result, sentencing remarks may not be prepared in such a way that they are intended for broader publication.[1019] Indeed, published remarks would most commonly be revised from a transcript and edited, particularly in order to comply with the requirements of the Judicial Proceedings Reports Act 1958 (Vic), which prevents the identification of victims of sexual offences.[1020] Even where assistance is provided by judicial staff, such revision and editing necessarily requires judicial oversight and therefore increases the work of the sentencing judge.
Importance of public access to sentencing remarks
All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.
Publication furthers general deterrence
10.20 The Council’s recent report on current sentencing practices for major driving offences found that general deterrence (along with the seriousness of the harm caused) is a predominant consideration in sentencing such offences.[1021]
general deterrence must be given considerable weight in sentencing an offender for dangerous driving causing death or serious injury. Members of the public must recognise that a person who kills or injures another while driving dangerously is likely to receive a significant term of imprisonment.[1022]
Publication of remarks and family violence
The Commission agrees that publicising the court’s sentencing reasons more widely and regularly is an important part of influencing the practices and attitudes of people in the justice system, and in the wider community....
A stronger focus on family violence matters in the media has helped to highlight the nature and gravity of this type of offending. Comprehensive media coverage is likely to have a greater influence on public awareness than any other single avenue. However, the Commission encourages the Victorian Government to investigate other, more targeted mechanisms—for example, via court websites, the Law Institute of Victoria, the Victorian Bar Council and the Judicial College of Victoria—to ensure significant sentencing reasons are published regularly.[1023]
• create a resource that can be shared online, through such avenues as social media, potentially reaching a far larger audience than the current circulation of all Victorian newspapers.[1024]
Use of plain language in sentencing remarks
10.27 Victoria Legal Aid submitted that ‘[t]here needs to be renewed emphasis on the community’s ability to access and understand the law’[1025] and suggested that:
Public confidence and consistency can be greatly enhanced by a clear, plain language explanation of the factors taken into account in sentence and their weighting. A clear statement of reasons (publicly available, where appropriate) provides greater clarity for clients on sentencing outcomes and appeal prospects, and facilitates ‘community and media understanding of the process (including apparent superficial inconsistencies)’.[1026]
10.28 Victoria Legal Aid further submitted that sentencing remarks could also be complemented by more extensive publication of ‘[p]lain language summaries, published at the same time as sentencing reasons ... particularly for high profile, controversial cases’.[1027]
Recommendation 17: Publication of sentencing remarks online
Victorian higher courts should publish online the sentencing remarks for every case, unless:
Sufficient resources should be made available to all higher courts in Victoria to enable publication of sentencing remarks to occur, including resources that would allow for the editing of sentencing remarks to comply with the requirements of the Judicial Proceedings Reports Act 1958 (Vic).
Review of the Victorian sentencing framework
10.31 Regardless of the effect of schemes on sentencing outcomes (which has not been separately measured by the Council), it has been argued that the net effect of such schemes has been a marked increase in the complexity of the sentencing exercise,[1028] particularly (but not exclusively) for sentencing judges in the higher courts.
Stakeholders’ views
10.35 The Law Institute of Victoria submitted that the ‘minimum sentences for gross violence should be repealed’,[1029] while Victoria Legal Aid submitted that:
Rather than just overlaying the Sentencing Act with yet another scheme, consideration must be given to whether current provisions are fit for purpose, sufficiently clear and internally consistent. Baseline and statutory minimum sentencing provisions should be repealed ... and serious consideration should be given to the efficacy and inter-relationship of other sentencing schemes (for example the serious offender provisions).[1030]
10.36 The Director of Public Prosecutions noted that the existing schemes within the Sentencing Act 1991 (Vic) ‘all add to the complexity of sentencing and sentencing law, but with some variation, they appear to have limited impact on outcomes’.[1031]
The [Continuing Criminal Enterprise Offenders] scheme is probably the least effective of these schemes, and it is doubtful that its repeal would have any impact on sentencing outcomes.The serious offender scheme probably does have some marginal impact on individual sentences. That impact should be replicable in any reformed sentencing guidance scheme, without the need for schedules of special offences, qualification rules, and modified approaches to sentencing principle and sentencing methodology.
The new minimum sentence schemes, once applied, should have a substantial impact on sentencing outcomes. The capacity of any reformed sentencing guidance scheme to substitute for the desirable products of these schemes, and to avoid their undesirable features should be a strong criterion in the selection of that new scheme.
The indefinite sentence scheme requires different consideration, governed mainly by an assessment of whether expansion of the continued supervision and detention schemes offers a preferable means of promoting community protection.[1032]
The Council’s view
Recommendation 18: Review of sentencing schemes within the Sentencing Act 1991 (Vic)
The Attorney-General should consider reviewing, or requesting that the Sentencing Advisory Council review, the various sentencing schemes within the Sentencing Act 1991 (Vic) with the aim of ensuring that there is a coherent and transparent sentencing framework in Victoria.
The review should consider whether there is evidence of the need to amend or repeal any of the sentencing schemes within the Sentencing Act 1991 (Vic), including:
Ongoing public education on sentencing
Education and public confidence in the criminal justice system
A commonly held view in many countries is that violent crime is spiralling out of control, that judges are out of touch with reality, and that sentences are far too lenient for crimes being committed. Although this perception is not supported by statistics, it nevertheless remains a powerful tool, often acting as a catalyst for reform and influencing the decisions of policy makers.[1033]
10.44 A number of studies, including the Tasmanian Jury Sentencing Study[1034] and, more recently, the Victorian Jury Sentencing Study,[1035] show that members of the public are far more likely to consider a sentence as appropriate when they:
10.45 This finding confirms prior research, including the Council’s own work in this area.[1036] These findings also hold true across a number of different jurisdictions.[1037]
Education as a means of increasing public confidence
Opportunities to collaborate with criminal justice stakeholders
10.50 While education of the public on sentencing remains a key focus of the Council’s work, it is necessarily limited by its available resources and the competing demands for those resources in fulfilling its statutory functions.[1038]
it is clear that more meaningful engagement and understanding of the criminal justice system are critical to improving public confidence. More needs to be done to ‘deal the public in’ in the debate about sentencing and punishment ... As with other key institutions, VLA has an educative role to play. VLA also has a role in challenging uninformed public perceptions as part of our legislative mandate to ‘dispel fear and distrust’.[1039]
Appendix 1: Consultation
Meetings/forums
|
Meeting/forum
|
|
|---|---|
|
17 December 2015
|
Preliminary meeting with the President of the Court of Appeal and a justice
of the Court of Appeal
|
|
13 January 2016
|
Conference call with Hugh Donnelly, Director of Research and Sentencing,
Judicial Commission of New South Wales
|
|
29 January 2016
|
Meeting with Magistrate Rozencwajg
|
|
3 February 2016
|
Meeting with Victoria Legal Aid
|
|
4 February 2016
|
Meeting with Supreme Court Justices and Justices of the Court of
Appeal
|
|
5 February 2016
|
Meeting with Magistrates of the Magistrates’ Court of Victoria
|
|
8 February 2016
|
Meeting with the Chief Judge and Judges of the County Court of
Victoria
|
|
9 February 2016
|
Meeting with the Victims of Crime Commissioner
|
|
11 February 2016
|
Meeting with a number of Crown Prosecutors
|
|
12 February 2016
|
Meeting with the Director of Public Prosecutions and the Office of Public
Prosecutions Victoria
|
|
1 March 2016
|
Sentencing Guidance Stakeholder Discussion Forum
|
Submissions
|
Date received
|
Person/organisation
|
|
|---|---|---|
|
1
|
18 December 2015
|
G. Silbert
|
|
2
|
13 January 2016
|
Anonymous
|
|
3
|
28 January 2016
|
C. Murphy
|
|
4
|
29 January 2016
|
Youthlaw
|
|
5
|
1 February 2016
|
Whitehorse City Council
|
|
6
|
1 February 2016
|
Anonymous
|
|
7
|
1 February 2016
|
Victorian Women’s Trust
|
|
8
|
1 February 2016
|
M. Wootten
|
|
9
|
4 February 2016
|
C. Politi
|
|
10
|
8 February 2016
|
Liberty Victoria
|
|
11
|
8 February 2016
|
Law Institute of Victoria
|
|
12
|
11 February 2016
|
Criminal Bar Association of Victoria
|
|
13
|
12 February 2016
|
Victoria Legal Aid
|
|
14
|
12 February 2016
|
Director of Public Prosecutions
|
|
15
|
16 February 2016
|
Victims of Crime Commissioner
|
|
16
|
19 February 2016
|
Local Government Professionals Inc.
|
Appendix 2: Notes on methodology: quantitative data analysis
Appendices 2 to 6 present offence-specific analysis applying the Council’s measures for assessing the 23 possible problem offences, as described in Chapter 5. The main source of quantitative data analysed by the Council is sentences imposed on charges in the higher courts between 1 July 2010 and 30 June 2015 (the ‘reference period’).
This analysis includes sentences changed by the Court of Appeal for charges of each offence following a successful appeal against sentence (where such decisions were available to the Council as at January 2016).
All percentages in figures and tables are rounded to zero decimal places and may not sum to 100%. Percentages described in the text are also rounded to zero decimal places, but may comprise the sum of unrounded data; therefore, percentages in the text may not exactly match the sum of percentages shown in figures and tables.
Distribution of sentences and comparison with maximum penalty
Tables listing the number and percentage of sentence types imposed include aggregate sentences and combined sentences. The labelled sentence type is the most serious sentence in the combination. For example, a combined sentence involving a community correction order and a fine is labelled as a community correction order. Aggregate sentences are excluded from sentence length analysis.
For the purposes of comparing sentences to the maximum penalty, only immediate custodial sentences are included. For the offences where the maximum penalty is life imprisonment, such as murder, the maximum penalty has been given the numeric value of 40 years’ imprisonment. While some life sentences for murder did not receive a non-parole period, 40 years is five years longer than the longest non-parole period imposed for murder in the period examined. This 40-year value is not based on any analysis of actual time served by offenders sentenced to life imprisonment in Victoria. The age of offenders sentenced to life imprisonment for murder in this period ranged from 21 to 57 (median 40 years), and 40 years is assumed to represent the remainder of the natural life of the majority of offenders sentenced to life imprisonment for murder. The 40-year value ascribed to life imprisonment for the purposes of the Council’s analysis does not affect the calculation of median sentence length (in years) for murder.
When a partially suspended sentence is imposed, judges typically assign a term of imprisonment to individual charges before imposing a total effective imprisonment term on the case as a whole, part of which is then suspended. This means that the suspended part of an imprisonment term is not nominated for individual charges. In the sentencing data available to the Council, where a case receives a partially suspended sentence, the sentence type for each charge is recorded as a partially suspended sentence. However, the recorded length actually reflects the full imprisonment term imposed on the charge. Although imprisonment terms, wholly suspended sentences are not counted as custodial sentences in this report.
The comparison of the distribution of sentence lengths imposed on charges with the maximum penalty for that offence is presented in two ways:
Immediate custodial sentence lengths over time
The sentences imposed in each financial year over the reference period are presented by boxplots for each year.
Each boxplot represents the distribution of immediate custodial sentence lengths imposed in each financial year. The bottom bar represents the shortest 25% of sentences, the box represents the middle 50% of sentences, and the top bar represents the longest 25% of sentences. The middle line in the box represents the ‘yearly distribution median’, being the median sentence for all sentences imposed in that year. Yearly distributions and medians are of limited value for assessing the consistency of sentencing where there has only been a small number of charges sentenced in a year. See Figure A71 as an example.
The red dots represent the ‘cumulative median’ of all immediate custodial sentence lengths imposed between July 2010 and the end of that financial year, with the 2014–15 red dot indicating the median of the entire reference period. For the offences analysed, the sentences imposed in each consecutive year were added to the sample from which a ‘cumulative median’ was calculated. These graphs show that distributions may not be consistent in consecutive years and the effect on the median resulting from an increase in sentence lengths in one year may be masked by a decrease in sentence lengths in a subsequent year. See Figure A27 as an example.
The horizontal axis displays the financial year and the number of charges receiving an immediate custodial sentence in that period.
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary for definitions).
A small IQR or MAD value may indicate that the charges in the sample represent similar offending. Alternatively, a small IQR or MAD value may indicate that there is unjustified consistency between charges that represent different offending. These measures are therefore limited without accompanying qualitative analysis of sentencing remarks to identify the circumstances of the case in which charges are sentenced.
Appendix 3: Fatal offences data
Offence 1. Murder
Definition: Killing a person by an act that is intended to kill or cause really serious injury to 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.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 112 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: No.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): No. Not an aggravated offence, although murder of an emergency worker on duty has a higher baseline sentence of 30 years.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Yes. Community attitudes research (Sentencing Advisory Council, 2012):
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Murder consistently viewed as the most serious crime a person can commit; recognition of long-term individual and societal harms; more awareness and concern of family violence (killing of partners and children) and alcohol-related violence.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = life imprisonment.
Baseline offence (baseline sentence of 25 years); baseline is 30 years for aggravated form of murdering an emergency worker while on duty.
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: No. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: No. Note, however, recent case of Director of Public Prosecutions v Daing [2016] VSCA 58 (31 March 2016). The Court of Appeal commented that some sentences imposed for ‘murder of domestic partners raise an important question as to whether current sentencing practices adequately reflect the seriousness with which such cases generally ought to be viewed ... it might be queried whether, generally speaking the tariff for such killings is too low’.
No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning: No. See sentencing data below: ‘immediate custodial sentence lengths over time’
n.a.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: No.
Weight given to aggravating and mitigating factors: No. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 6 years (18 years to 24 years).
Median Absolute Difference (MAD) = 2 years and 6 months.
Categorisation of the objective seriousness of the offence: No. Has the highest median of all offences, which reflects its ranking as the most serious offence.
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 112 charges of murder were sentenced in the higher courts. Murder carries a maximum penalty of life imprisonment.
All charges of murder were sentenced to imprisonment (Table A1).[1040]
Table A1: Number and percentage of charges of murder, by sentence type imposed, 2010–11 to 2014–15
|
Sentence type
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
112
|
100%
|
The non-life immediate custodial sentences imposed over the five years ranged from 10 years and 9 months to 29 years (Table A2). Fifteen (13%) life sentences were imposed. The median custodial sentence length of 20 years is 50% of the maximum penalty.
Table A2: Descriptive statistics of custodial sentences imposed for charges of murder, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
112
|
|
Immediate custodial sentences
|
112
|
|
Percentage immediate custodial
|
100%
|
|
Shortest
|
10 years and 9 months
|
|
Median
|
20 years
|
|
Longest
|
Life
|
|
Years from median to maximum penalty
|
20 years
|
|
Median % of maximum penalty
|
50%
|
The distribution of immediate custodial sentence lengths in Figure A1 shows that sentences between 19 years and 6 months and 20 years were most common. Excluding life sentences, 9% of sentences were more than 25 years.
Figure A1: Percentage of immediate custodial sentences imposed for charges of murder, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤10
|
–
|
|
≤10.5
|
–
|
|
≤11
|
1%
|
|
≤11.5
|
–
|
|
≤12
|
–
|
|
≤12.5
|
–
|
|
≤13
|
1%
|
|
≤13.5
|
–
|
|
≤14
|
3%
|
|
≤14.5
|
1%
|
|
≤15
|
2%
|
|
≤15.5
|
–
|
|
≤16
|
–
|
|
≤16.5
|
3%
|
|
≤17
|
5%
|
|
≤17.5
|
3%
|
|
≤18
|
9%
|
|
≤18.5
|
2%
|
|
≤19
|
9%
|
|
≤19.5
|
–
|
|
≤20
|
18%
|
|
≤20.5
|
–
|
|
≤21
|
5%
|
|
≤21.5
|
–
|
|
≤22
|
6%
|
|
≤22.5
|
–
|
|
≤23
|
4%
|
|
≤23.5
|
–
|
|
≤24
|
4%
|
|
≤24.5
|
–
|
|
≤25
|
2%
|
|
≤25.5
|
–
|
|
≤26
|
4%
|
|
≤26.5
|
–
|
|
≤27
|
2%
|
|
≤27.5
|
–
|
|
≤28
|
3%
|
|
≤28.5
|
–
|
|
≤29
|
1%
|
|
Life imprisonment
|
13%
|
As a percentage of the life imprisonment maximum penalty for murder, 24% of custodial sentence lengths were more than 60% of the maximum penalty (Figure A2).
Figure A2: Percentage of immediate custodial sentences imposed for charges of murder, by the percentage of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
0
|
–
|
|
≤10%
|
0
|
–
|
|
≤15%
|
0
|
–
|
|
≤20%
|
0
|
–
|
|
≤25%
|
0
|
–
|
|
≤50%
|
62
|
55%
|
|
≤75%
|
35
|
31%
|
|
≤100%
|
15
|
13%
|
Immediate custodial sentence lengths over time
The 112 (100%) custodial sentences imposed over the entire period had a median length of 20 years (Table A2). Figure A3 shows that the charges sentenced in each financial year had consistent distributions, and the 20-year cumulative median remained from 2010–11 to 2014–15. The median immediate custodial sentence was 21 years in both 2013–14 and 2014–15.
Figure A3: Yearly distribution and cumulative median immediate custodial sentence length imposed for charges of murder, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
26
|
14
|
17.125
|
20
|
23.75
|
Life
|
20
|
|
2011–2012
|
25
|
13
|
18.5
|
20
|
26
|
Life
|
20
|
|
2012–2013
|
24
|
14
|
17.875
|
20
|
22
|
Life
|
20
|
|
2013–2014
|
19
|
16.5
|
20
|
21
|
27
|
Life
|
20
|
|
2014–2015
|
18
|
10.75
|
19.25
|
21
|
24.25
|
Life
|
20
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A4 shows these two measures for the offence of murder.
The IQR was 6 years, and it ranged from 18 years to 24 years.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 20 years. The median of these differences, the MAD value, is 2 years and 6 months. This means that 50% of custodial sentence lengths are less than 2 years and 6 months from the median (between 17 years and 6 months and 22 years and 6 months) and 50% are further than 2 years and 6 months from the median.
Figure A4: Boxplot distribution of immediate custodial sentence lengths imposed for charges of murder, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
10.75
|
|
First quartile
|
18
|
|
Median
|
20
|
|
Third quartile
|
24
|
|
Longest
|
Life
|
|
MAD lower limit
|
17.5
|
|
MAD upper limit
|
22.5
|
Offence 2. Manslaughter
Definition: Killing a person by an act that would constitute murder or infanticide 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 (‘manslaughter – suicide pact’).
Involuntary manslaughter – killing a person by an act that is not intended to kill or really seriously injure someone where:
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 83 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: No.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): No. Not an aggravated offence, although some forms of manslaughter attract a minimum non-parole period of 10 years (circumstances of gross violence and one-punch manslaughter).
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Inconclusive. Community attitudes research (Sentencing Advisory Council, 2012):
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Recognition of long-term individual and societal harms; more awareness and concern of family violence (killing of partners and children) and alcohol-related violence.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 20 years.
Mandatory minimum non-parole period of 10 years introduced for manslaughter committed in circumstances of gross violence and one-punch manslaughter.
(Not a baseline offence.)
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: No. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: No. Instead noted that range of seriousness and penalties for manslaughter is wide: Sherna v The Queen [2011] VSCA 242; (2011) 32 VR 668.
No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning: No. See sentencing data below: ‘immediate custodial sentence lengths over time’
n.a.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: No. No evidence found in small sample of sentencing remarks.
Weight given to aggravating and mitigating factors: No. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 3 years (6 years to 9 years).
Median Absolute Difference (MAD) = 1 year and 6 months.
No evidence found in small sample of sentencing remarks.
Categorisation of the objective seriousness of the offence: No. Significantly higher median compared with other offences viewed by the community to be as serious (aggravated burglary, culpable driving causing death, negligently causing serious injury).
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 83 charges of manslaughter were sentenced in the higher courts. Manslaughter carries a maximum penalty of 20 years’ imprisonment.
Imprisonment was the most common sentence imposed for charges, and 98% of sentences imposed were immediate custodial sentences (Table A3).[1041]
Table A3: Number and percentage of charges of manslaughter, by sentence type imposed, 2010–11 to 2014–15
|
Sentence type
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
79
|
95%
|
|
Partially suspended sentence
|
1
|
1%
|
|
Youth justice centre
|
1
|
1%
|
|
Wholly suspended sentence
|
1
|
1%
|
|
Adjourned undertaking with conviction
|
1
|
1%
|
|
Total
|
83
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 3 years to 13 years (Table A4). The median custodial sentence length of 8 years is 40% of the maximum penalty.
Table A4: Descriptive statistics of immediate custodial sentences imposed for charges of manslaughter, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
83
|
|
Immediate custodial sentences
|
81
|
|
Percentage immediate custodial
|
98%
|
|
Shortest
|
3 years
|
|
Median
|
8 years
|
|
Longest
|
13 years
|
|
Years from median to maximum penalty
|
12 years
|
|
Median % of maximum penalty
|
40%
|
The distribution of immediate custodial sentence lengths in Figure A5 shows that sentences between 7 years and 6 months and 8 years were most common. Overall, 9% of sentences were more than 10 years.
Figure A5: Percentage of immediate custodial sentences imposed for charges of manslaughter, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤2.5
|
–
|
|
≤3
|
5%
|
|
≤3.5
|
–
|
|
≤4
|
5%
|
|
≤4.5
|
1%
|
|
≤5
|
6%
|
|
≤5.5
|
5%
|
|
≤6
|
5%
|
|
≤6.5
|
1%
|
|
≤7
|
9%
|
|
≤7.5
|
6%
|
|
≤8
|
17%
|
|
≤8.5
|
9%
|
|
≤9
|
9%
|
|
≤9.5
|
1%
|
|
≤10
|
12%
|
|
≤10.5
|
–
|
|
≤11
|
7%
|
|
≤11.5
|
–
|
|
≤12
|
–
|
|
≤12.5
|
–
|
|
≤13
|
1%
|
As a percentage of the 20-year maximum penalty for manslaughter, 17% of custodial sentence lengths were 25% of the maximum penalty or less (Figure A6).
Figure A6: Percentage of immediate custodial sentences imposed for charges of manslaughter, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
0
|
–
|
|
≤10%
|
0
|
–
|
|
≤15%
|
4
|
5%
|
|
≤20%
|
4
|
5%
|
|
≤25%
|
6
|
7%
|
|
≤50%
|
60
|
74%
|
|
≤75%
|
7
|
9%
|
|
≤100%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 81 (98%) custodial sentences imposed over the entire period had a median length of 8 years (Table A4). Figure A7 shows that the yearly distributions of custodial sentences were largely consistent. Charges sentenced each financial year established a cumulative median sentence length of 8 years from 2012–13 to 2014–15 after an increase from 7 years and 3 months in 2011–12.
Figure A7: Yearly distribution and cumulative median immediate custodial sentence length imposed for charges of manslaughter, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
|---|---|---|---|---|---|---|---|
|
2010–2011
|
29
|
3
|
5.25
|
7.5
|
9
|
11
|
7.5
|
|
2011–2012
|
13
|
3
|
5
|
7
|
9
|
11
|
7.25
|
|
2012–2013
|
18
|
4
|
7.5
|
8.25
|
10
|
13
|
8
|
|
2013–2014
|
11
|
3.75
|
6.125
|
8
|
8
|
8.5
|
8
|
|
2014–2015
|
10
|
7
|
8
|
8.83
|
9.75
|
11
|
8
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A8 shows these two measures for the offence of manslaughter.
The IQR was 3 years, and it ranged from 6 years to 9 years.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 5 years. The median of these differences, the MAD value, is 1 year and 6 months. This means that 50% of custodial sentence lengths are less than 1 year and 6 months from the median (between 6 years and 6 months and 9 years and 6 months) and 50% are further than 1 year and 6 months from the median.
Figure A8: Boxplot distribution of immediate custodial sentence lengths imposed for charges of manslaughter, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
3
|
|
First quartile
|
6
|
|
Median
|
8
|
|
Third quartile
|
9
|
|
Longest
|
13
|
|
MAD lower limit
|
6.5
|
|
MAD upper limit
|
9.5
|
Offence 3. Culpable driving causing death
Definition: Killing a person by the driving of a motor vehicle where 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 vehicle.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 66 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: No.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): Yes. Aggravated form of driving offence (more serious than dangerous driving causing death).
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Inconclusive. Community attitudes research (Sentencing Advisory Council, 2012):
Yes. Tasmanian Jury Sentencing Study (culpable driving): highest rates of satisfaction with sentencing for this offence and jurors likely to be more lenient than the judge (small sample size).
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Concerns about road toll and driving offences.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 20 years (increased from 15 years in 1997, after increases in 1991 and 1992).
Baseline offence (baseline sentence of 9 years).
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: No. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: No.
No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning: No. See sentencing data below: ‘immediate custodial sentence lengths over time’
n.a.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: Inconclusive. Some difficulty recognised in distinguishing levels of culpability in the four different forms of the offence: Pasznyk v The Queen [2014] VSCA 87; (2014) 43 VR 169.
Weight given to aggravating and mitigating factors: Inconclusive. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 2 years (5 years to 7 years).
Median Absolute Difference (MAD) = 6 months.
Categorisation of the objective seriousness of the offence: No. Higher median than some offences ranked at the same level (negligently causing serious injury and aggravated burglary) but lower than others (manslaughter).
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 66 charges of culpable driving causing death were sentenced in the higher courts. Culpable driving causing death carries a maximum penalty of 20 years’ imprisonment.
Imprisonment was the most common sentence imposed for charges, and 94% of sentences imposed were immediate custodial sentences (Table A5).[1042]
Table A5: Number and percentage of charges of culpable driving causing death, by sentence type imposed, 2010–11 to 2014–15
|
Sentence type
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
59
|
89%
|
|
Youth training centre
|
3
|
5%
|
|
Wholly suspended sentence
|
4
|
6%
|
|
Total
|
66
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 2 years and 6 months to 10 years and 6 months (Table A6). The median custodial sentence length of 5 years and 6 months is 28% of the maximum penalty.
Table A6: Descriptive statistics of immediate custodial sentences imposed for charges of culpable driving causing death, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
66
|
|
Immediate custodial sentences
|
62
|
|
Percentage immediate custodial
|
94%
|
|
Shortest
|
2 years and 6 months
|
|
Median
|
5 years and 6 months
|
|
Longest
|
10 years and 6 months
|
|
Years from median to maximum penalty
|
14 years and 6 months
|
|
Median % of maximum penalty
|
28%
|
The distribution of immediate custodial sentence lengths in Figure A9 shows that sentences between 4 years and 6 months and 5 years were most common. Overall, 15% of custodial sentence lengths were more than 7 years.
Figure A9: Percentage of immediate custodial sentences imposed for charges of culpable driving causing death, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
–
|
|
≤1.5
|
–
|
|
≤2
|
–
|
|
≤2.5
|
2%
|
|
≤3
|
5%
|
|
≤3.5
|
–
|
|
≤4
|
6%
|
|
≤4.5
|
3%
|
|
≤5
|
27%
|
|
≤5.5
|
10%
|
|
≤6
|
15%
|
|
≤6.5
|
3%
|
|
≤7
|
15%
|
|
≤7.5
|
2%
|
|
≤8
|
5%
|
|
≤8.5
|
2%
|
|
≤9
|
–
|
|
≤9.5
|
–
|
|
≤10
|
5%
|
|
≤10.5
|
2%
|
As a percentage of the 20-year maximum penalty for culpable driving causing death, 44% of custodial sentences were 25% of the maximum penalty or less (Figure A10).
Figure A10: Percentage of immediate custodial sentences imposed for charges of culpable driving causing death, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
0
|
–
|
|
≤10%
|
0
|
–
|
|
≤15%
|
4
|
6%
|
|
≤20%
|
4
|
6%
|
|
≤25%
|
19
|
31%
|
|
≤50%
|
34
|
55%
|
|
≤75%
|
1
|
2%
|
|
≤100%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 62 (94%) custodial sentences imposed over the entire period had a median length of 5 years and 6 months (Table A6). Figure A11 shows that the relatively small number of charges sentenced in each financial year had varied distributions with the cumulative median decreasing to 5 years in 2011–12 and 2012–13 before reaching 5 years and 6 months in 2013–14.
Figure A11: Yearly distribution and cumulative median immediate custodial sentence length imposed for charges of culpable driving causing death, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
8
|
3
|
5
|
5.5416667
|
7
|
8
|
5.5416667
|
|
2011–2012
|
11
|
4
|
4.5
|
5
|
5.25
|
10.5
|
5
|
|
2012–2013
|
16
|
2.5
|
4.875
|
5.5
|
6
|
8.5
|
5
|
|
2013–2014
|
17
|
4.25
|
5
|
6
|
6.5
|
8
|
5.5
|
|
2014–2015
|
10
|
4
|
5.125
|
7
|
9.25
|
10
|
5.5
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A12 shows these two measures for the offence of culpable driving causing death.
The IQR was 2 years, and it ranged from 5 years to 7 years.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 5 years. The median of these differences, the MAD value, is 6 months. This means that 50% of custodial sentences are within 6 months of the median sentence length (between 5 years and 6 years) and 50% are more than 6 months from the median.
Figure A12: Boxplot distribution of immediate custodial sentence lengths imposed for charges of culpable driving causing death, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
2.5
|
|
First quartile
|
5
|
|
Median
|
5.5
|
|
Third quartile
|
7
|
|
Longest
|
10.5
|
|
MAD lower limit
|
5
|
|
MAD upper limit
|
6
|
Appendix 4: Sexual offences data
Offence 4. Rape
Definition: Taking part in an act of sexual penetration with a person without that person’s consent.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 476 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: No.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): No.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Yes. Community attitudes research (Sentencing Advisory Council, 2012):
Tasmanian Jury Sentencing Study (sexual offences); Victorian Jury Sentencing Study (sexual offences, including sexual offences involving victims 12 and older and under 12).
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Community attitudes research (Vic); recognition of prevalence and long-term individual and societal harms; concerns about prevalence in family violence context; Royal Commissions (for example, Royal Commission into Institutional Responses to Child Sexual Abuse); reforms to sexual assault law and procedure; attitudes to women and attribution of blame.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 25 years.
(Not a baseline offence.)
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Yes. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: Yes. Questions of adequacy raised by Court of Appeal but conflicting judgments.
No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning: Yes. See sentencing data below: ‘immediate custodial sentence lengths over time’
Consistent yearly distribution of median and cumulative median over the reference period.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: Yes. Sample case analysis, prepared for the Council’s forthcoming report on sexual penetration with a child under 12, suggests that the serious sexual offender provisions, though enlivened, were not found to require a disproportionate sentence or additional cumulation.
Weight given to aggravating and mitigating factors: Inconclusive. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 2 years and 6 months (3 years and 6 months to 6 years).
Median Absolute Difference (MAD) = 1 year.
Less clustering of individual sentences, compared with sentences for penetrative sexual offences with children, supported by sample case analysis prepared for the Council’s forthcoming report on sexual penetration with a child under 12, which suggests differences in approach to the identification and weighting of aggravating and mitigating factors.
Categorisation of the objective seriousness of the offence: Yes. Sample case analysis prepared for the Council’s forthcoming report on sexual penetration with a child under 12 suggests differences in approach to the treatment of harm and culpability and assessment of seriousness, particularly related to:
See Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361.
Higher median compared with other offences viewed by the community to be equally serious (intentionally causing serious injury), and higher median than offences ranked as more serious (sexual penetration with a child under 12).
Lower median compared with some offences ranked as less serious (manslaughter and trafficking in a large commercial quantity of a drug of dependence).
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 476 charges of rape were sentenced in the higher courts. Rape carries a maximum penalty of 25 years’ imprisonment.
Imprisonment was the most common sentence imposed for charges, and 96% of sentences imposed were immediate custodial sentences (Table A7).
Table A7: Number and percentage of charges of rape, by sentence type imposed, 2010–11 to 2014–15
|
Sentence type
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
447
|
94%
|
|
Partially suspended sentence
|
3
|
1%
|
|
Community order
|
8
|
2%
|
|
Youth training centre
|
2
|
<1%
|
|
Wholly suspended sentence
|
13
|
3%
|
|
Residential treatment order
|
3
|
1%
|
|
Total
|
476
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 6 months to 15 years (Table A8). The median custodial sentence length of 5 years is 20% of the maximum penalty.
Table A8: Descriptive statistics of immediate custodial sentences imposed for charges of rape, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
476
|
|
Immediate custodial sentences
|
453
|
|
Percentage immediate custodiala
|
95%
|
|
Shortest
|
6 months
|
|
Median
|
5 years
|
|
Longest
|
15 years
|
|
Years from median to maximum penalty
|
20 years
|
|
Median % of maximum penalty
|
20%
|
The distribution of immediate custodial sentence lengths in Figure A13 shows that sentences between 4 years and 6 months and 5 years were most common. Overall, 21% of custodial sentences were over 6 years in length.
Figure A13: Percentage of immediate custodial sentences imposed for charges of rape, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
<1%
|
|
≤1.5
|
<1%
|
|
≤2
|
6%
|
|
≤2.5
|
2%
|
|
≤3
|
12%
|
|
≤3.5
|
5%
|
|
≤4
|
16%
|
|
≤4.5
|
5%
|
|
≤5
|
21%
|
|
≤5.5
|
2%
|
|
≤6
|
9%
|
|
≤6.5
|
1%
|
|
≤7
|
4%
|
|
≤7.5
|
3%
|
|
≤8
|
8%
|
|
≤8.5
|
1%
|
|
≤9
|
1%
|
|
≤9.5
|
–
|
|
≤10
|
2%
|
|
≤10.5
|
–
|
|
≤11
|
1%
|
|
≤11.5
|
–
|
|
≤12
|
–
|
|
≤12.5
|
–
|
|
≤13
|
<1%
|
|
≤13.5
|
–
|
|
≤14
|
–
|
|
≤14.5
|
–
|
|
≤15
|
<1%
|
In terms of the 25-year maximum penalty for rape, 79% of custodial sentences were 25% of the maximum penalty or less, and 99% were 50% of the maximum penalty or less (Figure A14).
Figure A14: Percentage of immediate custodial sentences imposed for charges of rape, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
1
|
<1%
|
|
≤10%
|
40
|
9%
|
|
≤15%
|
79
|
17%
|
|
≤20%
|
185
|
41%
|
|
≤25%
|
51
|
11%
|
|
≤50%
|
94
|
21%
|
|
≤75%
|
3
|
1%
|
Immediate custodial sentence lengths over time
The 453 (95%) custodial sentences over the entire period had a median length of 5 years (Table A8). Figure A15 shows that sentence lengths distributions in each financial year had consistent medians, with only 2013–14 having a median slightly below 5 years. In each year, at least one sentence of 2 years or less was imposed.
Figure A15: Yearly distribution and cumulative median length of immediate custodial sentences imposed for charges of rape, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
|---|---|---|---|---|---|---|---|
|
2010–2011
|
83
|
2
|
3.5
|
5
|
7
|
11
|
5
|
|
2011–2012
|
88
|
2
|
4
|
4.7
|
5
|
11
|
5
|
|
2012–2013
|
56
|
1.7
|
3
|
4.5
|
5.6
|
15
|
5
|
|
2013–2014
|
101
|
1.5
|
3
|
4.2
|
6
|
10
|
4.7
|
|
2014–2015
|
125
|
0.5
|
4
|
5
|
7.5
|
13
|
5
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A16 shows these two measures for the offence of rape.
The IQR was 2 years and 6 months, and it ranged from 3 years and 6 months to 6 years.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 10 years. The median of these differences, the MAD value, is 1 year. This means that 50% of custodial sentence lengths are less than 1 year from the median (between 4 years and 6 years) and 50% are further than 1 year from the median.
Figure A16: Boxplot distribution of immediate custodial sentence lengths imposed for charges of rape, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
0.5
|
|
First quartile
|
3.5
|
|
Median
|
5
|
|
Third quartile
|
6
|
|
Longest
|
15
|
|
MAD lower limit
|
4
|
|
MAD upper limit
|
6
|
Offence 5. Incest with child/step-child
Definition: Taking part in an act of sexual penetration with a person whom the offender knows is his or her child, lineal descendant, or step-child.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 370 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: Yes. Child or step-child (any age) of the offender.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): No.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Yes. Not included in community attitudes research (Sentencing Advisory Council, 2012), but findings for sexual penetration with a child under 12 apply where victim of incest is under the age of 12:
Tasmanian Jury Sentencing Study (sexual offences); Victorian Jury Sentencing Study (sexual offences, including sexual offences involving victims 12 and older and under 12).
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Community attitudes research (Vic); recognition of prevalence and long-term individual and societal harms; concerns about prevalence in family violence context; Royal Commissions (for example, Royal Commission into Institutional Responses to Child Sexual Abuse); reforms to sexual assault law and procedure; historically considered to be a ‘victimless’ crime.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 25 years (increased from 20 years in 1997).
Baseline offence if child under 18 years (baseline sentence of 10 years).
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Yes. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: Yes. R v Bellerby [2009] VSCA 59 (28 April 2009): noted that it could be argued that current sentencing practices do not reflect parliament’s intent in increasing the penalty to 25 years, particularly in cases with very young children.
Reid (A Pseudonym) v The Queen [2014] VSCA 145; (2014) 42 VR 295: sentences for incest charges ranging from 20% to 40% of the maximum penalty are manifestly excessive (in case of worst category offending), ‘having regard to the proper limitations of the use of “like” or “comparable” sentencing cases as informing the “instinctive reaction” to the sentence presently under consideration’.
See also Director of Public Prosecutions v CJA [2013] VSCA 18 (15 February 2013); Director of Public Prosecutions v DJ [2011] VSCA 250; (2011) 211 A Crim R 367; Director of Public Prosecutions v BDJ [2009] VSCA 298 (1 December 2009).
Director of Public Prosecutions has initiated an appeal against sentence for incest with child/step-child (under 18) of de facto on grounds of manifest inadequacy: Director of Public Prosecutions v Dalgliesh (A Pseudonym) S APCR 2015 0190.
Evidence of change in current sentencing practices since raised by Court of Appeal: Yes. See sentencing data below: ‘immediate custodial sentence lengths over time’
No change in cumulative median, but some fluctuation in yearly distribution of median over reference period.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: Yes. Possible issues raised by sample case analysis, prepared for the Council’s forthcoming report on sexual penetration with a child under 12, which suggests that the serious sexual offender provisions, though enlivened, were not found to require a disproportionate sentence or additional cumulation.
Issue to be considered by the Court of Appeal regarding approach to presumption of cumulation under serious sexual offender provisions in upcoming appeal by the Director of Public Prosecutions against sentence for incest with child/step-child (under 18) of de facto on grounds of manifest inadequacy: Director of Public Prosecutions v Dalgliesh (A Pseudonym) S APCR 2015 0190.
Issue identified by the Court of Appeal regarding approach to presumption of cumulation under serious sexual offender provisions in successful appeal by the Director of Public Prosecutions against sentence for incest with child/step-child on grounds of manifest inadequacy: Director of Public Prosecutions v BDJ [2009] VSCA 298 (1 December 2009).
Weight given to aggravating and mitigating factors: Yes. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 1 year and 5 months (3 years and 7 months to 5 years).
Median Absolute Difference (MAD) = 1 year.
Limited case analysis suggests inconsistency of approach to representative counts and identification of and weight given to aggravating factors, e.g., use of threats; coercion or actual force; offending over long period; whether offending results in pregnancy; age of victim.
See Director of Public Prosecutions v DJ [2011] VSCA 250; (2011) 211 A Crim R 367; Director of Public Prosecutions v BDJ [2009] VSCA 298 (1 December 2009); Director of Public Prosecutions v OJA [2007] VSCA 129; (2007) 172 A Crim R 181; Director of Public Prosecutions v Walters (A Pseudonym) [2015] VSCA 303 (17 November 2015).
Categorisation of the objective seriousness of the offence: Inconclusive. Possible issues raised by sample case analysis prepared for the Council’s forthcoming report on sexual penetration with a child under 12, which suggests differences in approach to the treatment of harm and culpability and assessment of seriousness, particularly related to:
See Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361.
Median lower than rape but higher than the median for incest with child/step-child (under 18) of de facto; same median as intentionally causing serious injury and sexual penetration with a child under 12.
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 370 charges of incest with child/step-child were sentenced in the higher courts. Incest with child/step-child carries a maximum penalty of 25 years’ imprisonment.
Imprisonment was the most common sentence imposed for charges, and 99% of sentences imposed were immediate custodial sentences (Table A9).[1043]
Table A9: Number and percentage of charges of incest with child/step-child, by sentence type imposed, 2010–11 to 2014–15
|
Sentence type
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
365
|
99%
|
|
Partially suspended sentence
|
1
|
<1%
|
|
Community correction order
|
1
|
<1%
|
|
Wholly suspended sentence
|
3
|
1%
|
|
Total
|
370
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 9 months to 8 years (Table A10). The median custodial sentence length of 4 years is 16% of the maximum penalty.
Table A10: Descriptive statistics of immediate custodial sentences imposed for charges of incest with child/step-child, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
370
|
|
Immediate custodial sentences
|
366
|
|
Percentage immediate custodial
|
99%
|
|
Shortest
|
9 months
|
|
Median
|
4 years
|
|
Longest
|
8 years
|
|
Years from median to maximum penalty
|
21 years
|
|
Median % of maximum penalty
|
16%
|
The distribution of immediate custodial sentence lengths in Figure A17 shows that sentences between 3 years and 6 months and 4 years were most common. Overall, 21% of custodial sentence lengths were longer than 5 years.
Figure A17: Percentage of immediate custodial sentences imposed for charges of incest with child/step-child, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
1%
|
|
≤1.5
|
1%
|
|
≤2
|
1%
|
|
≤2.5
|
2%
|
|
≤3
|
16%
|
|
≤3.5
|
5%
|
|
≤4
|
30%
|
|
≤4.5
|
6%
|
|
≤5
|
18%
|
|
≤5.5
|
4%
|
|
≤6
|
11%
|
|
≤6.5
|
<1%
|
|
≤7
|
4%
|
|
≤7.5
|
<1%
|
|
≤8
|
1%
|
In terms of the 25-year maximum penalty for incest with child/step-child, 95% of the immediate custodial sentence lengths were 25% of the maximum penalty or less, and 100% of sentences were below 35% of the maximum penalty (Figure A18).
Figure A18: Percentage of immediate custodial sentences imposed for charges of incest with child/step-child, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
3
|
1%
|
|
≤10%
|
12
|
3%
|
|
≤15%
|
85
|
23%
|
|
≤20%
|
190
|
52%
|
|
≤25%
|
58
|
16%
|
|
≤50%
|
18
|
5%
|
|
≤75%
|
–
|
0%
|
Immediate custodial sentence lengths over time
The 366 (99%) custodial sentences over the entire period had a median length of 4 years (Table A10). Figure A19 shows that the median custodial sentence length was consistent at 4 years for all of the five-year period. The median sentence length was 4 years in each financial year except 2011–12, where the 60 sentences imposed had a median of 5 years.
Figure A19: Yearly distribution and cumulative median length of immediate custodial sentences imposed for charges of incest with child/step-child, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
|---|---|---|---|---|---|---|---|
|
2010–2011
|
100
|
0.75
|
4
|
4
|
5
|
7
|
4
|
|
2011–2012
|
60
|
1
|
3.5
|
5
|
5.5
|
7
|
4
|
|
2012–2013
|
36
|
1.6
|
3
|
4
|
5
|
7.5
|
4
|
|
2013–2014
|
77
|
3
|
4
|
4
|
5
|
8
|
4
|
|
2014–2015
|
93
|
2
|
3
|
4
|
5
|
6.5
|
4
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A20 shows these two measures for the offence of incest with child/step-child.
The IQR was 1 year and 5 months, and it ranged from 3 years and 7 months to 5 years.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 4 years. The median of these differences, the MAD value, is 1 year. This means that 50% of custodial sentence lengths are less than 1 year from the median (between 3 years and 5 years) and 50% are further than 1 year from the median.
Figure A20: Boxplot distribution of immediate custodial sentence lengths imposed for charges of incest with child/step-child, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
0.75
|
|
First quartile
|
3.5625
|
|
Median
|
4
|
|
Third quartile
|
5
|
|
Longest
|
8
|
|
MAD lower limit
|
3
|
|
MAD upper limit
|
5
|
Offence 6. Incest with child/step-child (under 18) of de facto
Definition: Taking part in an act of sexual penetration with a child under the age of 18 whom the offender knows is the child, lineal descendant, or step-child of his or her de facto partner.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 108 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: Yes. Child/step-child (under 18) of the offender’s de facto partner.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): No.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Yes. Not included in community attitudes research (Sentencing Advisory Council, 2012), but findings for sexual penetration with a child under 12 can apply where victim of incest is under the age of 12:
Tasmanian Jury Sentencing Study (sexual offences); Victorian Jury Sentencing Study (sexual offences, including sexual offences involving victims 12 and older and under 12).
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Community attitudes research (Vic); recognition of prevalence and long-term individual and societal harms; concerns about prevalence in family violence context; Royal Commissions (for example, Royal Commission into Institutional Responses to Child Sexual Abuse); reforms to sexual assault law and procedure; historically considered to be a ‘victimless’ crime.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 25 years (increased from 20 years in 1997).
Baseline offence (baseline sentence of 10 years).
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Yes. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: Yes. Director of Public Prosecutions has initiated an appeal against sentence for incest with child/step-child (under 18) of de facto on grounds of manifest inadequacy: Director of Public Prosecutions v Dalgliesh (A Pseudonym) S APCR 2015 0190.
See also Court of Appeal cases in relation to the offence of incest with child/step-child (above).
Evidence of change in current sentencing practices since raised by Court of Appeal: Yes. See sentencing data below: ‘immediate custodial sentence lengths over time’
Slight increases in yearly distribution of median and cumulative median over reference period.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: Yes. Possible issues raised by sample case analysis, prepared for the Council’s forthcoming report on sexual penetration with a child under 12, which suggests that the serious sexual offender provisions, though enlivened, were not found to require a disproportionate sentence or additional cumulation.
Issue to be considered by the Court of Appeal regarding approach to presumption of cumulation under serious sexual offender provisions in upcoming appeal by the Director of Public Prosecutions against sentence for incest with child/step-child (under 18) of de facto on grounds of manifest inadequacy: Director of Public Prosecutions v Dalgliesh (A Pseudonym) S APCR 2015 0190.
Issue identified by the Court of Appeal regarding approach to presumption of cumulation under serious sexual offender provisions in successful appeal by the Director of Public Prosecutions against sentence for incest with child/step-child on grounds of manifest inadequacy: Director of Public Prosecutions v BDJ [2009] VSCA 298 (1 December 2009).
Weight given to aggravating and mitigating factors: Yes. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 1 year and 8 months (2 years and 10 months to 4 years and 6 months).
Median Absolute Difference (MAD) = 10 months.
Limited case analysis suggests inconsistency of approach to representative counts and identification of, and weight given to, aggravating factors, e.g., use of threats; coercion or actual force; offending over long period; whether offending results in pregnancy; age of victim.
See Director of Public Prosecutions v DJ [2011] VSCA 250; (2011) 211 A Crim R 367; Director of Public Prosecutions v BDJ [2009] VSCA 298 (1 December 2009); Director of Public Prosecutions v OJA [2007] VSCA 129; (2007) 172 A Crim R 181; Director of Public Prosecutions v Walters (A Pseudonym) [2015] VSCA 303 (17 November 2015).
Categorisation of the objective seriousness of the offence: Inconclusive. Possible issues raised by sample case analysis prepared for the Council’s forthcoming report on sexual penetration with a child under 12, which suggests differences in approach to the treatment of harm and culpability and assessment of seriousness, particularly related to:
See Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361.
Median lower than offences of similar seriousness (rape, incest with child/step-child, intentionally causing serious injury, and sexual penetration with a child under 12).
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 108 charges of incest with child/step-child (under 18) of de facto were sentenced in the higher courts. Incest with child/step-child (under 18) of de facto carries a maximum penalty of 25 years’ imprisonment.
All charges sentenced in this period received imprisonment (Table A11).[1044]
Table A11: Number and percentage of charges of incest with child/step-child (under 18) of de facto, by sentence type imposed, 2010–11 to 2014–15
|
Sentence type
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
108
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 2 years to 7 years (Table A12). The median custodial sentence length of 3 years and 6 months is 14% of the maximum penalty.
Table A12: Descriptive statistics of immediate custodial sentences imposed for charges of incest with child/step-child (under 18) of de facto, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
108
|
|
Immediate custodial sentences
|
108
|
|
Percentage immediate custodial
|
100%
|
|
Shortest
|
2 years
|
|
Median
|
3 years and 6 months
|
|
Longest
|
7 years
|
|
Years from median to maximum penalty
|
21 years and 6 months
|
|
Median % of maximum penalty
|
14%
|
The distribution of immediate custodial sentence lengths in Figure A21 shows that sentences between 2 years and 6 months and 3 years were most common. Overall, 30% of custodial sentence lengths were longer than 4 years.
Figure A21: Percentage of immediate custodial sentences imposed for charges of incest with child/step-child (under 18) of de facto, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
–
|
|
≤1.5
|
–
|
|
≤2
|
5%
|
|
≤2.5
|
14%
|
|
≤3
|
26%
|
|
≤3.5
|
7%
|
|
≤4
|
19%
|
|
≤4.5
|
7%
|
|
≤5
|
6%
|
|
≤5.5
|
6%
|
|
≤6
|
8%
|
|
≤6.5
|
–
|
|
≤7
|
1%
|
In terms of the 25-year maximum penalty for incest with child/step-child (under 18) of de facto, 99% of the custodial sentence lengths were 25% of the maximum penalty or less (Figure A22).
Figure A22: Percentage of immediate custodial sentences imposed for charges of incest with child/step-child (under 18) of de facto, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
0
|
–
|
|
≤10%
|
20
|
19%
|
|
≤15%
|
36
|
33%
|
|
≤20%
|
35
|
32%
|
|
≤25%
|
16
|
15%
|
|
≤50%
|
1
|
1%
|
|
≤75%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 108 (100%) custodial sentences over the entire period had a median length of 3 years and 6 months (Table A12). Figure A23 shows that the median custodial sentence length increased from 3 years in 2011–12 to 3 years and 6 months by 2012–13, where it remained until 2014–15. Median immediate custodial sentence lengths for individual years were highest in 2011–12 and 2014–15 at 4 years and 6 months.
Figure A23: Yearly distribution and cumulative median length of immediate custodial sentences imposed for charges of incest with child/step-child (under 18) of de facto, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
49
|
2.12
|
2.5
|
3
|
4
|
5.5
|
3
|
|
2011–2012
|
11
|
3
|
3.75
|
4.5
|
5.25
|
6
|
3
|
|
2012–2013
|
26
|
2
|
3
|
4.25
|
5.38
|
7
|
3.417
|
|
2013–2014
|
8
|
3
|
3
|
4
|
4
|
4.5
|
3.5
|
|
2014–2015
|
14
|
2.5
|
3.25
|
4.5
|
5
|
6
|
3.5
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A24 shows these two measures for the offence of incest with child/step-child (under 18) of de facto.
The IQR was 1 year and 8 months, and it ranged from 2 years and 10 months to 4 years and 6 months.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 3 years and 6 months. The median of these differences, the MAD value, is 10 months. This means that 50% of custodial sentence lengths are less than 10 months from the median (between 2 years and 8 months and 4 years and 4 months) and 50% are further than 10 months from the median.
Figure A24: Boxplot distribution of immediate custodial sentence lengths imposed for charges of incest with child/step-child (under 18) of de facto, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
2
|
|
First quartile
|
2.79
|
|
Median
|
3.5
|
|
Third quartile
|
4.5
|
|
Longest
|
7
|
|
MAD lower limit
|
2.67
|
|
MAD upper limit
|
4.33
|
Offence 7. Sexual penetration with a child under 12
Definition: Taking part in an act of sexual penetration with a child aged under 12 (previously a child aged under 10).
In 2010, the scope of this offence was increased to include victims aged 10 and 11.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 202 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: Yes. Child aged under 12.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): Yes. Aggravated form of sexual penetration with a child under 16 based on age of victim (child under 12).
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Yes. Community attitudes research (Sentencing Advisory Council, 2012):
Tasmanian Jury Sentencing Study (sexual offences); Victorian Jury Sentencing Study (sexual offences, including sexual offences involving victims 12 and older and under 12).
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Community attitudes research (Vic); recognition of prevalence and long-term individual and societal harms; concerns about prevalence in family violence context; Royal Commissions (for example, Royal Commission into Institutional Responses to Child Sexual Abuse); reforms to sexual assault law and procedure.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 25 years (increased from 20 years in 2000).
Baseline offence (baseline sentence of 10 years).
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Yes. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: Yes. Director of Public Prosecutions v CPD [2009] VSCA 114; (2009) 22 VR 533:
No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning: Yes. See sentencing data below: ‘immediate custodial sentence lengths over time’
No change in cumulative median over 4 years (2011–12 to 2014–15), but some fluctuation in yearly distribution of median over reference period.
Council’s 2009 review of maximum penalties identified that CPD and use of guideline judgment provisions would be more effective to address inadequate sentencing practices than increasing the maximum penalty.
No identified appeals lodged by the Director of Public Prosecutions against sentences imposed since this decision.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: Yes. Sample case analysis, prepared for the Council’s forthcoming report on sexual penetration with a child under 12, suggests that the serious sexual offender provisions, though enlivened, were not found to require a disproportionate sentence or additional cumulation.
Weight given to aggravating and mitigating factors: Yes. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 1 year (3 years to 4 years).
Median Absolute Difference (MAD) = 1 year.
Fidelity to current sentencing practices and clustering of individual sentences, supported by sample case analysis prepared for the Council’s forthcoming report on sexual penetration with a child under 12, which suggests differences in approach to the identification and weighting of aggravating and mitigating factors.
Categorisation of the objective seriousness of the offence: Yes. Sample case analysis prepared for the Council’s forthcoming report on sexual penetration with a child under 12 suggests differences in approach to the treatment of harm and culpability and assessment of seriousness, particularly related to:
See Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361.
Lower median compared with other offences viewed by the community to be equally serious (murder and rape).
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 202 charges of sexual penetration with a child under 12 were sentenced in the higher courts. Sexual penetration with a child under 12 carries a maximum penalty of 25 years’ imprisonment.
Imprisonment was the most common sentence imposed for charges, and 87% of sentences imposed were immediate custodial sentences (Table A13).[1045]
Table A13: Number and percentage of charges of sexual penetration with a child under 12, by sentence type imposed, 2010–11 to 2014–15
|
Sentence type
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
167
|
83%
|
|
Partially suspended sentence
|
5
|
2%
|
|
Community correction order
|
9
|
4%
|
|
Youth training centre
|
4
|
2%
|
|
Wholly suspended sentence
|
17
|
8%
|
|
Total
|
202
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 6 months to 7 years (Table A14). The median custodial sentence length of 4 years is 16% of the maximum penalty.
Table A14: Descriptive statistics of immediate custodial sentences imposed for charges of sexual penetration with a child under 12, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
202
|
|
Immediate custodial sentences
|
176
|
|
Percentage immediate custodial
|
87%
|
|
Shortest
|
6 months
|
|
Median
|
4 years
|
|
Longest
|
7 years
|
|
Years from median to maximum penalty
|
21 years
|
|
Median % of maximum penalty
|
16%
|
The distribution of immediate custodial sentence lengths in Figure A25 shows that sentences between 3 years and 6 months and 4 years were most common. Overall, 24% of sentences were more than 4 years in length.
Figure A25: Percentage of immediate custodial sentences imposed for charges of sexual penetration with a child under 12, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
5%
|
|
≤1.5
|
8%
|
|
≤2
|
9%
|
|
≤2.5
|
1%
|
|
≤3
|
22%
|
|
≤3.5
|
3%
|
|
≤4
|
27%
|
|
≤4.5
|
9%
|
|
≤5
|
11%
|
|
≤5.5
|
1%
|
|
≤6
|
2%
|
|
≤6.5
|
–
|
|
≤7
|
2%
|
In terms of the 25-year maximum penalty for sexual penetration with a child under 12, all of the custodial sentences were 30% of the maximum penalty or less (Figure A26). Overall, 98% of custodial sentences were 25% of the maximum penalty or less, with 23% of sentences being 10% of the maximum penalty or less.
Figure A26: Percentage of immediate custodial sentences imposed for charges of sexual penetration with a child under 12, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
10
|
6%
|
|
≤10%
|
30
|
17%
|
|
≤15%
|
45
|
26%
|
|
≤20%
|
83
|
47%
|
|
≤25%
|
5
|
3%
|
|
≤50%
|
3
|
2%
|
|
≤75%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 176 (87%) custodial sentences over the entire period had a median length of 4 years (Table A14). Figure A27 shows that sentence length distributions varied across the financial years, with individual medians of 3 years in 2010–11, 2013–14, and 2014–15 and 4 years in 2011–12 and 2012–13. The cumulative median sentence length increased from 3 years to remain at 4 years from 2011–12 to 2014–15, where sentences below the median were more common in the final two years of observation.
Figure A27: Yearly distribution and cumulative median length of immediate custodial sentences imposed for charges of sexual penetration with a child under 12, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
50
|
0.5
|
1.5
|
3
|
4
|
7
|
3
|
|
2011–2012
|
25
|
0.6666667
|
4
|
4
|
4.5
|
4.5
|
4
|
|
2012–2013
|
39
|
1
|
3
|
4
|
5
|
5.5
|
4
|
|
2013–2014
|
26
|
2
|
2
|
3
|
4
|
5
|
4
|
|
2014–2015
|
36
|
0.5
|
2.9375
|
3
|
4
|
6
|
4
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A28 shows these two measures for the offence of sexual penetration with a child under 12.
The IQR was 1 year, and it ranged from 3 years to 4 years.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 3 years and 6 months. The median of these differences, the MAD value, is 1 year. This means that 50% of custodial sentence lengths are less than 1 year from the median (between 3 years and 5 years) and 50% are further than 1 year from the median.
Figure A28: Boxplot distribution of immediate custodial sentence lengths imposed for charges of sexual penetration with a child under 12, 2010–11 to 2014–15[1046]
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
0.5
|
|
First quartile
|
3
|
|
Median
|
4
|
|
Third quartile
|
4
|
|
Longest
|
7
|
|
MAD lower limit
|
3
|
|
MAD upper limit
|
5
|
Offence 8. Sexual penetration with a child 12–16 under care, supervision, or authority
Definition: Taking part in an act of sexual penetration with a child aged between 12 and 16 years where the child is under the care, supervision, or authority of the offender.
In 2010, the scope of this offence was reduced from victims aged 10–16 to victims aged 12–16.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 74 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: Yes. Child aged 12–16; under care, supervision, or authority of offender.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): Yes. Aggravated form of sexual penetration with a child under the age of 16.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Yes. Community attitudes research (Sentencing Advisory Council, 2012):
Tasmanian Jury Sentencing Study (sexual offences); Victorian Jury Sentencing Study (sexual offences, including sexual offences involving victims 12 and older and under 12).
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Community attitudes research (Vic); recognition of prevalence and long-term individual and societal harms; concerns about prevalence in family violence context; Royal Commissions (for example, Royal Commission into Institutional Responses to Child Sexual Abuse); reforms to sexual assault law and procedure.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 15 years.
(Not a baseline offence.)
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Yes. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: Inconclusive. Limited Court of Appeal commentary specifically on sentencing practices for this form of the offence (with a child 12–16). However, comments made in relation to similar offences where offender is in position of authority are relevant, e.g., that offences such as these deserve condign punishment: R v Wakime [1997] 1 VR 242; Director of Public Prosecutions v Riddle [2002] VSCA 153 (11 September 2002).
Evidence of change in current sentencing practices since raised by Court of Appeal: Inconclusive. See sentencing data below: ‘immediate custodial sentence lengths over time’
No change in cumulative median, but some fluctuation in yearly distribution of median over reference period.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: Yes. Possible issues raised by sample case analysis, prepared for the Council’s forthcoming report on sexual penetration with a child under 12, which suggests that the serious sexual offender provisions, though enlivened, were not found to require a disproportionate sentence or additional cumulation.
Weight given to aggravating and mitigating factors: Yes. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 1 year and 6 months (2 years and 6 months to 4 years).
Median Absolute Difference (MAD) = 6 months.
Categorisation of the objective seriousness of the offence: Inconclusive. Possible issues raised by sample case analysis prepared for the Council’s forthcoming report on sexual penetration with a child under 12, which suggests differences in approach to the treatment of harm and culpability and assessment of seriousness, particularly related to:
See Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361.
Higher median compared with other offences viewed by the community to be equally serious (armed robbery and recklessly causing serious injury).
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 74 charges of sexual penetration with a child 12–16 under care, supervision, or authority were sentenced in the higher courts. Sexual penetration with a child 12–16 under care, supervision, or authority carries a maximum penalty of 15 years’ imprisonment.
Imprisonment was the most commonly imposed sentence for charges, and 91% of charges of sexual penetration with a child 12–16 under care, supervision, or authority were immediate custodial sentences (Table A15).[1047]
Table A15: Number and percentage of charges of sexual penetration with a child 12–16 under care, supervision, or authority, by sentence type imposed, 2010–11 to 2014–15
|
Sentence type
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
59
|
80%
|
|
Partially suspended sentence
|
5
|
7%
|
|
Community correction order
|
4
|
5%
|
|
Youth training centre
|
3
|
4%
|
|
Wholly suspended sentence
|
3
|
4%
|
|
Total
|
74
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 3 months to 6 years (Table A16). The median custodial sentence length of 3 years is 20% of the maximum penalty.
Table A16: Descriptive statistics of immediate custodial sentences imposed for charges of sexual penetration with a child 12–16 under care, supervision, or authority, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
74
|
|
Immediate custodial sentences
|
67
|
|
Percentage immediate custodial
|
91%
|
|
Shortest
|
3 months
|
|
Median
|
3 years
|
|
Longest
|
6 years
|
|
Years from median to maximum penalty
|
12 years
|
|
Median % of maximum penalty
|
20%
|
The distribution of immediate custodial sentence lengths in Figure A29 shows that sentences between 2 years and 6 months and 3 years were most common. Overall, 13% of sentences were more than 4 years in length.
Figure A29: Percentage of immediate custodial sentences imposed for charges of sexual penetration with a child 12–16 under care, supervision, or authority, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
7%
|
|
≤1.5
|
3%
|
|
≤2
|
10%
|
|
≤2.5
|
12%
|
|
≤3
|
34%
|
|
≤3.5
|
6%
|
|
≤4
|
13%
|
|
≤4.5
|
–
|
|
≤5
|
4%
|
|
≤5.5
|
4%
|
|
≤6
|
4%
|
In terms of the 15-year maximum penalty for sexual penetration with a child 12–16 under care, supervision, or authority, 73% of sentences were 25% of the maximum penalty or less, with 10% of sentences being 10% of the maximum penalty or less (Figure A30).
Figure A30: Percentage of immediate custodial sentences imposed for charges of sexual penetration with a child 12–16 under care, supervision, or authority, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
2
|
3%
|
|
≤10%
|
5
|
7%
|
|
≤15%
|
7
|
10%
|
|
≤20%
|
31
|
46%
|
|
≤25%
|
4
|
6%
|
|
≤50%
|
18
|
27%
|
|
≤75%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 67 (91%) immediate custodial sentences over the entire period had a median length of 3 years (Table A16). Figure A31 shows that sentence length distributions varied across the financial years, with individual medians of 3 years in 2010–11, 2013–14, and 2014–15 and 4 years and 6 months in 2011–12. The cumulative median sentence length was 3 years for the entire period.
Figure A31: Yearly distribution and cumulative median length of immediate custodial sentences imposed for charges of sexual penetration with a child 12–16 under care, supervision, or authority, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
|---|---|---|---|---|---|---|---|
|
2010–2011
|
22
|
0.75
|
2.125
|
3
|
3
|
6
|
3
|
|
2011–2012
|
14
|
2.5
|
3.125
|
4.5
|
5.5
|
6
|
3
|
|
2012–2013
|
12
|
2
|
2
|
2.75
|
3
|
4
|
3
|
|
2013–2014
|
12
|
0.25
|
2.25
|
3
|
4
|
4
|
3
|
|
2014–2015
|
7
|
2.5
|
2.75
|
3
|
4
|
5
|
3
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A32 shows these two measures for the offence of sexual penetration with a child 12–16 under care, supervision, or authority.
The IQR was 1 year and 6 months, and it ranged from 2 years and 6 months to 4 years.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 3 years. The median of these differences, the MAD value, is 6 months. This means that 50% of custodial sentence lengths are less than 6 months from the median (between 2 years and 6 months and 3 years and 6 months) and 50% are further than 1 year from the median.
Figure A32: Boxplot distribution of immediate custodial sentence lengths imposed for charges of sexual penetration with a child 12–16 under care, supervision, or authority, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
0.25
|
|
First quartile
|
2.5
|
|
Median
|
3
|
|
Third quartile
|
4
|
|
Longest
|
6
|
|
MAD lower limit
|
2.5
|
|
MAD upper limit
|
3.5
|
Offence 9. Sexual penetration with a child 12–16
Definition: Taking part in an act of sexual penetration with a child aged 12–16.
In 2010, the scope of this offence was reduced from victims aged 10–16 to victims aged 12–16.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 858 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: Yes. Child aged 12–16.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): No.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Yes. Community attitudes research (Sentencing Advisory Council, 2012):
Tasmanian Jury Sentencing Study (sexual offences); Victorian Jury Sentencing Study (sexual offences, including sexual offences involving victims 12 and older and under 12).
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Community attitudes research (Vic); recognition of prevalence and long-term individual and societal harms; concerns about prevalence in family violence context; Royal Commissions (for example, Royal Commission into Institutional Responses to Child Sexual Abuse); reforms to sexual assault law and procedure.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 10 years.
(Not a baseline offence.)
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Yes. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: Inconclusive. Limited Court of Appeal commentary specifically on sentencing practices for this form of the offence (with a child 12–16). However, comments made in relation to similar offences are relevant, e.g., the offence of maintaining sexual relationship with a child under 16, as it then was, ‘is of utmost gravity’ and of community concern: ED v The Queen (2011) 216 A Crim R 404. Question raised regarding adequacy of current sentencing practices for persistent sexual abuse of child under 16: Director of Public Prosecutions v DDJ [2009] VSCA 115; (2009) 22 VR 444).
Evidence of change in current sentencing practices since raised by Court of Appeal: Inconclusive. See sentencing data below: ‘immediate custodial sentence lengths over time’
Slight change in cumulative median, but some fluctuation in yearly distribution of median over reference period.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: Yes. Possible issues raised by sample case analysis, prepared for the Council’s forthcoming report on sexual penetration with a child under 12, which suggests that the serious sexual offender provisions, though enlivened, were not found to require a disproportionate sentence or additional cumulation.
Weight given to aggravating and mitigating factors: Yes. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 1 year and 6 months (1 year and 6 months to 3 years).
Median Absolute Difference (MAD) = 6 months.
Possible issues around charging offenders with this offence, when they could be charged with the ‘care, supervision, or authority form’ of the offence; unclear whether the aggravating factor of being in such a position is being treated consistently.
Limited case analysis suggests inconsistency of approach to representative counts and identification of and weight given to aggravating factors such as use of threats, coercion, or actual force; offending over long period; whether offending results in pregnancy; age of victim.
Categorisation of the objective seriousness of the offence: Yes. Issue with characterisation of assessment of harm in comparison to sexual penetration with a child under 12 offence (see Adamson v The Queen [2015] VSCA 194; (2015) 301 FLR 385: harm is presumed where the child cannot give meaningful consent).
Issue with characterisation of seriousness and different conceptualisation of sexual violence compared with rape: R v LCC [2006] VSCA 33 (16 February 2006).
Possible issues raised by sample case analysis prepared for the Council’s forthcoming report on sexual penetration with a child under 12, which suggests differences in approach to the treatment of harm and culpability and assessment of seriousness, particularly related to:
See Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361.
Lowest median compared with other sexual penetration offences, but sentences represent higher proportions of 10-year maximum penalty.
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 858 charges of sexual penetration with a child 12–16 were sentenced in the higher courts. Sexual penetration with a child 12–16 carries a maximum penalty of 10 years’ imprisonment.
Imprisonment was the most common sentence imposed for charges, and 61% of sentences imposed were immediate custodial sentences (Table A17).
Table A17: Number and percentage of charges of sexual penetration with a child 12–16, by sentence type imposed, 2010–11 to 2014–15
|
Sentence typea
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
471
|
55%
|
|
Partially suspended sentence
|
30
|
3%
|
|
Community order
|
202
|
24%
|
|
Intensive correction order
|
3
|
<1%
|
|
Youth training centre
|
12
|
1%
|
|
Wholly suspended sentence
|
119
|
14%
|
|
Other
|
21
|
2%
|
|
Total
|
858
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 1 month to 5 years (Table A18). The median custodial sentence length of 2 years and 6 months is 25% of the maximum penalty.
Table A18: Descriptive statistics of immediate custodial sentences imposed for charges of sexual penetration with a child 12–16, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
858
|
|
Immediate custodial sentences
|
520
|
|
Percentage immediate custodiala
|
61%
|
|
Shortest
|
1 month
|
|
Median
|
2 years and 6 months
|
|
Longest
|
5 years
|
|
Years from median to maximum penalty
|
7 years and 6 months
|
|
Median % of maximum penalty
|
25%
|
The distribution of immediate custodial sentence lengths in Figure A33 shows that sentences between 2 years and 6 months and 3 years were most common. Overall, 17% of sentences were more than 3 years in length.
Figure A33: Percentage of immediate custodial sentences imposed for charges of sexual penetration with a child 12–16, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
13%
|
|
≤1.5
|
13%
|
|
≤2
|
21%
|
|
≤2.5
|
14%
|
|
≤3
|
22%
|
|
≤3.5
|
9%
|
|
≤4
|
6%
|
|
≤4.5
|
1%
|
|
≤5
|
2%
|
In terms of the 10-year maximum penalty for sexual penetration with a child 12–16, 62% of the custodial sentences were 25% of the maximum penalty or less (Figure A34).
Figure A34: Percentage of immediate custodial sentences imposed for charges of sexual penetration with a child 12–16, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
24
|
5%
|
|
≤10%
|
46
|
9%
|
|
≤15%
|
69
|
13%
|
|
≤20%
|
110
|
21%
|
|
≤25%
|
71
|
14%
|
|
≤50%
|
200
|
38%
|
|
≤75%
|
0
|
–
|
|
≤100%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 520 (61%) custodial sentences over the entire period had a median length of 2 years and 6 months (Table A18). Figure A35 shows that sentence length distributions were consistent across the financial years, with individual medians ranging between 2 years and 2 years and 6 months. The cumulative median sentence length increased slightly, from 2 years and 3 months in 2010–11 to 2 years and 6 months from 2011–12.
Figure A35: Yearly distribution and cumulative median length of immediate custodial sentences imposed for charges of sexual penetration with a child 12–16, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
152
|
0.25
|
1.5
|
2.25
|
3
|
5
|
2.25
|
|
2011–2012
|
125
|
0.75
|
2
|
2.5
|
3
|
5
|
2.5
|
|
2012–2013
|
93
|
0.0833333
|
1.75
|
2.5
|
3
|
5
|
2.5
|
|
2013–2014
|
52
|
0.5
|
1.3333333
|
2
|
3
|
5
|
2.5
|
|
2014–2015
|
98
|
0.25
|
1
|
2
|
3
|
4.5
|
2.5
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A36 shows these two measures for the offence of sexual penetration with a child 12–16.
The IQR was 1 year and 6 months, and it ranged from 1 year and 6 months to 3 years.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 2 years and 6 months. The median of these differences, the MAD value, is 6 months. This means that 50% of custodial sentence lengths are less than 6 months from the median (between 2 years and 3 years) and 50% are further than 6 months from the median.
Figure A36: Boxplot distribution of immediate custodial sentence lengths imposed for charges of sexual penetration with a child 12–16, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
0.083
|
|
First quartile
|
1.5
|
|
Median
|
2.5
|
|
Third quartile
|
3
|
|
Longest
|
5
|
|
MAD lower limit
|
2
|
|
MAD upper limit
|
3
|
Sample case analysis – sexual penetration with a child 12–16
Table A19: Sample case analysis for charges of sexual penetration with a child 12–16, 2010–11 to 2014–15
|
Data point
|
Sentence on charge
|
Number of cases examined
|
Plea
|
Case identifier
|
Case notes
|
|---|---|---|---|---|---|
|
Lowest
Total number of charges at data point: 1 |
1 month
(combined with CCO for 12 months) |
1
|
Guilty (at committal mention)
|
Single charge; 38 year old offender; 15 year old victim (friend of
offender’s son); offence ‘at the lower level of the
scale of
offences of these kind’.
Victim was in offender’s care as he was staying over at her house (visiting her children); she had known him since he was in grade 3 with her son. Anxiety disorder (pre-dating offending); no nexus with offending; risk of reoffending noted to be low; imprisonment would weigh heavily as the offender had a child with autism. |
|
|
Median
Total number of charges at data point: 63 |
2 years and 6 months
|
1
|
Guilty (early)
|
13 charges, 3 victims, offending period from late 2009 to early 2010;
victims aged 14–15 and offender aged 26 years.
Significant planning (offender met victims on the internet, arranged to meet); told them he was 18–19; offender knew the actual ages of victims; significant psychological harm for victims. Good work history; good prospects of rehabilitation. |
|
|
Highest
Total number of charges at data point: 9 |
5 years
|
1
|
Not guilty
|
5 charges (also 1 charge of indecent act with a child under 16); victim was
14 years old; vulnerable; ‘troubled’; dysfunctional
family life;
offender met victim, her siblings, and her mother at a boarding house; offender
‘in a position of trust, which
[he] comprehensively abused’.
|
Offence 10. Indecent act with a child under 16
Definition: Committing an indecent act with, or in the presence of, a child under 16.
Offence characteristics
The offence is an indictable offence: Indictable offence, triable summarily.
The extent to which the offence is ‘prevalent’: 1,589 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
871 charges sentenced in the Magistrates’ Court between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: Yes. Child under 16.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): No.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Yes. Community attitudes research (Sentencing Advisory Council, 2012):
Tasmanian Jury Sentencing Study (sexual offences); Victorian Jury Sentencing Study (sexual offences, including sexual offences involving victims 12 and older and under 12).
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Community attitudes research (Vic) found little differentiation in seriousness based on physical act (touching versus penetration); recognition of prevalence and long-term individual and societal harms; concerns about prevalence in family violence context; Royal Commissions (for example, Royal Commission into Institutional Responses to Child Sexual Abuse); reforms to sexual assault law and procedure.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 10 years.
(Not a baseline offence.)
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Yes. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: Inconclusive. Director of Public Prosecutions v OJA [2007] VSCA 129; (2007) 172 A Crim R 181: commented that the answer to the question of whether a sentence is manifestly inadequate is not just to look at the highest sentence that has previously been imposed; commented that there is a possibility that ‘sentences to this point have simply been too low’: see 196.
Evidence of change in current sentencing practices since raised by Court of Appeal: Inconclusive. See sentencing data below: ‘immediate custodial sentence lengths over time’
No change in yearly distribution of median or cumulative median over reference period.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: Yes. Possible issues raised by sample case analysis, prepared for the Council’s forthcoming report on sexual penetration with a child under 12, which suggests that the serious sexual offender provisions, though enlivened, were not found to require a disproportionate sentence or additional cumulation.
Weight given to aggravating and mitigating factors: Inconclusive. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 9 months (9 months to 1 year and 6 months).
Median Absolute Difference (MAD) = 6 months.
Less evidence of clustering of sentences than that observed in the sexual penetration offences.
Categorisation of the objective seriousness of the offence: Yes. Possible issues raised by sample case analysis prepared for the Council’s forthcoming report on sexual penetration with a child under 12, which suggests differences in approach to the treatment of harm and culpability and assessment of seriousness, particularly related to:
Broad range of conduct encompassed by offence may not be reflected in categorisation of seriousness; query whether the range of harm and culpability is reflected in assessments of seriousness particularly where the act is equally as traumatising and frightening for the victim.
See Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361.
Lowest median compared with other sexual offences.
Lowest median compared with other offences viewed by the community to be as serious (manslaughter, aggravated burglary, culpable driving causing death, negligently causing serious injury).
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 1,589 charges of indecent act with a child under 16 were sentenced in the higher courts. Indecent act with a child under 16 carries a maximum penalty of 10 years’ imprisonment.
Imprisonment was the most common sentence imposed for charges, and 84% of sentences imposed were immediate custodial sentences (Table A20).
Table A20: Number and percentage of charges of indecent act with a child under 16, by sentence type imposed, 2010–11 to 2014–15
|
Sentence typea
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
1,273
|
80%
|
|
Partially suspended sentence
|
45
|
3%
|
|
Community order
|
141
|
9%
|
|
Youth training centre
|
9
|
1%
|
|
Wholly suspended sentence
|
97
|
6%
|
|
Fine
|
6
|
<1%
|
|
Other
|
18
|
1%
|
|
Total
|
1,589
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 7 days to 4 years and 6 months (Table A21). The median custodial sentence length of 1 year is 10% of the maximum penalty.
Table A21: Descriptive statistics of immediate custodial sentences imposed for charges of indecent act with a child under 16, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
1,589
|
|
Immediate custodial sentences
|
1,326
|
|
Percentage immediate custodiala
|
83%
|
|
Shortest
|
7 days
|
|
Median
|
1 year
|
|
Longest
|
4 years and 6 months
|
|
Years from median to maximum penalty
|
9 years
|
|
Median % of maximum penalty
|
10%
|
The distribution of immediate custodial sentence lengths in Figure A37 shows that sentences at less than 1 year were most common. Overall, 7% of sentences were over 2 years.
Figure A37: Percentage of immediate custodial sentences imposed for charges of indecent act with a child under 16, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
59%
|
|
≤1.5
|
21%
|
|
≤2
|
13%
|
|
≤2.5
|
3%
|
|
≤3
|
3%
|
|
≤3.5
|
–
|
|
≤4
|
<1%
|
|
≤4.5
|
<1%
|
|
≤5
|
–
|
In terms of the 10-year maximum penalty for indecent act with a child under 16, 96% of custodial sentences were 25% of the maximum penalty or less (Figure A38).
Figure A38: Percentage of immediate custodial sentences imposed for charges of indecent act with a child under 16, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
274
|
21%
|
|
≤10%
|
509
|
38%
|
|
≤15%
|
272
|
21%
|
|
≤20%
|
178
|
13%
|
|
≤25%
|
41
|
3%
|
|
≤50%
|
52
|
4%
|
|
≤75%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 1,326 (83%) immediate custodial sentences imposed over the entire period had a median length of 1 year (Table A21). Figure A39 shows that the charges sentenced each financial year established a steady cumulative median sentence length of 1 year for the entire period. The median custodial sentence imposed in each financial year was also 1 year.
Figure A39: Yearly distribution and cumulative median length of immediate custodial sentences imposed for charges of indecent act with a child under 16, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
404
|
0.17
|
0.75
|
1
|
1.5
|
4
|
1
|
|
2011–2012
|
247
|
0.17
|
0.583
|
1
|
1.5
|
3
|
1
|
|
2012–2013
|
244
|
0.08
|
0.67
|
1
|
1.5
|
4
|
1
|
|
2013–2014
|
230
|
0.021
|
0.75
|
1
|
1.5
|
4.5
|
1
|
|
2014–2015
|
201
|
0.08
|
0.67
|
1
|
1.5
|
3
|
1
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A40 shows these two measures for the offence of indecent act with a child under 16.
The IQR was 9 months, and it ranged from 9 months to 1 year and 6 months.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 3 years and 6 months. The median of these differences, the MAD value, is 6 months. This means that 50% of immediate custodial sentence lengths are less than 6 months from the median (between 6 months and 1 year and 6 months) and 50% are further than 6 months from the median.
Figure A40: Boxplot distribution of immediate custodial sentence lengths imposed for charges of indecent act with a child under 16, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
0.021
|
|
First quartile
|
0.75
|
|
Median
|
1
|
|
Third quartile
|
1.5
|
|
Longest
|
4.5
|
|
MAD lower limit
|
0.5
|
|
MAD upper limit
|
1.5
|
Offence 11. Persistent sexual abuse of a child under 16
Definition: Persistently sexually abusing a child under the age of 16 through at least three acts that would constitute a sexual offence within a particular period.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 54 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: Yes. Child under 16.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): Yes. Course of conduct offence (multiple incidents of particular sexual offences).
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Yes. Not included in community attitudes research (Sentencing Advisory Council, 2012), but all child sexual offences ranked at level 8 or higher due to:
Tasmanian Jury Sentencing Study (sexual offences); Victorian Jury Sentencing Study (sexual offences, including sexual offences involving victims 12 and older and under 12).
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Community attitudes research (Vic); recognition of prevalence and long-term individual and societal harms; concerns about prevalence in family violence context; Royal Commissions (for example, Royal Commission into Institutional Responses to Child Sexual Abuse); reforms to sexual assault law and procedure.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 25 years (changed in 1997 and offence renamed in 2006).
Baseline offence (baseline sentence of 10 years).
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Yes. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: Yes. Director of Public Prosecutions v DDJ [2009] VSCA 115; (2009) 22 VR 444: questioned adequacy of current sentencing practices given most cases cluster around the 5-year median, representing only 20% of the maximum penalty; no cases exceeding 40% of the maximum penalty including ‘some of the very worst examples of the offence’; however, court rejected Crown range as was not supported by current sentencing practices.
Evidence of change in current sentencing practices since raised by Court of Appeal: Yes. See sentencing data below: ‘immediate custodial sentence lengths over time’
Decrease in yearly distribution of median and cumulative median over reference period. Cumulative median decreased from 7 years and 6 months in 2011–12 to 6 years in 2014–15.
Council’s 2009 review of maximum penalties identified that current sentencing practices and use of guideline judgment provisions would be more effective to address inadequate sentencing practices than increasing the maximum penalty.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: Yes. Possible issues raised by sample case analysis, prepared for the Council’s forthcoming report on sexual penetration with a child under 12, which suggests that the serious sexual offender provisions, though enlivened, were not found to require a disproportionate sentence or additional cumulation.
Weight given to aggravating and mitigating factors: Yes. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 2 years and 7 months (5 years and 5 months to 8 years).
Median Absolute Difference (MAD) = 1 year.
Fidelity to current sentencing practices and clustering of individual sentences, supported by sample case analysis prepared for the Council’s forthcoming report on sexual penetration with a child under 12, which suggests differences in approach to the identification and weighting of aggravating and mitigating factors.
Categorisation of the objective seriousness of the offence: Yes. Extent to which seriousness factors at the ‘heart of the offence’ are reflected in sentencing practices (the degree to which the persistence of the sexual relationship is reflected in sentencing; differences in the nature of the relationship; categorisation of the nature/intensity of the sexual abuse): Director of Public Prosecutions v DDJ [2009] VSCA 115; (2009) 22 VR 444.
Possible issues raised by sample case analysis prepared for the Council’s forthcoming report on sexual penetration with a child under 12, which suggests differences in approach to the treatment of harm and culpability and assessment of seriousness, particularly related to:
See Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361.
Median higher than other sexual offences, but lower than other serious offences such as manslaughter and trafficking in a large commercial quantity of a drug of dependence.
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 54 charges of persistent sexual abuse of a child under 16 were sentenced in the higher courts. Persistent sexual abuse of a child under 16 carries a maximum penalty of 25 years’ imprisonment.
Imprisonment was the most common sentence imposed for charges (89%) and the only form of custodial sentenced imposed (Table A22).[1048]
Table A22: Number and percentage of charges of persistent sexual abuse of a child under 16, by sentence type imposed, 2010–11 to 2014–15
|
Sentence type
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
48
|
89%
|
|
Community correction order
|
4
|
7%
|
|
Wholly suspended sentence
|
1
|
2%
|
|
Fine
|
1
|
2%
|
|
Total
|
54
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 1 year and 6 months to 12 years (Table A23). The median custodial sentence length of 6 years is 24% of the maximum penalty.
Table A23: Descriptive statistics of immediate custodial sentences imposed for charges of persistent sexual abuse of a child under 16, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
54
|
|
Immediate custodial sentences
|
48
|
|
Percentage immediate custodial
|
89%
|
|
Shortest
|
1 year and 6 months
|
|
Median
|
6 years
|
|
Longest
|
12 years
|
|
Years from median to maximum penalty
|
19 years
|
|
Median % of maximum penalty
|
24%
|
The distribution of immediate custodial sentence lengths in Figure A41 shows that sentences between 5 years and 6 months and 6 years were most common. Overall, 17% of custodial sentence lengths were more than 8 years.
Figure A41: Percentage of immediate custodial sentences imposed for charges of persistent sexual abuse of a child under 16, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
–
|
|
≤1.5
|
2%
|
|
≤2
|
4%
|
|
≤2.5
|
2%
|
|
≤3
|
2%
|
|
≤3.5
|
2%
|
|
≤4
|
2%
|
|
≤4.5
|
–
|
|
≤5
|
8%
|
|
≤5.5
|
10%
|
|
≤6
|
23%
|
|
≤6.5
|
–
|
|
≤7
|
10%
|
|
≤7.5
|
2%
|
|
≤8
|
15%
|
|
≤8.5
|
–
|
|
≤9
|
13%
|
|
≤9.5
|
–
|
|
≤10
|
2%
|
|
≤10.5
|
–
|
|
≤11
|
–
|
|
≤11.5
|
–
|
|
≤12
|
2%
|
In terms of the 25-year maximum penalty for persistent sexual abuse of a child under 16, 56% of immediate custodial sentences were 25% of the maximum penalty or less, and all sentence lengths were less than 50% of the maximum penalty (Figure A42).
Figure A42: Percentage of immediate custodial sentences imposed for charges of persistent sexual abuse of a child under 16, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
0
|
–
|
|
≤10%
|
4
|
8%
|
|
≤15%
|
3
|
6%
|
|
≤20%
|
4
|
8%
|
|
≤25%
|
16
|
33%
|
|
≤50%
|
21
|
44%
|
|
≤75%
|
0
|
–
|
|
≤100%
|
|
–
|
Immediate custodial sentence lengths over time
The 48 (89%) custodial sentences imposed over the entire period had a median length of 6 years (Table A23). Figure A43 shows that the small number of charges sentenced in each financial year lead to a fluctuating cumulative median sentence length that settled at 6 years in 2013–14 after a median of 7 years and 6 months in 2011–12.
Figure A43: Yearly distribution and cumulative median length of immediate custodial sentences imposed for charges of persistent sexual abuse of a child under 16, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
3
|
6
|
6
|
6
|
8
|
10
|
6
|
|
2011–2012
|
4
|
5.5
|
7
|
8.25
|
9.75
|
12
|
7.5
|
|
2012–2013
|
13
|
1.5
|
5.5
|
7
|
8
|
12
|
7
|
|
2013–2014
|
8
|
2
|
5.1875
|
5.75
|
6
|
12
|
6
|
|
2014–2015
|
20
|
2
|
5
|
6
|
8
|
12
|
6
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A44 shows these two measures for the offence of persistent sexual abuse with a child under 16.
The IQR was 2 years and 7 months, and it ranged from 5 years and 5 months to 8 years.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 6 years. The median of these differences, the MAD value, is 1 year. This means that 50% of custodial sentence lengths are less than 1 year from the median (between 5 years and 7 years) and 50% are further than 1 year from the median.
Figure A44: Boxplot distribution of immediate custodial sentence lengths imposed for charges of persistent sexual abuse of a child under 16, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
1.5
|
|
First quartile
|
5.4375
|
|
Median
|
6
|
|
Third quartile
|
8
|
|
Longest
|
12
|
|
MAD lower limit
|
5
|
|
MAD upper limit
|
7
|
Appendix 5:
Serious injury offences data
Offence 12. Intentionally causing serious injury
Definition: Causing serious injury to a person by a physical attack with the intention to cause serious injury.
Since 1 July 2013, the definition of ‘serious injury’ has narrowed to life-threatening injuries, the destruction of a foetus, and injuries that are substantial and protracted.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 504 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: Yes. Where the victim is an emergency worker, a minimum non-parole period applies.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): Inconclusive. Most serious form of causing serious injury, but not an aggravated offence; aggravated forms (against an emergency worker) attract a minimum non-parole period of 3 years.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Yes. Community attitudes research (Sentencing Advisory Council, 2012):
Tasmanian Jury Sentencing Study (violent offences); Victorian Jury Sentencing Study (violent offences).
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Community attitudes research (Vic); aggravated form for emergency workers, increasing awareness of family violence and serious injury to partners and children.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 20 years (increased from 12.5 years in 1997).
Minimum non-parole period for some forms introduced in 2014.
(Not a baseline offence.)
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Yes. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: Yes. Kane v The Queen [2010] VSCA 213 (23 August 2010): court identified possible need to revisit current sentencing practices, which continue to have a downgrading effect on sentences for serious forms of this offence, but indicated that there had been no appropriate case to consider this.
No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning: Yes. See sentencing data below: ‘immediate custodial sentence lengths over time’
Increase in yearly distribution of median between 2013–14 and 2014–15 but no change in cumulative median over reference period.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: Inconclusive. Possible error regarding the categorisation of the seriousness of intentionally causing serious injury at the high end of objective seriousness and in a family violence context: Kilic v The Queen [2015] VSCA 331 (8 December 2016).
Weight given to aggravating and mitigating factors: Yes. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 2 years (3 years to 5 years).
Median Absolute Difference (MAD) = 1 year.
Submissions raised inconsistency in assessment of, and weight given to, premeditation, relationship of trust, seriousness/permanency of injury: Kilic v The Queen [2015] VSCA 331 (8 December 2016).
Categorisation of the objective seriousness of the offence: Yes. Lowest median compared with other offences viewed by the community to be as serious (rape and reckless murder).
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 504 charges of intentionally causing serious injury were sentenced in the higher courts. Intentionally causing serious injury carries a maximum penalty of 20 years.
Imprisonment was the most common sentence imposed for charges, and 92% of sentences imposed were immediate custodial sentences (Table A24).
Table A24: Number and percentage of charges of intentionally causing serious injury, by sentence type imposed, 2010–11 to 2014–15
|
Sentence typea
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
415
|
82%
|
|
Partially suspended sentence
|
8
|
2%
|
|
Community order
|
24
|
5%
|
|
Intensive correction order
|
1
|
<1%
|
|
Youth centre
|
38
|
8%
|
|
Wholly suspended sentence
|
17
|
3%
|
|
Fine
|
1
|
<1%
|
|
Total
|
504
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 5 days to 12 years (Table A25). The median custodial sentence length of 4 years is 20% of the maximum penalty.
Table A25: Descriptive statistics of immediate custodial sentences imposed for charges of intentionally causing serious injury, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
523
|
|
Immediate custodial sentences
|
456
|
|
Percentage immediate custodiala
|
90%
|
|
Shortest
|
5 days
|
|
Median
|
4 years
|
|
Longest
|
12 years
|
|
Years from median to maximum penalty
|
16 years
|
|
Median % of maximum penalty
|
20%
|
The distribution of immediate custodial sentence lengths in Figure A45 shows that sentences between 2 years and 6 months and 3 years were most common. Overall, 14% of sentences were over 6 years in length.
Figure A45: Percentage of immediate custodial sentences imposed for charges of intentionally causing serious injury, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
4%
|
|
≤1.5
|
6%
|
|
≤2
|
9%
|
|
≤2.5
|
5%
|
|
≤3
|
14%
|
|
≤3.5
|
5%
|
|
≤4
|
12%
|
|
≤4.5
|
9%
|
|
≤5
|
13%
|
|
≤5.5
|
3%
|
|
≤6
|
6%
|
|
≤6.5
|
1%
|
|
≤7
|
4%
|
|
≤7.5
|
1%
|
|
≤8
|
4%
|
|
≤8.5
|
<1%
|
|
≤9
|
1%
|
|
≤9.5
|
1%
|
|
≤10
|
1%
|
|
≤10.5
|
<1%
|
|
≤11
|
<1%
|
|
≤11.5
|
–
|
|
≤12
|
<1%
|
As a percentage of the 20-year maximum penalty for intentionally causing serious injury, 77% of custodial sentences were 25% of the maximum penalty or less (Figure A46).
Figure A46: Percentage of immediate custodial sentences imposed for charges of intentionally causing serious injury, by the percentage of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
20
|
4%
|
|
≤10%
|
66
|
14%
|
|
≤15%
|
86
|
19%
|
|
≤20%
|
79
|
17%
|
|
≤25%
|
102
|
22%
|
|
≤50%
|
99
|
22%
|
|
≤75%
|
4
|
1%
|
|
≤100%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 456 (90%) custodial sentences imposed over the entire period had a median length of 4 years (Table A25). Figure A47 shows that while the number of charges sentenced in each financial year varied, the yearly distributions were consistent and established a steady cumulative median of 4 years for the five-year period.
Figure A47: Yearly distribution and cumulative median length of immediate custodial sentences imposed for charges of intentionally causing serious injury, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
127
|
0.0138889
|
2.5
|
4
|
5
|
11
|
4
|
|
2011–2012
|
102
|
0.25
|
3
|
3.5
|
4.625
|
10
|
4
|
|
2012–2013
|
92
|
0.2333333
|
2.5
|
4
|
5
|
12
|
4
|
|
2013–2014
|
86
|
0.25
|
3
|
5
|
5.5
|
10
|
4
|
|
2014–2015
|
49
|
0.75
|
3.5
|
4.5
|
6
|
10.5
|
4
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A48 shows these two measures for the offence of intentionally causing serious injury.
The IQR was 2 years, and it ranged from 3 years to 5 years.
The size of the difference between the median sentence length and all immediate custodial sentences imposed ranged from zero to 8 years. The median of these differences, the MAD value, is 1 year. This means that 50% of custodial sentence lengths are less than 1 year from the median (between 3 years and 5 years) and 50% are further than 1 year from the median.
Figure A48: Boxplot distribution of immediate custodial sentence lengths imposed for charges of intentionally causing serious injury, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
0.014
|
|
First quartile
|
3
|
|
Median
|
4
|
|
Third quartile
|
5
|
|
Longest
|
12
|
|
MAD lower limit
|
3
|
|
MAD upper limit
|
5
|
Offence 13. Recklessly causing serious injury
Definition: Causing serious injury to another person in a manner that was reckless as to whether that person would be seriously injured (a reasonable person could foresee that the person would be seriously injured).
Since 1 July 2013, the definition of ‘serious injury’ has narrowed to life-threatening injuries, the destruction of a foetus, and injuries that are substantial and protracted.
Offence characteristics
The offence is an indictable offence: Indictable offence, triable summarily.
The extent to which the offence is ‘prevalent’: 646 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
1,828 charges sentenced in the Magistrates’ Court between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: Yes. Where the victim is an emergency worker, a minimum non-parole period applies.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): Inconclusive. Aggravated forms (against an emergency worker) attract a minimum non-parole period of 2 years; other forms of this offence, such as ‘glassing’, are also considered aggravated.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Yes. Community attitudes research (Sentencing Advisory Council, 2012):
Tasmanian Jury Sentencing Study (violent offences); Victorian Jury Sentencing Study (violent offences).
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Community attitudes research (Vic); aggravated form for emergency workers, concerns about drunken violence and glassing incidents; increasing awareness of family violence and serious injury to partners and children.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 15 years (increased from 10 years in 1997).
Minimum non-parole period for some forms (emergency workers) introduced in 2014.
(Not a baseline offence.)
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Yes. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: Yes. Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658: declaration that current sentencing practices for glassing forms of recklessly causing serious injury are inadequate.
R v Tran [2009] VSCA 252 (12 October 2009): questioned why the top of the range is below 50% of the maximum.
Director of Public Prosecutions v Barnes and Barnes [2015] VSCA 293 (12 November 2015): sentences for recklessly causing serious injury recognised as lenient but not manifestly inadequate.
No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning: Yes. See sentencing data below: ‘immediate custodial sentence lengths over time’
Cumulative median fell from 2 years and 6 months in 2010–11 to 2 years and 3 months in 2014–15 and some fluctuation in yearly distribution of median over reference period.
Detailed data analysis (Appendix 9) provides limited evidence as analysis coincided with the abolition of suspended sentences. Data suggests a 25% (6-month) increase in the median imprisonment term imposed for recklessly causing serious injury glassing charges, and a 22 percentage-point increase in the proportion of recklessly causing serious injury glassing charges receiving immediate imprisonment (including a youth justice centre order and immediate imprisonment combined with a community correction order).
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: Yes. Inadequacy of current sentencing practices for glassing forms of recklessly causing serious injury identified in Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658.
Weight given to aggravating and mitigating factors: Yes. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 1 year and 6 months (1 year and 6 months to 3 years).
Median Absolute Difference (MAD) = 10 months.
Inconsistency of approach to glassing aggravation identified in Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658.
Categorisation of the objective seriousness of the offence: Yes. Median sentence does not fit in seriousness hierarchy of serious injury offences (lower than both intentionally causing serious injury and negligently causing serious injury) – but fits in seriousness hierarchy in community attitudes research.
Median lower than offence ranked at same level (armed robbery) but lower than negligently causing serious injury, which was ranked higher.
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 646 charges of recklessly causing serious injury were sentenced in the higher courts. Charges of recklessly causing serious injury carry a maximum penalty of 15 years.
Imprisonment was the most common sentence imposed for charges, and 77% of sentences imposed were immediate custodial sentences (Table A26).
Table A26: Number and percentage of charges of recklessly causing serious injury, by sentence type imposed, 2010–11 to 2014–15
|
Sentence typea
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
435
|
67%
|
|
Partially suspended sentence
|
25
|
4%
|
|
Community order
|
70
|
11%
|
|
Intensive correction order
|
1
|
<1%
|
|
Youth centre/supervision
|
38
|
6%
|
|
Wholly suspended sentence
|
77
|
12%
|
|
Total
|
646
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 14 days to 6 years (Table A27). The median immediate custodial sentence length of 2 years and 3 months is 15% of the maximum penalty.
Table A27: Descriptive statistics of immediate custodial sentences imposed for charges of recklessly causing serious injury, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
646
|
|
Immediate custodial sentences
|
496
|
|
Percentage immediate custodiala
|
77%
|
|
Shortest
|
14 days
|
|
Median
|
2 years and 3 months
|
|
Longest
|
6 years
|
|
Years from median to maximum penalty
|
12 years and 9 months
|
|
Median % of maximum penalty
|
15%
|
The distribution of immediate custodial sentence lengths in Figure A49 shows that sentences between 1 year and 6 months and 2 years were most common. Overall, 80% of custodial sentence lengths were 3 years or less.
Figure A49: Percentage of immediate custodial sentences imposed for charges of recklessly causing serious injury, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
13%
|
|
≤1.5
|
15%
|
|
≤2
|
22%
|
|
≤2.5
|
14%
|
|
≤3
|
17%
|
|
≤3.5
|
5%
|
|
≤4
|
8%
|
|
≤4.5
|
1%
|
|
≤5
|
3%
|
|
≤5.5
|
<1%
|
|
≤6
|
1%
|
In terms of the 15-year maximum penalty for recklessly causing serious injury, 86% of custodial sentences were 25% of the maximum penalty or less and 28% were 10% of the maximum penalty or less (Figure A50).
Figure A50: Percentage of immediate custodial sentences imposed for charges of recklessly causing serious injury, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
28
|
6%
|
|
≤10%
|
109
|
22%
|
|
≤15%
|
121
|
24%
|
|
≤20%
|
140
|
28%
|
|
≤25%
|
30
|
6%
|
|
≤50%
|
68
|
14%
|
|
≤75%
|
0
|
–
|
|
≤100%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 496 (77%) custodial sentences imposed over the entire period had a median length of 2 years and 3 months (Table A27). Figure A51 shows that while the sentence distributions were consistent, the charges sentenced in each financial year decreased the cumulative median sentence length from 2 years and 6 months in 2010–11 to 2 years and 3 months in 2014–15. The longest sentence length of 6 years was imposed in each year.
Figure A51: Yearly distribution and cumulative median immediate custodial sentence length imposed for charges of recklessly causing serious injury, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
120
|
0.17
|
1.67
|
2.5
|
3
|
6
|
2.5
|
|
2011–2012
|
116
|
0.25
|
1.5
|
2.25
|
3
|
6
|
2.33
|
|
2012–2013
|
121
|
0.25
|
1.5
|
2
|
3
|
6
|
2.25
|
|
2013–2014
|
82
|
0.04
|
1.5
|
2.5
|
3.31
|
6
|
2.25
|
|
2014–2015
|
57
|
0.08
|
1.25
|
2
|
3
|
6
|
2.208
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A52 shows these two measures for the offence of recklessly causing serious injury.
For this offence, the IQR was 1 year and 6 months, and it ranged from 1 year and 6 months to 3 years.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 3 years and 9 months. The median of these differences, the MAD value, is 10 months. This means that 50% of custodial sentence lengths are less than 10 months from the median (between 1 year and 5 months and 3 years and 1 month) and 50% are further than 10 months from the median.
Figure A52: Boxplot distribution of immediate custodial sentence lengths imposed for charges of recklessly causing serious injury, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
0.04
|
|
First quartile
|
1.5
|
|
Median
|
2.21
|
|
Third quartile
|
3
|
|
Longest
|
6
|
|
MAD lower limit
|
1.42
|
|
MAD upper limit
|
3
|
Offence 14. Negligently causing serious injury
Definition: Causing serious injury to another person in a manner that was negligent (usually occurs in the form of driving).
Since 1 July 2013, the definition of ‘serious injury’ has narrowed to life-threatening injuries, the destruction of a foetus, and injuries that are substantial and protracted.
Offence characteristics
The offence is an indictable offence: Indictable offence, triable summarily.
The extent to which the offence is ‘prevalent’: 197 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
99 charges sentenced in the Magistrates’ Court between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: No.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): No.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Yes. Community attitudes research (Sentencing Advisory Council, 2012):
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Concerns about the road toll and driving offences.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 10 years (increased from 5 years in 2008).
(Not a baseline offence.)
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Yes. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: Yes. Harrison v The Queen [2015] VSCA 349 (16 December 2015): declaration that current sentencing practices are inadequate for upper range cases of negligently causing serious injury by driving (and low and mid-range cases will need to adjust also).
No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning: Inconclusive. See sentencing data below: ‘immediate custodial sentence lengths over time’
Fluctuating yearly distribution of median and cumulative median over reference period, but note there has been insufficient time for Harrison to have affected sentencing practices as sentences imposed after this case are not included in period for data analysis.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: Yes. Current sentencing practices inadequate for upper range cases of negligently causing serious injury by driving: Harrison v The Queen [2015] VSCA 349 (16 December 2015).
Weight given to aggravating and mitigating factors: No. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 3 years (2 years to 5 years).
Median Absolute Difference (MAD) = 1 year and 4 months.
No evidence of inconsistent approach to factors in case reviews given in Harrison v The Queen [2015] VSCA 349 (16 December 2015) or Gorladenchearau v The Queen [2011] VSCA 432; (2011) 34 VR 149.
Categorisation of the objective seriousness of the offence: No. Higher median than offences ranked at same level (aggravated burglary and indecent act with a child under 16).
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 197 charges of negligently causing serious injury were sentenced in the higher courts. Negligently causing serious injury carries a maximum penalty of 10 years’ imprisonment.
Imprisonment was the most common sentence imposed for charges, and 91% of sentences were immediate custodial sentences (Table A28).[1049]
Table A28: Number and percentage of charges of negligently causing serious injury, by sentence type imposed, 2010–11 to 2014–15
|
Sentence typea
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
157
|
80%
|
|
Partially suspended sentence
|
9
|
5%
|
|
Community order
|
5
|
3%
|
|
Youth centre
|
13
|
7%
|
|
Wholly suspended sentence
|
12
|
6%
|
|
Fine
|
1
|
1%
|
|
Total
|
197
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 6 months to 8 years and 6 months (Table A29). The median custodial sentence length of 3 years is 30% of the maximum penalty.
Table A29: Descriptive statistics of immediate custodial sentences imposed for charges of negligently causing serious injury, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
197
|
|
Immediate custodial sentences
|
179
|
|
Percentage immediate custodial
|
91%
|
|
Shortest
|
6 months
|
|
Median
|
3 years
|
|
Longest
|
8 years and 6 months
|
|
Years from median to maximum penalty
|
7 years
|
|
Median % of maximum penalty
|
30%
|
The distribution of immediate custodial sentence lengths in Figure A53 shows that sentences between 4 years and 6 months and 5 years in length were most common. Overall, 3% of immediate custodial sentences were more than 5 years.
Figure A53: Percentage of immediate custodial sentences imposed for charges of negligently causing serious injury, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
7%
|
|
≤1.5
|
7%
|
|
≤2
|
14%
|
|
≤2.5
|
14%
|
|
≤3
|
11%
|
|
≤3.5
|
6%
|
|
≤4
|
5%
|
|
≤4.5
|
1%
|
|
≤5
|
32%
|
|
≤5.5
|
–
|
|
≤6
|
1%
|
|
≤6.5
|
–
|
|
≤7
|
–
|
|
≤7.5
|
–
|
|
≤8
|
–
|
|
≤8.5
|
2%
|
|
≤9
|
–
|
As a percentage of the 10-year maximum penalty for negligently causing serious injury, 42% of immediate custodial sentences were 25% of the maximum penalty or less (Figure A54). Over half of immediate custodial sentences imposed were between 25% and 50% of the maximum penalty.
Figure A54: Percentage of immediate custodial sentences imposed for charges of negligently causing serious injury, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
5
|
3%
|
|
≤10%
|
8
|
4%
|
|
≤15%
|
12
|
7%
|
|
≤20%
|
25
|
14%
|
|
≤25%
|
25
|
14%
|
|
≤50%
|
99
|
55%
|
|
≤75%
|
1
|
1%
|
|
≤100%
|
4
|
2%
|
Immediate custodial sentence lengths over time
The 179 (91%) custodial sentences imposed over the entire period had a median length of 3 years (Table A29). Figure A55 shows that the charges sentenced in each financial year had varied distributions, with the 84 sentences imposed in 2012–13 increasing the cumulative median to 3 years and 5 months. The cumulative median decreased to and remained at 3 years from 2013–14.
Figure A55: Yearly distribution and cumulative median immediate custodial sentence length imposed for charges of negligently causing serious injury, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
24
|
0.5
|
1.79
|
2.125
|
3.25
|
3.5
|
2.125
|
|
2011–2012
|
23
|
0.5
|
1.58
|
2.5
|
2.75
|
5.75
|
2.5
|
|
2012–2013
|
84
|
0.5
|
3
|
5
|
5
|
8.5
|
3.417
|
|
2013–2014
|
16
|
1.5
|
2
|
2
|
3
|
3.5
|
3
|
|
2014–2015
|
32
|
0.5
|
1.875
|
2.75
|
4
|
5
|
3
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A56 shows these two measures for the offence of negligently causing serious injury.
The IQR was 3 years, and it ranged from 2 years to 5 years.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 5 years and 6 months. The median of these differences, the MAD value, is 1 year and 4 months. This means that 50% of custodial sentence lengths are less than 1 year and 4 months from the median (between 1 year and 8 months and 4 years and 4 months) and 50% are further than 1 year and 4 months from the median.
Figure A56: Boxplot distribution of immediate custodial sentence lengths imposed for charges of negligently causing serious injury, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
0.5
|
|
First quartile
|
2
|
|
Median
|
3
|
|
Third quartile
|
5
|
|
Longest
|
8.5
|
|
MAD lower limit
|
1.67
|
|
MAD upper limit
|
4.33
|
Appendix 6: Drug offences data
Offence 15. Trafficking in a large commercial quantity of a drug of dependence
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.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 75 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: No.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): Yes. Aggravated by quantity.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: No. Community attitudes research (Sentencing Advisory Council, 2012):
Tasmanian Jury Sentencing Study (drug offences) (Victorian Jury Sentencing Study did not report findings on drug offences).
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Community concern over ice use and serious impact on communities.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = life imprisonment (created as a new aggravated offence in 2002).
Baseline offence (baseline sentence of 9 years).
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Inconclusive. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: Yes. Spiteri v The Queen [2011] VSCA 33; (2011) 206 A Crim R 528: comment that median sentence of 6 years and 6 months does not adequately reflect seriousness of large commercial quantity offences. Appeal was against sentence for cultivation of a large commercial quantity of a narcotic plant but median sentence taken from the Council’s Sentencing Snapshot on sentencing for the offence of trafficking in a large commercial quantity of a drug of dependence from 2004–05 to 2008–09.
No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning: Inconclusive. See sentencing data below: ‘immediate custodial sentence lengths over time’
No change in cumulative median, but some fluctuation in yearly distribution of median over reference period.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: No. Textual analysis of small sample of cases suggests consistent assessment of seriousness for categories of offenders (from courier to manager).
Weight given to aggravating and mitigating factors: No. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 3 years and 6 months (5 years to 8 years and 6 months).
Median Absolute Difference (MAD) = 2 years.
Textual analysis of small sample of cases suggests consistency in approach to aggravating and mitigating factors.
Categorisation of the objective seriousness of the offence: No. Textual analysis of small sample of cases suggests offenders with higher levels of culpability (those at higher role in offender hierarchy) are sentenced similarly to those in comparable role charged with cultivating a large commercial quantity of a narcotic plant.
Higher median than other offences viewed by the community to be equally serious (culpable driving causing death, negligently causing serious injury, aggravated burglary) but lower than manslaughter.
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 75 charges of trafficking in a large commercial quantity of a drug of dependence were sentenced in the higher courts. Trafficking in a large commercial quantity of a drug of dependence carries a maximum penalty of life imprisonment.
Imprisonment was the most common sentence imposed for charges, and 99% of sentences imposed were immediate custodial sentences (Table A30).
Table A30: Number and percentage of charges of trafficking in a large commercial quantity of a drug of dependence, by sentence type imposed, 2010–11 to 2014–15
|
Sentence type
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
73
|
97%
|
|
Partially suspended sentence
|
1
|
1%
|
|
Wholly suspended sentence
|
1
|
1%
|
|
Total
|
75
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 2 years and 6 months to 20 years (Table A31). The median custodial sentence length of 7 years is 18% of the maximum penalty.
Table A31: Descriptive statistics of immediate custodial sentences imposed for charges of trafficking in a large commercial quantity of a drug of dependence, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
75
|
|
Immediate custodial sentences
|
73
|
|
Percentage immediate custodiala
|
97%
|
|
Shortest
|
2 years and 6 months
|
|
Median
|
7 years
|
|
Longest
|
20 years
|
|
Years from median to maximum penalty
|
33 years
|
|
Median % of maximum penalty
|
18%
|
The distribution of immediate custodial sentence lengths in Figure A57 shows that sentences between 6 years and 6 months and 7 years were most common. Overall, 16% of custodial sentence lengths were more than 9 years.
Figure A57: Percentage of immediate custodial sentences imposed for charges of trafficking in a large commercial quantity of a drug of dependence, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
–
|
|
≤1.5
|
–
|
|
≤2
|
–
|
|
≤2.5
|
1%
|
|
≤3
|
11%
|
|
≤3.5
|
3%
|
|
≤4
|
5%
|
|
≤4.5
|
3%
|
|
≤5
|
8%
|
|
≤5.5
|
3%
|
|
≤6
|
4%
|
|
≤6.5
|
5%
|
|
≤7
|
16%
|
|
≤7.5
|
3%
|
|
≤8
|
10%
|
|
≤8.5
|
7%
|
|
≤9
|
3%
|
|
≤9.5
|
1%
|
|
≤10
|
4%
|
|
≤10.5
|
–
|
|
≤11
|
3%
|
|
≤11.5
|
1%
|
|
≤12
|
3%
|
|
≤12.5
|
–
|
|
≤13
|
1%
|
|
≤13.5
|
–
|
|
≤14
|
–
|
|
≤14.5
|
–
|
|
≤15
|
–
|
|
≤15.5
|
–
|
|
≤16
|
–
|
|
≤16.5
|
–
|
|
≤17
|
–
|
|
≤17.5
|
–
|
|
≤18
|
3%
|
|
≤18.5
|
–
|
|
≤19
|
–
|
|
≤19.5
|
–
|
|
≤20
|
1%
|
As a percentage of the life imprisonment maximum penalty for trafficking in a large commercial quantity of a drug of dependence, 88% of custodial sentences were 25% of the maximum penalty or less (Figure A58).
Figure A58: Percentage of immediate custodial sentences imposed for charges of trafficking in a large commercial quantity of a drug of dependence, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
0
|
–
|
|
≤10%
|
15
|
21%
|
|
≤15%
|
13
|
18%
|
|
≤20%
|
25
|
34%
|
|
≤25%
|
11
|
15%
|
|
≤50%
|
9
|
12%
|
|
≤75%
|
0
|
–
|
|
≤100%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 73 (97%) custodial sentences imposed over the entire period had a median length of 7 years (Table A31). Figure A59 shows that the small number of charges sentenced in each financial year established a cumulative median sentence length of 7 years from 2010–11 to 2011–12, after which the median decreased to 6 years and 10 months in 2012–13. The cumulative median immediate custodial sentence length returned to 7 years in 2013–14.
Figure A59: Yearly distribution and cumulative median immediate custodial sentence length imposed for charges of trafficking in a large commercial quantity of a drug of dependence, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
21
|
2.5
|
5
|
7
|
8
|
10
|
7
|
|
2011–2012
|
12
|
3
|
5.5
|
6.75
|
8.63
|
10
|
7
|
|
2012–2013
|
19
|
3
|
4.25
|
5
|
9.13
|
20
|
6.83
|
|
2013–2014
|
7
|
3
|
6
|
7
|
9.5
|
11.5
|
7
|
|
2014–2015
|
14
|
3
|
6.25
|
7
|
8.5
|
12
|
7
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A60 shows these two measures for the offence of trafficking in a large commercial quantity of a drug of dependence.
The IQR was 3 years and 6 months, and it ranged from 5 years to 8 years and 6 months.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 13 years. The median of these differences, the MAD value, is 2 years. This means that 50% of custodial sentence lengths are less than 2 years from the median (between 5 years and 9 years) and 50% are further than 2 years from the median (Figure A60).
Figure A60: Boxplot distribution of immediate custodial sentence lengths imposed for charges of trafficking in a large commercial quantity of a drug of dependence, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
2.5
|
|
First quartile
|
5
|
|
Median
|
7
|
|
Third quartile
|
8.5
|
|
Longest
|
20
|
|
MAD lower limit
|
5
|
|
MAD upper limit
|
9
|
Offence 16. Trafficking in a commercial quantity of a drug of dependence
Definition: Preparing, making, selling, exchanging, or agreeing to sell a commercial quantity of an illegal drug or attempting to do any of these things.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 186 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: No.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): Yes. Aggravated by quantity.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: No. Community attitudes research (Sentencing Advisory Council, 2012):
Tasmanian Jury Sentencing Study (drug offences) (Victorian Jury Sentencing Study did not report findings on drug offences).
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Community concern over ice use and serious impact on communities.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 25 years.
(Not a baseline offence.)
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Inconclusive. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: No. Not specific to this offence but see Court of Appeal cases noted above for other drug offences.
No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning: No. See sentencing data below: ‘immediate custodial sentence lengths over time’
n.a.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: No. Textual analysis of small sample of cases suggests consistent assessment of seriousness of categories of offenders (from courier to manager).
Weight given to aggravating and mitigating factors: No. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 1 year and 6 months (3 years to 4 years and 6 months).
Median Absolute Difference (MAD) = 1 year.
Textual analysis of small sample of cases suggests consistency in approach to aggravating and mitigating factors.
Categorisation of the objective seriousness of the offence: No. Textual analysis of small sample of cases suggests offenders with higher levels of culpability (those at higher role in offender hierarchy) are sentenced similarly to those in comparable role charged with cultivating a commercial quantity of a narcotic plant.
Highest median compared with other offences viewed by the community to be as serious (recklessly causing serious injury, armed robbery, sexual penetration with a child 12–16 under care, supervision, or authority).
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 186 charges of trafficking in a commercial quantity of a drug of dependence were sentenced in the higher courts. Trafficking in a commercial quantity of a drug of dependence carries a maximum penalty of 25 years’ imprisonment.
Imprisonment was the most common sentence imposed for charges, and 94% of sentences imposed were immediate custodial sentences (Table A32).
Table A32: Number and percentage of charges of trafficking in a commercial quantity of a drug of dependence, by sentence type imposed, 2010–11 to 2014–15
|
Sentence type
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
166
|
89%
|
|
Partially suspended sentence
|
8
|
4%
|
|
Community correction order
|
7
|
4%
|
|
Wholly suspended sentence
|
5
|
3%
|
|
Total
|
186
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 4 months to 10 years (Table A33). The median custodial sentence length of 4 years is 16% of the maximum penalty.
Table A33: Descriptive statistics of immediate custodial sentences imposed for charges of trafficking in a commercial quantity of a drug of dependence, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
186
|
|
Immediate custodial sentences
|
171
|
|
Percentage immediate custodiala
|
92%
|
|
Shortest
|
4 months
|
|
Median
|
4 years
|
|
Longest
|
10 years
|
|
Years from median to maximum penalty
|
21 years
|
|
Median % of maximum penalty
|
16%
|
The distribution of immediate custodial sentence lengths in Figure A61 shows that sentences between 3 years and 6 months and 4 years were most common, and 11% of sentences were over 5 years.
Figure A61: Percentage of immediate custodial sentences imposed for charges of trafficking in a commercial quantity of a drug of dependence, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
5%
|
|
≤1.5
|
2%
|
|
≤2
|
6%
|
|
≤2.5
|
7%
|
|
≤3
|
18%
|
|
≤3.5
|
9%
|
|
≤4
|
26%
|
|
≤4.5
|
6%
|
|
≤5
|
11%
|
|
≤5.5
|
3%
|
|
≤6
|
5%
|
|
≤6.5
|
–
|
|
≤7
|
1%
|
|
≤7.5
|
–
|
|
≤8
|
1%
|
|
≤8.5
|
–
|
|
≤9
|
–
|
|
≤9.5
|
–
|
|
≤10
|
1%
|
As a percentage of the 25-year maximum penalty for trafficking in a commercial quantity of a drug of dependence, 97% of immediate custodial sentences imposed were 25% of the maximum penalty or less (Figure A62).
Figure A62: Percentage of immediate custodial sentences imposed for charges of trafficking in a commercial quantity of a drug of dependence, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
9
|
5%
|
|
≤10%
|
25
|
15%
|
|
≤15%
|
49
|
29%
|
|
≤20%
|
70
|
41%
|
|
≤25%
|
13
|
8%
|
|
≤50%
|
5
|
3%
|
|
≤75%
|
0
|
–
|
|
≤100%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 171 (92%) custodial sentences imposed over the entire period had a median length of 4 years (Table A33). Figure A63 shows that the charges sentenced in each financial year established a cumulative median sentence length of 4 years only in 2014–15, with yearly distributions varying slightly.
Figure A63: Yearly distribution and cumulative median immediate custodial sentence length imposed for charges of trafficking in a commercial quantity of a drug of dependence, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
38
|
1.5
|
3
|
3.625
|
4
|
6
|
3.625
|
|
2011–2012
|
31
|
1.6666667
|
3
|
3.5
|
4.625
|
7
|
3.5
|
|
2012–2013
|
26
|
0.3425
|
2.8125
|
3.5833333
|
4.1875
|
6
|
3.5
|
|
2013–2014
|
39
|
0.49
|
3
|
4
|
4.25
|
10
|
3.7083333
|
|
2014–2015
|
37
|
0.5833333
|
3
|
4
|
4.5
|
5.75
|
4
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A64 shows these two measures for the offence of trafficking in a commercial quantity of a drug of dependence.
The IQR was 1 year and 6 months, and it ranged from 3 years to 4 years and 6 months.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 6 years. The median of these differences, the MAD value, is 1 year. This means that 50% of custodial sentence lengths are less than 1 year from the median (between 3 years and 5 years) and 50% are further than 1 year from the median.
Figure A64: Boxplot distribution of immediate custodial sentence lengths imposed for charges of trafficking in a commercial quantity of a drug of dependence, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
0.3425
|
|
First quartile
|
3
|
|
Median
|
4
|
|
Third quartile
|
4.5
|
|
Longest
|
10
|
|
MAD lower limit
|
3
|
|
MAD upper limit
|
5
|
Offence 17. Cultivating a large commercial quantity of a narcotic plant
Definition: Intentional cultivation of a narcotic plant (including sowing a seed, planting, growing, tending, nurturing, harvesting, grafting, or dividing) in not less than a large commercial quantity (currently 250kg or 1,000 plants), or attempting to do so.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 4 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: No.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): Yes. Aggravated by quantity.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: No. Community attitudes research (Sentencing Advisory Council, 2012):
Tasmanian Jury Sentencing Study (drug offences) (Victorian Jury Sentencing Study did not report findings on drug offences).
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Research on potential psychological harms.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = life imprisonment (created as a new aggravated offence in 2002).
(Not a baseline offence.)
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Inconclusive. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: Yes. Spiteri v The Queen [2011] VSCA 33; (2011) 206 A Crim R 528: comment that median sentence of 6 years and 6 months does not adequately reflect seriousness of large commercial quantity offences. Appeal was against sentence for cultivation of a large commercial quantity of a narcotic plant but median sentence taken from the Council’s Sentencing Snapshot on sentencing for offence of trafficking in a large commercial quantity of a drug of dependence from 2004–05 to 2008–09.
No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning: Yes. See sentencing data below: ‘immediate custodial sentence lengths over time’
Note very low number of charges.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: No. Textual analysis reveals consistent assessment of seriousness of categories of offenders (from crop-sitter to manager). Sample size very small.
Weight given to aggravating and mitigating factors: No. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 2 years (5 years and 5 months to 7 years and five months).
Median Absolute Difference (MAD) = 1 year.
Textual analysis suggests consistency in approach to aggravating and mitigating factors.
Categorisation of the objective seriousness of the offence: No. Textual analysis of small sample of cases suggests offenders with higher levels of culpability (those at higher role in offender hierarchy) are sentenced similarly to those in comparable role charged with trafficking in a large commercial quantity of a drug of dependence.
Median sentence is higher than intentionally causing serious injury and rape.
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 4 charges of cultivating a large commercial quantity of a narcotic plant were sentenced in the higher courts. Cultivating a large commercial quantity of a narcotic plant carries a maximum penalty of life imprisonment.
Imprisonment was imposed for all charges of this offence (Table A34).[1050]
Table A34: Number and percentage of charges of cultivating a large commercial quantity of a narcotic plant, by sentence type imposed, 2010–11 to 2014–15
|
Sentence type
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
4
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 2 years to 8 years and 6 months (Table A35). The median custodial sentence length of 6 years and 9 months is 17% of the maximum penalty.
Table A35: Descriptive statistics of immediate custodial sentences imposed for charges of cultivating a large commercial quantity of a narcotic plant, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
4
|
|
Immediate custodial sentences
|
4
|
|
Percentage immediate custodial
|
100%
|
|
Shortest
|
2 years
|
|
Median
|
6 years and 9 months
|
|
Longest
|
8 years and 6 months
|
|
Years from median to maximum penalty
|
33 years and 3 months
|
|
Median % of maximum penalty
|
17%
|
The distribution of immediate custodial sentence lengths in Figure A65 shows that sentences over 6 years were most common. One of the 4 custodial sentences (25%) was 2 years.
Figure A65: Percentage of immediate custodial sentences imposed for charges of cultivating a large commercial quantity of a narcotic plant, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
–
|
|
≤1.5
|
–
|
|
≤2
|
25%
|
|
≤2.5
|
–
|
|
≤3
|
–
|
|
≤3.5
|
–
|
|
≤4
|
–
|
|
≤4.5
|
–
|
|
≤5
|
–
|
|
≤5.5
|
–
|
|
≤6
|
–
|
|
≤6.5
|
25%
|
|
≤7
|
25%
|
|
≤7.5
|
–
|
|
≤8
|
–
|
|
≤8.5
|
25%
|
As a percentage of the life imprisonment maximum penalty for cultivating a large commercial quantity of a narcotic plant, all custodial sentences imposed were 25% of the maximum penalty or less (Figure A66).
Figure A66: Percentage of immediate custodial sentences imposed for charges of cultivating a large commercial quantity of a narcotic plant, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
1
|
25%
|
|
≤10%
|
0
|
–
|
|
≤15%
|
0
|
–
|
|
≤20%
|
2
|
50%
|
|
≤25%
|
1
|
25%
|
|
≤50%
|
0
|
–
|
|
≤75%
|
0
|
–
|
|
≤100%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 4 (100%) immediate custodial sentences imposed over the entire period had a median length of 6 years and 9 months (Table A35). Sentences were only imposed in 2012–13 and 2013–14. The 3 sentences imposed in 2013–14 were much higher than the sole sentence imposed in 2012–13, and they increased the cumulative median sentence length (Figure A67).
Figure A67: Yearly distribution and cumulative median immediate custodial sentence length imposed for charges of cultivating a large commercial quantity of a narcotic plant, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
0
|
–
|
–
|
–
|
–
|
–
|
–
|
|
2011–2012
|
0
|
–
|
–
|
–
|
–
|
–
|
–
|
|
2012–2013
|
1
|
2
|
2
|
2
|
2
|
2
|
2
|
|
2013–2014
|
3
|
6.5
|
6.75
|
7
|
7.75
|
8.5
|
6.75
|
|
2014–2015
|
0
|
–
|
–
|
–
|
–
|
–
|
6.75
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A68 shows these two measures for the offence of cultivating a large commercial quantity of a narcotic plant.
The IQR was 2 years, and it ranged from 5 years and 5 months to 7 years and 5 months.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from 3 months to 4 years and 9 months. The median of these differences, the MAD value, is 1 year. This means that 50% of custodial sentence lengths are less than 1 year from the median (between 5 years and 9 months and 7 years and 9 months) and 50% are further than 1 year from the median.
Figure A68: Boxplot distribution of immediate custodial sentence lengths imposed for charges of cultivating a large commercial quantity of a narcotic plant, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
2
|
|
First quartile
|
5.375
|
|
Median
|
6.75
|
|
Third quartile
|
7.375
|
|
Longest
|
8.5
|
|
MAD lower limit
|
5.75
|
|
MAD upper limit
|
7.75
|
Offence 18. Cultivating a commercial quantity of a narcotic plant
Definition: Intentional cultivation of a narcotic plant (including sowing a seed, planting, growing, tending, nurturing, harvesting, grafting, or dividing) in not less than a commercial quantity (currently 25kg or 100 plants), or attempting to do so.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 447 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: No.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): Yes. Aggravated by quantity.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: No. Community attitudes research (Sentencing Advisory Council, 2012):
Tasmanian Jury Sentencing Study (drug offences) (Victorian Jury Sentencing Study did not report findings on drug offences).
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Research on potential psychological harms.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 25 years.
(Not a baseline offence.)
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Inconclusive. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: No. Court of Appeal has been invited to consider the adequacy of current sentencing practices in cultivating a commercial quantity of a narcotic plant cases pursuant to the appeal of Nam Son Nguyen v The Queen S APCR 2015 0199.
See also Nguyen v The Queen (2010) 208 A Crim R 464.
No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning: No. See sentencing data below: ‘immediate custodial sentence lengths over time’
n.a.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: No. Textual analysis of small sample of cases suggests consistent assessment of seriousness of categories of offenders (from crop-sitter to manager).
Weight given to aggravating and mitigating factors: No. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 10 months (1 year and 8 months to 2 years and 6 months).
Median Absolute Difference (MAD) = 6 months.
Textual analysis of small sample of cases suggests consistency in approach to aggravating and mitigating factors.
Categorisation of the objective seriousness of the offence: No. Textual analysis of small sample of cases suggests offenders with higher levels of culpability (those at higher role in offender hierarchy) are sentenced similarly to those in comparable role charged with trafficking in a commercial quantity of a drug of dependence.
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 447 charges of cultivating a commercial quantity of a narcotic plant were sentenced in the higher courts. Cultivating a commercial quantity of a narcotic plant carries a maximum penalty of 25 years’ imprisonment.
Imprisonment was the most common sentence imposed for charges, and 88% of sentences were immediate custodial sentences (Table A36).
Table A36: Number and percentage of charges of cultivating a commercial quantity of a narcotic plant, by sentence type imposed, 2010–11 to 2014–15
|
Sentence type
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
316
|
71%
|
|
Partially suspended sentence
|
75
|
17%
|
|
Community-correction order
|
5
|
1%
|
|
Youth centre ordera
|
2
|
<1%
|
|
Wholly suspended sentence
|
48
|
11%
|
|
Fine
|
1
|
<1%
|
|
Total
|
447
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 2 months to 5 years and 3 months (Table A37). The median custodial sentence length of 2 years is 8% of the maximum penalty.
Table A37: Descriptive statistics of immediate custodial sentences imposed for charges of cultivating a commercial quantity of a narcotic plant, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
447
|
|
Immediate custodial sentences
|
385
|
|
Percentage immediate custodiala
|
86%
|
|
Shortest
|
2 months
|
|
Median
|
2 years
|
|
Longest
|
5 years and 3 months
|
|
Years from median to maximum penalty
|
23 years
|
|
Median % of maximum penalty
|
8%
|
The distribution of immediate custodial sentence lengths in Figure A69 shows that sentences between 1 year and 6 months and 2 years were most common, and 11% of sentences were over 3 years.
Figure A69: Percentage of immediate custodial sentences imposed for charges of cultivating a commercial quantity of a narcotic plant, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
8%
|
|
≤1.5
|
16%
|
|
≤2
|
34%
|
|
≤2.5
|
18%
|
|
≤3
|
13%
|
|
≤3.5
|
4%
|
|
≤4
|
4%
|
|
≤4.5
|
2%
|
|
≤5
|
2%
|
|
≤5.5
|
1%
|
As a percentage of the 25-year maximum penalty for cultivating a commercial quantity of a narcotic plant, all custodial sentences imposed were less than 25% of the maximum penalty (Figure A70).
Figure A70: Percentage of immediate custodial sentences imposed for charges of cultivating a commercial quantity of a narcotic plant, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
50
|
13%
|
|
≤10%
|
243
|
63%
|
|
≤15%
|
68
|
18%
|
|
≤20%
|
22
|
6%
|
|
≤25%
|
2
|
1%
|
|
≤50%
|
0
|
–
|
|
≤75%
|
0
|
–
|
|
≤100%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 385 (86%) custodial sentences imposed over the entire period had a median length of 2 years (Table A37). Figure A71 shows that the charges sentenced in each financial year established a cumulative median sentence length of 2 years for the entire five-year period. Each year to 2013–14 had a median sentence length of 2 years, while the median sentence length was 1 year and 6 months in 2014–15.
Figure A71: Yearly distribution and cumulative median immediate custodial sentence length imposed for charges of cultivating a commercial quantity of a narcotic plant, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
77
|
0.6483333
|
1.6666667
|
2
|
2.5
|
4
|
2
|
|
2011–2012
|
81
|
1
|
1.75
|
2
|
3
|
5
|
2
|
|
2012–2013
|
97
|
0.5
|
2
|
2
|
2.75
|
5.1666667
|
2
|
|
2013–2014
|
82
|
0.1666667
|
1.8333333
|
2
|
2.5
|
5.25
|
2
|
|
2014–2015
|
48
|
0.3333333
|
1
|
1.5
|
2
|
4.8333333
|
2
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A72 shows these two measures for the offence of cultivating a commercial quantity of a narcotic plant.
The IQR was 10 months, and it ranged from 1 year and 8 months to 2 years and 6 months.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 3 years and 3 months. The median of these differences, the MAD value, is 6 months. This means that 50% of custodial sentence lengths are less than 6 months from the median (between 1 year and 6 months and 2 years and 6 months) and 50% are further than 6 months from the median.
Figure A72: Boxplot distribution of immediate custodial sentence lengths imposed for charges of cultivating a commercial quantity of a narcotic plant, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
0.17
|
|
First quartile
|
1.67
|
|
Median
|
2
|
|
Third quartile
|
2.5
|
|
Longest
|
5.25
|
|
MAD lower limit
|
1.5
|
|
MAD upper limit
|
2.5
|
Drug offences: sample case analysis
Table A38: Sample case analysis for charges of cultivating a commercial quantity of a narcotic plant, 2010–11 to 2014–15
|
Data point
|
Sentence on charge
|
Number of cases examined
|
Plea
|
Case identifier
|
Case notes
|
|---|---|---|---|---|---|
|
Lowest
Total number of charges at data point: 1 |
2 months
|
1
|
Guilty (at committal mention)
|
D1
|
Offender was a ‘house sitter’; was not to benefit financially
from the crop; only commercial benefit was to live rent-free;
homeless at the
time he was recruited; significant physical disability.
|
|
First quartile
Total number of charges at data point: 21 |
1 year and 8 months
|
2
|
Guilty (at committal mention)
|
D2
|
Offender was essentially a ‘night watchman’; paid a few hundred
dollars a week to be in the house at night; but was also
involved in finding a
tenant who installed the crop; therefore had ‘more than a transitory
role’; impoverished background.
|
|
Guilty (at committal mention)
|
D3
|
Offender was a crop-sitter with no commercial interest in the crop; was
crop sitting for stable accommodation; several mitigating
factors; impoverished
background; to be deported after sentence.
|
|||
|
Median
Total number of charges at data point: 91 |
2 years
|
2
|
Guilty (late)
|
D4
|
Offender was jointly responsible with co-offender for establishment of a
‘sophisticated’ cannabis cultivation operation;
high moral
culpability; delay in prosecution.
|
|
Guilty
|
D5
|
Two crop sitters; both offered accommodation and payment for roles;
compelling mitigating circumstances for both offenders, including
impoverished
backgrounds.
|
|||
|
Third quartile
Total number of charges at data point: 38 |
2 years and 6 months
|
1
|
Guilty (early)
|
D6
|
Offender was ‘cultivator and maintainer of crop over two
months’; to be deported after sentence; impoverished background
and
circumstances.
|
|
Highest
Total number of charges at data point: 1 |
5 years and 3 months
|
1
|
Guilty (early)
|
D7
|
Set up ‘sophisticated and well maintained’ hydroponic crop with
one co-offender; priors for drug offences; mental health
issues; sentenced as a
serious drug offender.
|
Table A39: Sample case analysis for charges of cultivating a large commercial quantity of a narcotic plant, 2010–11 to 2014–15[1051]
|
Data point
|
Sentence on charge
|
Number of cases examined
|
Plea
|
Case identifier
|
Case notes
|
|---|---|---|---|---|---|
|
Lowest
Total number of charges at data point: 1 |
2 years
|
1
|
Guilty
|
D8
|
Offender tended to crop 3–4 days a week to pay off gambling debt;
large crop; to be deported after sentence.
|
|
–
Total number of charges at data point: 1 |
6 years and 6 months
|
1
|
Guilty (after committal)
|
D9
|
Offender at the ‘low non-entrepreneurial end of this drug cultivation
operation’ with co-offender (see D10); ‘contributed
to an enterprise
of a very large scale’; involved for monetary reward; ‘sophisticated
and prolonged’ operation
with expectation of very high profit to
controllers; mitigating circumstances (offender was a refugee whose claim for
asylum was
rejected; borderline intellectual disability).
|
|
–
Total number of charges at data point: 1 |
7 years
|
1
|
Guilty (early)
|
D10
|
Offender jointly involved in a crop with co-offender as part of a very
large-scale enterprise (see D9); not involved in financing,
leasing of the
property, or setting up of the crop (reported to those higher up); no priors;
‘not particularly remorseful’.
|
|
Highest
Total number of charges at data point: 1 |
8 years and 6 months
|
1
|
Guilty (late)
|
D11
|
Offender was ‘an overseer of some kind’, but still taking
direction from ‘someone above in chain of command’;
had ‘a
managerial role’ (had several phones, changed numberplates); no credit for
any genuine remorse; ‘largest
identified quantity of cannabis cultivated
or trafficked since the introduction of the large commercial quantity category
in 2002’.
|
Table A40: Sample case analysis for charges of trafficking in a commercial quantity of a drug of dependence, 2010–11 to 2014–15
|
Data point
|
Sentence on charge
|
Number of cases examined
|
Plea
|
Case identifier
|
Case notes
|
|---|---|---|---|---|---|
|
Lowest
Total number of charges at data point: 1 |
125 daysa
(combined with CCO with a condition of 200 work hours over 2 years) |
1
|
Guilty (early)
|
D12
|
Offender’s role was that of a courier (although the judge does not
state this explicitly); youthful offender (21 years old);
good prospects of
rehabilitation.
|
|
First quartile
Total number of charges at data point: 27 |
3 years
|
1
|
Guilty
|
D13
|
Offender ‘involved in the business of trafficking’ –
manufacture and distribution (no clear statement made on place
of offence in
hierarchy of seriousness); offender addicted to methamphetamine during offending
period.
|
|
Median
Total number of charges at data point: 40 |
4 years
|
1
|
Guilty (early)
|
D14
|
No comment made on role as such, but offender was found in possession of an
amount just over the commercial quantity; other possessions
suggesting
involvement in trafficking; offender addicted to methamphetamine during
offending period (but prospects of rehabilitation
noted as good).
|
|
Third quartile
Total number of charges at data point: 9 |
4 years and 6 months
|
1
|
Guilty (late)
|
D15
|
Offender in control of ‘a sophisticated drug manufacture and
distribution network’; directed and supervised others; however,
very
significant mitigating factors (life expectancy very short due to illness; had
cooperated with authorities in relation to a
murder investigation); sentence
altered on appeal on basis of fresh evidence that offender only had 3–6
months to live.
|
|
Highest
Total number of charges at data point: 1 |
10 years
|
1
|
Not guilty
|
D16
|
Offender ‘involved in virtually every facet of a trafficking business
... in the nature of high level organised crime’;
professional involvement
in the highest levels of the drug trade.
|
Table A41: Sample case analysis for charges of trafficking in a large commercial quantity of a drug of dependence, 2010–11 to 2014–15
|
Data point
|
Sentence on charge
|
Number of cases examined
|
Plea
|
Case identifier
|
Case notes
|
|---|---|---|---|---|---|
|
Lowest
Total number of charges at data point: 1 |
2 years and 6 months
|
1
|
Guilty
|
D17
|
Offender tried to extend his own supplies of amphetamines to make it go
further; ‘no element of commerciality by conduct’;
‘very
amateurish set up’; heavily addicted to amphetamines; mitigating
circumstances.
|
|
First quartile
Total number of charges at data point: 6 |
5 years
|
1
|
Guilty
|
D18
|
Offender was an ‘active participant’, and ‘more than a
go-between’ as part of a ‘commercial endeavour’;
suffering
from bereavement following death of father over period of offending; mental
functioning impaired at the time of offending;
reduced moral culpability (to
some extent).
|
|
Median
Total number of charges at data point: 10 |
7 years
|
1
|
Guilty (early)
|
D19
|
Offender a ‘trusted lieutenant working hand in glove with
co-offender’; suffering from drug addiction; objective gravity
of offence
described as ‘substantial’.
|
|
Third quartile
Total number of charges at data point: 5 |
8 years and 6 months
|
1
|
Guilty
|
D20
|
Offender identified as a ‘wholesaler’ to ‘make money
rather than merely to support [offender’s] own drug habit;
was
‘head’ of the business; ‘played a leading and very active role
in the planning for, and operation of, that
business’; drug user;
adjustment disorder with anxiety.
|
|
Highest
Total number of charges at data point: 1 |
20 years
|
1
|
Guilty (application to change plea was refused)
|
D21
|
Offender was the principal of a large drug enterprise; conducted self as a
‘manager’; offending over many years; significant
priors for similar
offending; coronary heart disease; sentenced as a serious drug offender.
|
Appendix 7:
Other offences data
Offence 19. Armed robbery
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.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 1,937 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: No.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): Yes. Aggravated form of robbery.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Inconclusive. Community attitudes research (Sentencing Advisory Council, 2012):
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Inconclusive. Consistently viewed as a prevalent offence that requires deterrent sentences: R v Pratt [2003] VSCA 186 (31 October 2003).
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 25 years (increased from 20 years in 1997).
(Not a baseline offence.)
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Inconclusive. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: No.
No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning: No. See sentencing data below: ‘immediate custodial sentence lengths over time’
n.a.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: No.
Weight given to aggravating and mitigating factors: No. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 1 year and 6 months (2 years to 3 years and 6 months).
Median Absolute Difference (MAD) = 8 months.
Categorisation of the objective seriousness of the offence: Inconclusive. Median higher than some offences viewed by the community to be as serious (recklessly causing serious injury) but lower than others (sexual penetration with a child 12–16 under care, supervision, or authority, trafficking in a commercial quantity of a drug of dependence).
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 1,937 charges of armed robbery were sentenced in the higher courts. Armed robbery carries a maximum penalty of 25 years’ imprisonment.
Imprisonment was the most common sentence imposed for charges, and 86% of all sentences imposed were immediate custodial sentences (Table A42).
Table A42: Number and percentage of charges of armed robbery, by sentence type imposed, 2010–11 to 2014–15
|
Sentence typea
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
1,445
|
75%
|
|
Partially suspended sentence
|
6
|
<1%
|
|
Community order
|
192
|
10%
|
|
Intensive correction order
|
6
|
<1%
|
|
Youth centre
|
210
|
11%
|
|
Wholly suspended sentence
|
72
|
4%
|
|
Fine
|
1
|
<1%
|
|
Other
|
4
|
<1%
|
|
Total
|
1,937
|
100%
|
The custodial sentences imposed over the five years ranged from 1 month to 14 years and 2 months (Table A43). The median custodial sentence length of 2 years and 6 months is 10% of the maximum penalty.
Table A43: Descriptive statistics of immediate custodial sentences imposed for charges of armed robbery, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
1,937
|
|
Immediate custodial sentences
|
1,594
|
|
Percentage immediate custodiala
|
82%
|
|
Shortest
|
1 month
|
|
Median
|
2 years and 6 months
|
|
Longest
|
14 years and 2 months
|
|
Years from median to maximum penalty
|
22 years and 6 months
|
|
Median % of maximum penalty
|
10%
|
The distribution of custodial sentence lengths in Figure A73 shows that sentences between 1 year and 6 months and 2 years were most common. Overall, 12% of sentences were over 4 years.
Figure A73: Percentage of immediate custodial sentences imposed for charges of armed robbery, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
8%
|
|
≤1.5
|
11%
|
|
≤2
|
19%
|
|
≤2.5
|
16%
|
|
≤3
|
19%
|
|
≤3.5
|
7%
|
|
≤4
|
9%
|
|
≤4.5
|
3%
|
|
≤5
|
5%
|
|
≤5.5
|
1%
|
|
≤6
|
1%
|
|
≤6.5
|
2%
|
|
≤7
|
<1%
|
|
≤7.5
|
<1%
|
|
≤8
|
<1%
|
|
≤8.5
|
<1%
|
|
≤9
|
–
|
|
≤9.5
|
–
|
|
≤10
|
<1%
|
|
≤10.5
|
–
|
|
≤11
|
–
|
|
≤11.5
|
–
|
|
≤12
|
–
|
|
≤12.5
|
–
|
|
≤13
|
–
|
|
≤13.5
|
–
|
|
≤14
|
–
|
|
≤14.5
|
<1%
|
In terms of the 25-year maximum penalty for armed robbery, 98% of custodial sentences were 25% of the maximum penalty or less, with 53% of sentences being 10% of the maximum penalty or less (Figure A74).
Figure A74: Percentage of immediate custodial sentences imposed for charges of armed robbery, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
183
|
11%
|
|
≤10%
|
668
|
42%
|
|
≤15%
|
414
|
26%
|
|
≤20%
|
258
|
16%
|
|
≤25%
|
41
|
3%
|
|
≤50%
|
29
|
2%
|
|
≤75%
|
1
|
<1%
|
|
≤100%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 1,594 (82%) custodial sentences imposed over the entire period had a median length of 2 years and 6 months (Table A43). Figure A75 shows that the charges sentenced in each financial year established a steady cumulative median sentence length of 2 years and 6 months for the entire period. The median custodial sentence imposed in each interval was also consistent at 2 years and 6 months for each year except 2012–13.
Figure A75: Yearly distribution and cumulative median immediate custodial sentence length imposed for charges of armed robbery, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
289
|
0.083
|
2
|
2.5
|
3.5
|
10
|
2.5
|
|
2011–2012
|
337
|
0.25
|
2
|
2.5
|
3.5
|
7.5
|
2.5
|
|
2012–2013
|
364
|
0.25
|
2
|
2.58
|
3.5
|
8
|
2.5
|
|
2013–2014
|
351
|
0.25
|
2
|
2.50
|
4
|
14.17
|
2.5
|
|
2014–2015
|
253
|
0.12
|
1.5
|
2.5
|
3
|
8.5
|
2.5
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A76 shows these two measures for the offence of armed robbery.
The IQR was 1 year and 6 months, and it ranged from 2 years to 3 years and 6 months.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 11 years and 8 months. The median of these differences, the MAD value, is 8 months. This means that 50% of custodial sentence lengths are less than 8 months from the median (between 1 year and 10 months and 3 years and 2 months) and 50% are further than 8 months from the median.
Figure A76: Boxplot distribution of immediate custodial sentence lengths imposed for charges of armed robbery, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
0.083
|
|
First quartile
|
2
|
|
Median
|
2.5
|
|
Third quartile
|
3.5
|
|
Longest
|
14.167
|
|
MAD lower limit
|
1.83
|
|
MAD upper limit
|
3.1667
|
Offence 20. Aggravated burglary
Definition: Going into a building without permission in order to commit an assault or a property damage offence punishable by 5 or more years’ imprisonment while:
Offence characteristics
The offence is an indictable offence: Indictable offence, triable summarily.
The extent to which the offence is ‘prevalent’: 1,172 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
1,271 charges sentenced in the Magistrates’ Court between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: No.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): Yes. Aggravated form of burglary.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: Yes. Community attitudes research (Sentencing Advisory Council, 2012):
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: Yes. Director of Public Prosecutions v El Hajje [2009] VSCA 160 (26 June 2009): recognised vulnerability of some victims in confrontational burglary situations (particularly where the offence is sexually motivated).
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 25 years (increased from 15 years in 1997).
(Not a baseline offence.)
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Yes. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: Yes. Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658: declaration that current sentencing practices are inadequate for serious cases of ‘confrontational’ aggravated burglary.
Director of Public Prosecutions v Meyers [2014] VSCA 314; (2014) 44 VR 486: suggested that current sentencing practices constraints have been removed for all serious forms of the offence.
Director of Public Prosecutions v El Hajje [2009] VSCA 160 (26 June 2009); Le v The Queen [2010] VSCA 199 (20 July 2010): adequacy of current sentencing practices questioned.
No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning: Yes. See sentencing data below: ‘immediate custodial sentence lengths over time’
Slight increases in yearly distribution of median and cumulative median from 2013–14 to 2014–15. Detailed data analysis (Appendix 9) indicates that cumulative median sentences have only increased by 6 months for aggravated burglary since Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: Yes. Sentencing for serious forms of the offence inadequate: Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658.
Weight given to aggravating and mitigating factors: Inconclusive. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 1 year and 6 months (1 year and 6 months to 3 years).
Median Absolute Difference (MAD) = 10 months.
Categorisation of the objective seriousness of the offence: Yes. Lower median than offences ranked as equally serious (manslaughter, culpable driving causing death, and negligently causing serious injury) although higher median than that for indecent act with a child under 16.
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 1,172 charges of aggravated burglary were sentenced in the higher courts. Charges of aggravated burglary carry a maximum penalty of 25 years’ imprisonment.
Imprisonment was the most common sentence imposed for charges, and 69% of sentences imposed were immediate custodial sentences (Table A44).
Table A44: Number and percentage of charges of aggravated burglary, by sentence type imposed, 2010–11 to 2014–15
|
Sentence typea
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
719
|
61%
|
|
Partially suspended sentence
|
38
|
3%
|
|
Community order
|
224
|
19%
|
|
Intensive correction order
|
5
|
<1%
|
|
Youth centre/supervision
|
53
|
5%
|
|
Wholly suspended sentence
|
127
|
11%
|
|
Fine
|
3
|
<1%
|
|
Adjourned undertaking with conviction
|
3
|
<1%
|
|
Total
|
1,172
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 1 month to 9 years (Table A45). The median custodial sentence length of 2 years and 6 months is 10% of the maximum penalty.
Table A45: Descriptive statistics of immediate custodial sentences imposed for charges of aggravated burglary, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
1,172
|
|
Immediate custodial sentences
|
765
|
|
Percentage immediate custodiala
|
65%
|
|
Shortest
|
1 month
|
|
Median
|
2 years and 6 months
|
|
Longest
|
9 years
|
|
Years from median to maximum penalty
|
22 years and 6 months
|
|
Median % of maximum penalty
|
10%
|
The distribution of immediate custodial sentence lengths in Figure A77 shows that sentences between 1 year and 6 months and 2 years were most common.
Figure A77: Percentage of immediate custodial sentences imposed for charges of aggravated burglary, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
11%
|
|
≤1.5
|
15%
|
|
≤2
|
20%
|
|
≤2.5
|
16%
|
|
≤3
|
14%
|
|
≤3.5
|
6%
|
|
≤4
|
8%
|
|
≤4.5
|
2%
|
|
≤5
|
4%
|
|
≤5.5
|
1%
|
|
≤6
|
2%
|
|
≤6.5
|
1%
|
|
≤7
|
<1%
|
|
≤7.5
|
–
|
|
≤8
|
–
|
|
≤8.5
|
–
|
|
≤9
|
<1%
|
As a percentage of the 25-year maximum penalty for aggravated burglary, almost all immediate custodial sentences imposed were 25% of the maximum penalty or less, with 63% of sentences being 10% of the maximum penalty or less (Figure A78).
Figure A78: Percentage of immediate custodial sentences imposed for charges of aggravated burglary, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
131
|
17%
|
|
≤10%
|
348
|
45%
|
|
≤15%
|
161
|
21%
|
|
≤20%
|
96
|
13%
|
|
≤25%
|
19
|
2%
|
|
≤50%
|
10
|
1%
|
|
≤75%
|
0
|
–
|
|
≤100%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 765 (65%) custodial sentences imposed over the entire period had a median length of 2 years and 6 months (Table A45). Figure A79 shows that the charges sentenced in each financial year established a cumulative median sentence length of 2 years from 2010–11 to 2012–13 after which the median increased to 2 years and 6 months by 2014–15. Sentences of less than one year were imposed in each year.
Figure A79: Yearly distribution and cumulative median immediate custodial sentence length imposed for charges of aggravated burglary, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
172
|
0.408
|
1.67
|
2
|
3
|
9
|
2
|
|
2011–2012
|
173
|
0.25
|
1.75
|
2
|
2.67
|
9
|
2
|
|
2012–2013
|
168
|
0.18
|
1.25
|
2
|
3
|
6.5
|
2
|
|
2013–2014
|
143
|
0.108
|
2
|
2.5
|
3.5
|
7
|
2.25
|
|
2014–2015
|
109
|
0.21
|
1.67
|
3
|
3.5
|
6.75
|
2.5
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A80 shows these two measures for the offence of aggravated burglary.
The IQR was 1 year and 6 months, and it ranged from 1 year and 6 months to 3 years.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 6 years and 6 months. The median of these differences, the MAD value, is 10 months. This means that 50% of custodial sentences are within 10 months of the median sentence length (between 1 year and 8 months and 3 years and 4 months) and 50% are more than 10 months from the median.
Figure A80: Boxplot distribution of immediate custodial sentence lengths imposed for charges of aggravated burglary, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
0.11
|
|
First quartile
|
1.5
|
|
Median
|
2.5
|
|
Third quartile
|
3
|
|
Longest
|
9
|
|
MAD lower limit
|
1.67
|
|
MAD upper limit
|
3.33
|
Offence 21. Perverting the course of justice
Definition: Committing an act that is capable of perverting the course of justice and committing the act with that intent.
Can be committed in a variety of circumstances including assisting an offender or witness to abscond, making a false accusation of a crime, concocting a false alibi, concealing or falsifying evidence, and attempting to bribe police, witnesses, or the judiciary.
Offence characteristics
The offence is an indictable offence: Indictable offence.
The extent to which the offence is ‘prevalent’: 137 charges sentenced in the higher courts between 1 July 2010 and 30 June 2015.
Objective elements involve a vulnerable victim: No.
The offence is an ‘aggravated offence’ (offence objectively more serious than a ‘basic’ version of the offence): No.
Problem with sentencing: evidence of a lack of public confidence
Evidence from informed and structured community consultation of community views on sentencing/seriousness of the offence: No.
Offence involves a special risk of serious consequences to victims and the community, and there is a better understanding of such consequences: No.
Parliament’s view of offence seriousness (significant or increased maximum penalty or other legislative reform, e.g.: baseline offence): Yes. Maximum penalty = 25 years.
(Not a baseline offence.)
Disparity between current sentencing practices and the community’s and parliament’s views of offence seriousness: Inconclusive. See sentencing data below: ‘distribution of sentences and comparison with maximum penalty’
Distribution of immediate custodial sentences:
Comparison with maximum penalty:
Court of Appeal declaration that current sentencing practices are inadequate or questioning of adequacy of current sentencing practices: No.
No evidence of change in current sentencing practices following the Court of Appeal’s declaration or questioning: No. See sentencing data below: ‘immediate custodial sentence lengths over time’
n.a.
Problem with sentencing: evidence of inconsistency of approach
Treatment of a category of offenders within the offence category: No.
Weight given to aggravating and mitigating factors: Inconclusive. See sentencing data below: ‘measures of consistency’
Interquartile range (IQR) = 1 year and 4 months (8 months to 2 years).
Median Absolute Difference (MAD) = 6 months.
Sample of cases indicated consistent identification of high- and low-range offences.
Categorisation of the objective seriousness of the offence: Inconclusive. Low median, but offence recognised as having range of offending of low seriousness that would justify short and non-custodial sentences: Director of Public Prosecutions v Aydin and Kirsch [2005] VSCA 86 (3 May 2005).
Sentencing data: sentences imposed for charges in the higher courts, 2010–11 to 2014–15
Distribution of sentences and comparison with maximum penalty
Between 1 July 2010 and 30 June 2015, 137 charges of perverting the course of justice were sentenced in the higher courts. Perverting the course of justice carries a maximum penalty of 25 years’ imprisonment.
Imprisonment was the most common sentence imposed on charges of perverting the course of justice, and 51% of sentences imposed were immediate custodial sentences (Table A46).
Table A46: Number and percentage of charges of perverting the course of justice, by sentence type imposed, 2010–11 to 2014–15
|
Sentence typea
|
Number
|
Percentage
|
|---|---|---|
|
Imprisonment
|
60
|
44%
|
|
Partially suspended sentence
|
10
|
7%
|
|
Community order
|
22
|
16%
|
|
Wholly suspended sentence
|
26
|
19%
|
|
Fine
|
10
|
7%
|
|
Other
|
9
|
7%
|
|
Total
|
137
|
100%
|
The immediate custodial sentences imposed over the five years ranged from 1 month to 8 years. The median custodial sentence length of 1 year is 4% of the maximum penalty (Table A47).
Table A47: Descriptive statistics of immediate custodial sentences imposed for charges of perverting the course of justice, 2010–11 to 2014–15
|
Statistic
|
Value
|
|---|---|
|
Total charges
|
137
|
|
Immediate custodial sentences
|
69
|
|
Percentage immediate custodiala
|
50%
|
|
Shortest
|
1 month
|
|
Median
|
1 year
|
|
Longest
|
8 years
|
|
Years from median to maximum penalty
|
24 years
|
|
Median % of maximum penalty
|
4%
|
The distribution of immediate custodial sentence lengths in Figure A81 shows that sentences under 1 year in length were most common. Overall, 97% of sentences were 3 years or less.
Figure A81: Percentage of immediate custodial sentences imposed for charges of perverting the course of justice, by sentence length, 2010–11 to 2014–15
|
Custodial sentence length (years)
|
Percentage of custodial sentences
|
|---|---|
|
≤1
|
58%
|
|
≤1.5
|
12%
|
|
≤2
|
9%
|
|
≤2.5
|
12%
|
|
≤3
|
7%
|
|
≤3.5
|
–
|
|
≤4
|
–
|
|
≤4.5
|
–
|
|
≤5
|
–
|
|
≤5.5
|
–
|
|
≤6
|
–
|
|
≤6.5
|
–
|
|
≤7
|
–
|
|
≤7.5
|
–
|
|
≤8
|
3%
|
As a percentage of the maximum penalty of 25 years’ imprisonment for perverting the course of justice, 97% of custodial sentence lengths were 25% of the maximum penalty or less (Figure A82).
Figure A82: Percentage of immediate custodial sentences imposed for charges of perverting the course of justice, by the proportion of the maximum penalty represented by the sentence length, 2010–11 to 2014–15
|
Immediate custodial sentence length percentage of maximum
penalty
|
Number of custodial sentences
|
Percentage of custodial sentences
|
|---|---|---|
|
≤5%
|
42
|
61%
|
|
≤10%
|
20
|
29%
|
|
≤15%
|
5
|
7%
|
|
≤20%
|
0
|
–
|
|
≤25%
|
0
|
–
|
|
≤50%
|
2
|
3%
|
|
≤75%
|
0
|
–
|
|
≤100%
|
0
|
–
|
Immediate custodial sentence lengths over time
The 69 (50%) custodial sentences imposed over the entire period had a median length of 1 year (Table A47). Figure A83 shows that the small number of sentences imposed decreased the median from 2 years in 2010–11 and 2011–12 to 1 year from 2012–13 to 2014–15. Yearly medians reached a low of 9 months in 2012–13 and 2013–14, and each financial year contained sentences of 3 months in length or less.
Figure A83: Yearly distribution and cumulative median immediate custodial sentence length imposed for charges of perverting the course of justice, by financial year, 2010–11 to 2014–15
|
Sentence period
|
Number of sentences imposed
|
Custodial sentence length (years)
|
|||||
|---|---|---|---|---|---|---|---|
|
Shortest
|
First quartile
|
Median
|
Third quartile
|
Longest
|
Cumulative median
|
||
|
2010–2011
|
9
|
0.083
|
1
|
2
|
3
|
8
|
2
|
|
2011–2012
|
19
|
0.25
|
0.75
|
2
|
2.5
|
8
|
2
|
|
2012–2013
|
12
|
0.25
|
0.479
|
0.75
|
1.083
|
2.3
|
1
|
|
2013–2014
|
14
|
0.17
|
0.688
|
0.75
|
1.438
|
2.5
|
1
|
|
2014–2015
|
15
|
0.33
|
0.625
|
1
|
1.25
|
3
|
1
|
Measures of consistency
Two measures of statistical consistency of immediate custodial sentences were analysed: the interquartile range (IQR) and median absolute difference (MAD) (see Glossary). Figure A84 shows these two measures for the offence of perverting the course of justice.
The IQR was 1 year and 4 months, and it ranged from 8 months to 2 years.
The size of the difference between the median sentence length and all custodial sentences imposed ranged from zero to 7 years. The median of these differences, the MAD value, is 6 months. This means that 50% of custodial sentence lengths are less than 6 months from the median (between 6 months and 1 year and 6 months) and 50% are further than 6 months from the median.
Figure A84: Boxplot distribution of immediate custodial sentence lengths imposed for charges of perverting the course of justice, 2010–11 to 2014–15
|
Custodial sentence length measure
|
Custodial sentence length (years)
|
|---|---|
|
Shortest
|
0.08
|
|
First quartile
|
0.67
|
|
Median
|
1
|
|
Third quartile
|
2
|
|
Longest
|
8
|
|
MAD lower limit
|
0.5
|
|
MAD upper limit
|
1.5
|
Offences 22 & 23. Offences under section 61 of the Road Safety Act 1986 (Vic)
Definition and maximum penalty
Three forms of the offence:
1. Failure to stop after an accident and failure to render assistance after an accident resulting in death or serious injury.
Maximum penalty: 10 years and/or a fine of 1,200 penalty units
Offence elements:
2. Failure to give details to affected persons, failure to give details to police, and failure to report accident to the police following an accident where a person is killed or seriously injured.
Maximum penalty:
3. Failure to comply with any of the above requirements in section 61 where no person is injured or killed (i.e., the accident only results in property damage).
Maximum penalty:
The offence is an indictable offence: Indictable offence triable summarily.
The extent to which the offence is ‘prevalent’: See Table A48 on prevalence in the higher courts and Magistrates’ Court.
Table A48: Sentencing data: sentences imposed for all charges under section 61 in the higher courts and Magistrates’ Court, 2010–11 to 2014–15
|
Jurisdiction
|
Total charges
|
Remarks available
|
Percentage with remarks
|
|---|---|---|---|
|
Higher courts
|
104
|
55
|
53%
|
|
Magistrates’ Court
|
12,488
|
0
|
0%
|
Appendix 8: Magistrates’ Court data
The tables below show sentencing outcomes in the Magistrates’ Court for the possible problem offences that are indictable triable summarily and for which there were data. The number of aggregate sentences imposed for offences is shown in a separate column. Immediate non-aggregate sentence types and the numbers of each are shaded. These sentences are included in Table A51, which shows sentence length statistics.
Table A49: Sentencing outcomes for indecent act with a child under 16 and aggravated burglary, Magistrates’ Court, 2010–11 to 2014–15
|
Magistrates’ Court
|
Indecent act with a child under 16
|
Aggravated burglary
|
||
|---|---|---|---|---|
|
Most serious penalty for charge
|
Non-aggregate
|
Aggregate
|
Non-aggregate
|
Aggregate
|
|
Imprisonment
|
111
|
117
|
180
|
560
|
|
Partially suspended sentence
|
12
|
42
|
5
|
55
|
|
Combined custody and treatment order
|
|
|
|
4
|
|
Drug treatment order
|
|
|
|
14
|
|
Intensive correction order
|
3
|
8
|
7
|
19
|
|
Wholly suspended sentence
|
48
|
71
|
23
|
78
|
|
Youth justice centre order
|
|
|
66
|
|
|
Community correction order
|
267
|
|
185
|
|
|
Community-based order
|
81
|
|
24
|
|
|
Fine
|
21
|
20
|
2
|
15
|
|
Adjourned undertaking
|
53
|
|
30
|
|
|
Diversion
|
15
|
|
4
|
|
|
Convicted and discharged
|
1
|
|
|
|
|
Dismissed
|
1
|
|
|
|
|
Total sentences for offence
|
871
|
1,271
|
||
Table A50: Sentencing outcomes for recklessly causing serious injury and negligently causing serious injury, Magistrates’ Court, 2010–11 to 2014–15
|
Magistrates’ Court
|
Recklessly causing serious injury
|
Negligently causing serious injury
|
||
|---|---|---|---|---|
|
Most serious penalty for charge
|
Non-aggregate
|
Aggregate
|
Non-aggregate
|
Aggregate
|
|
Imprisonment
|
283
|
213
|
15
|
10
|
|
Partially suspended sentence
|
69
|
43
|
4
|
1
|
|
Home detention order
|
|
|
|
1
|
|
Intensive correction order
|
97
|
33
|
1
|
4
|
|
Wholly suspended sentence
|
260
|
111
|
20
|
12
|
|
Youth justice centre order
|
43
|
|
3
|
|
|
Community correction order
|
322
|
|
10
|
|
|
Community-based order
|
118
|
|
3
|
|
|
Fine
|
112
|
41
|
4
|
6
|
|
Adjourned undertaking
|
51
|
|
2
|
|
|
Diversion
|
31
|
|
3
|
|
|
Dismissed
|
1
|
|
|
|
|
Total sentences for offence
|
1,828
|
99
|
||
Table A51: Sentencing statistics for possible problem offences (indictable triable summarily), Magistrates’ Court, 2010–11 to 2014–15
|
Possible problem offence (indictable triable summarily)
|
Immediate custodial sentences
|
% of all sentences for offence
|
Sentence measures
|
||
|---|---|---|---|---|---|
|
Minimum
|
Median
|
Maximum
|
|||
|
Aggravated burglary
|
258
|
20%
|
14 days
|
1 year
|
2 years
|
|
Indecent act with a child under 16
|
126
|
14%
|
14 days
|
8 months
|
2 years
|
|
Recklessly causing serious injury
|
492
|
27%
|
6 days
|
9 months
|
2 years
|
|
Negligently causing serious injury
|
23
|
23%
|
2 months
|
1 year
|
2 years
|
Appendix 9: Analysis of sentencing practices following inadequacy declaration
Recklessly causing serious injury by glassing
Sentencing practices pre-Winch
In the case of Winch v The Queen (Winch),[1052] the majority of the Court of Appeal presented a table of cases of recklessly causing serious injury by glassing along with data on the sentence imposed for the relevant charge of recklessly causing serious injury.
The Council has adapted this table to include the resentenced Winch case and another case[1053] determined after Winch, but pleaded to prior to Winch and therefore sentenced under pre-existing current sentencing practices. This table of pre-Winch cases is presented below.
When calculated on the length of the term imposed on the charge (regardless of whether that term is wholly or partially suspended, or required to be served immediately) the median sentence for this subset of cases was 2 years.[1054]
When calculated solely on charges that received a term of imprisonment required to be served immediately or youth justice centre order, the median pre-Winch was also 2 years. The longest sentence was 2 years and 6 months.
The distribution of sentence types pre-Winch was:
Sentencing practices post-Winch
The Council has examined data from available sentencing remarks for cases including a charge of recklessly causing serious injury by glassing. Table A52 presents the number of cases of recklessly causing serious injury by their sentencing remarks availability and the overall proportion of remarks available to be analysed (almost three-quarters, or 74.3%).
The Council analysed sentencing remarks for cases of recklessly causing serious injury by glassing, by searching the available sentencing remarks for the terms ‘glassing’, ‘glass’, and ‘Winch’.
Post-Winch cases of recklessly causing serious injury by glassing are presented in Table A55. Twenty-one relevant cases involving recklessly causing serious injury by glassing were identified from the available sentencing remarks.
Table A52: Higher courts cases including a charge of recklessly causing serious injury, by availability of sentencing remarks, 2010–11 to 2014–15
|
|
2010–11
|
2011–12
|
2012–13
|
2013–14
|
2014–15
|
Total
|
Percent
|
|---|---|---|---|---|---|---|---|
|
Remarks present
|
121
|
122
|
93
|
77
|
50
|
463
|
74.3%
|
|
Remarks not present
|
36
|
27
|
49
|
23
|
25
|
160
|
25.7%
|
|
Total cases
|
157
|
149
|
142
|
100
|
75
|
623
|
100%
|
Analysis of the sentencing outcomes pre- and post-Winch assumes that the nature of the glassing offences, in terms of the level of objective seriousness of offending and matters personal to the offenders, are relatively consistent between the two periods.
This issue (of unknown variation) would ordinarily be compounded by the relatively low number of cases within the two periods being compared; however, the similarity of offending in glassing cases, which brings them into the subset of cases being examined, is likely to counter the effect of small numbers.
The Council’s analysis of all available sentencing decisions for the subset of recklessly causing serious injury by glassing cases showed that every one of the sentencing remarks for the 21 cases mentioned Winch and commonly cited passages from the Court of Appeal’s judgment.
When calculated on the length of the term imposed on a charge,[1055] the median sentence for this subset of recklessly causing serious injury cases post-Winch was 2 years and 3 months (an increase of 3 months).
When calculated solely on charges that received a term of imprisonment required to be served immediately or detention in a youth justice centre, the median post-Winch was 2 years and 6 months (an increase of 6 months). The longest sentence was 3 years and 3 months.
The distribution of sentence types post-Winch was:
• a community correction order (5%, n=1).[1056]
Table A53: Sentencing statistics for glassing recklessly causing serious injury, by sentencing before or after 17 June 2010, 2006–07 to 2012–13
|
Glassing recklessly causing serious injury sentenced before/after
Winch
|
Number of charges
|
Number of charges sentenced to imprisonmenta
|
Minimum (years)
|
Median
(years) |
Maximum
(years) |
|---|---|---|---|---|---|
|
Before
|
18
|
9
|
18 months
|
2 years
|
2 years and 9 months
|
|
After
|
21
|
15
|
10 months
|
2 years and 6 months
|
3 years and 3 months
|
In summary, post-Winch, there has been a 25% increase in the median imprisonment term imposed for charges of recklessly causing serious injury by glassing, and a 22 percentage-point increase in the proportion of charges of recklessly causing serious injury by glassing receiving immediate imprisonment (including a youth justice centre order and immediate imprisonment combined with a community correction order).
Cases pre-Winch
Table A54: Recklessly causing serious injury ‘glassing’ cases sentenced from 2007 to 2009 (adapted from ‘Appendix A’ to the majority judgment of Winch), by court, date of sentence and sentencing outcome on the relevant charge
|
Name
|
Court
|
Date
|
Sentencing Order
|
|---|---|---|---|
|
Pre-W1a
|
County Court
|
2007
|
9 months’ imprisonment wholly suspended for 2 years
|
|
Pre-W2
|
County Court
|
2007
|
2 years’ imprisonment – 12 months partially suspended for 18
months
|
|
Pre-W3
|
County Court
|
2007
|
18 months’ imprisonment (part of a TES with NPP fixed)
|
|
Pre-W4
|
County Court
|
2007
|
15 months’ imprisonment wholly suspended for 18 months
|
|
Pre-W5
|
County Court
|
2008
|
2 years’ imprisonment wholly suspended for 3 years
|
|
Pre-W6
|
County Court
|
2008
|
12 months’ imprisonment – NPP of 3 months fixed
|
|
Pre-W7
|
County Court
|
2008
|
12 months’ imprisonment wholly suspended for 3 years
|
|
Pre-W8
|
County Court
|
2009
|
16 months’ imprisonment wholly suspended for 2 years
|
|
R v Trowsdale
|
Court of Appeal
|
30/3/2011
|
2 years and 9 months’ imprisonment – NPP of 2 years fixed
|
|
Pre-W9
|
County Court
|
2009
|
18 months’ imprisonment wholly suspended for 2 years
|
|
Pre-W10
|
County Court
|
2009
|
2 years’ imprisonment – NPP of 12 months fixed
|
|
Pre-W11
|
County Court
|
2009
|
2 years and 6 months’ imprisonment – NPP of 16 months
fixed
|
|
Pre-W12
|
County Court
|
2009
|
2 years and 9 months’ imprisonment – NPP of 1 year and 9 months
fixed
|
|
Pre-W13
|
County Court
|
2009
|
20 months’ imprisonment wholly suspended for 2 years
|
|
Pre-W14
|
County Court
|
2009
|
2 years’ imprisonment wholly suspended for 3 years
|
|
Pre-W15
|
County Court
|
2009
|
2 years’ detention in a youth justice centre
|
|
R v Winch
|
Court of Appeal
|
17/6/2010
|
2 years and 9 months’ imprisonment – NPP of 15 months
fixed
|
|
Pre-W16b
|
County Court
|
2011
|
2 years’ imprisonment – NPP of 12 months fixed
|
Cases post-Winch
Table A55: Recklessly causing serious injury ‘glassing’ cases sentenced from 2010–11 to 2013–14, where convicted after trial, or plea entered after Winch, by court, date of sentence and sentencing outcome on the relevant charge[1057]
|
Name
|
Court
|
Date
|
Sentencing Order
|
|---|---|---|---|
|
Post-W1a
|
County Court
|
2010
|
2 years’ imprisonment (part of a TES with NPP fixed)
|
|
Post-W2
|
County Court
|
2010
|
2 years and 6 months’ imprisonment (part of a TES with NPP
fixed)
|
|
Post-W3
|
County Court
|
2010
|
20 months’ imprisonment wholly suspended for 2 years
|
|
Post-W4
|
County Court
|
2010
|
3 years and 3 months’ imprisonment on recklessly causing serious
injury charge (part of a TES with NPP fixed)
|
|
Post-W5
|
County Court
|
2010
|
18 months’ imprisonment, all but 363 days suspended (363 days of time
served).
|
|
Post-W6
|
County Court
|
2011
|
15 months’ detention in a youth justice centre
|
|
Post-W7
|
County Court
|
2011
|
2 years and 9 months’ imprisonment – NPP of 17 months
fixed
|
|
Post-W8
|
County Court
|
2011
|
2 years’ imprisonment wholly suspended for 3 years
|
|
Post-W9
|
County Court
|
2011
|
2 years and 6 months’ imprisonment – NPP of 12 months
fixed
|
|
Post-W10
|
County Court
|
2011
|
2 years’ imprisonment with 18 months suspended for 2 years
|
|
Post-W11
|
County Court
|
2011
|
2 years and 3 months’ imprisonment – NPP of 1 year and 3 months
fixed
|
|
DPP v Giannoukas
|
Court of Appeal
|
7/10/2011
|
2 years and 6 months’ imprisonment wholly suspended
|
|
Post-W12
|
County Court
|
2011
|
3 years’ imprisonment – NPP of 20 months fixed
|
|
Post-W13
|
County Court
|
2012
|
3 years’ imprisonment – NPP of 2 years fixed
|
|
Post-W14
|
County Court
|
2012
|
2 years and 8 months’ imprisonment (part of a TES with NPP
fixed)
|
|
Post-W15
|
County Court
|
2012
|
22 months’ detention in a youth justice centre
|
|
Post-W16
|
County Court
|
2012
|
3 years and 3 months’ imprisonment – NPP of 2 years fixed
|
|
Post-W17
|
County Court
|
2013
|
2 years and 10 months’ imprisonment (part of a TES with NPP
fixed)
|
|
Post-W18
|
County Court
|
2014
|
18-month community correction order with 150 hours unpaid community work,
alcohol treatment condition, and mental health assessment
condition
|
|
Post-W19
|
County Court
|
2014
|
10 months’ imprisonment and 12-month community correction order (part
of a TES with NPP fixed)
|
|
Post-W20
|
County Court
|
2014
|
2 years’ imprisonment (part of a TES with NPP fixed)
|
Confrontational aggravated burglary
The Council’s 2011 report entitled Aggravated Burglary: Current Sentencing Practices developed a typology of categories of aggravated burglary offending, in light of the broad spectrum of offending behaviour that is possible under this offence.
The category of ‘confrontational’ aggravated burglary was assigned if the analysis of sentencing remarks garnered a positive response to the question: ‘Did the offender enter the premises in the context of a dispute with or grievance against someone in the premises?’
The report found that confrontational aggravated burglary accounted for over half (57.3%) of the aggravated burglary cases in the period examined.[1058]
For this report, the Council was unable to code aggravated burglary cases into the typology described in the Council’s 2011 aggravated burglary report. Given that the proportion of confrontational aggravated burglary cases is greater than half, however, it is to be expected that any change in the sentencing practices for that category would be reflected in a change to sentencing practices for that offence overall.
Accordingly, the Council examined overall data on the sentencing practices for aggravated burglary before and after the decision in Hogarth v The Queen (Hogarth).[1059]
This analysis necessarily assumes that the nature of the aggravated burglary offences, in terms of the level of objective seriousness of offending, and matters personal to the offenders, are relatively consistent between the two periods. Further, it assumes that the proportion of cases involving confrontational aggravated burglary offences remains consistent at greater than half, or increases, so that any observable differences in the median may be attributable to a change in the current sentencing practices for that category of the offence.
Sentencing practices pre- and post-Hogarth
Figure A85 shows the 6-month cumulative median custodial sentence lengths for the offence of aggravated burglary, for approximately five years before the decision in Hogarth v The Queen (on 18 December 2012), and for two and a half years after that decision, including the most recently available data to 30 June 2015.
Figure A85: Median custodial sentence lengths for aggravated burglary charges, by six-month intervals, sentenced before and after 18 December 2012, higher courts, January 2008 to June 2015
|
Sentence period
|
Median custodial sentence length (years)
|
|---|---|
|
Jan to Jun 2008
|
1
|
|
Jul to Dec 2008
|
1.5
|
|
Jan to Jun 2009
|
2
|
|
Jul to Dec 2009
|
2
|
|
Jan to Jun 2010
|
2
|
|
Jul to Dec 2010
|
2
|
|
Jan to Jun 2011
|
2
|
|
Jul to Dec 2011
|
2
|
|
Jan to Jun 2012
|
2
|
|
Jul to Dec 2012
|
2 (sentenced prior to/on 18 December 2012)
2.13 (sentenced after 18 December 2012) |
|
Jan to Jun 2013
|
2.29
|
|
Jul to Dec 2013
|
2.5
|
|
Jan to Jun 2014
|
2.5
|
|
Jul to Dec 2014
|
2.5
|
This analysis shows that the six-month median custodial sentence length for aggravated burglary increased from a consistent 2 years pre-Hogarth, to 2 years and 6 months post-Hogarth. This represents a 25% increase in the median custodial sentence.
In both periods, imprisonment (including aggregate and mixed sentences) was the most commonly imposed sentence for charges. Just over 65% of charges received a custodial sentence (including imprisonment) before Hogarth compared with just over 73% after the decision.
Table A56 shows the distribution of sentence types for charges of aggravated burglary, ordered by the most common sentence type after the decision in Hogarth on 18 December 2012.
Table A56: Percentage of charges of aggravated burglary, by sentence type imposed, before and after 18 December 2012, 2008 to 2014–15
|
Sentence type
|
Prior to/on 18 December 2012
|
After 18 December 2012
|
|---|---|---|
|
Imprisonment
|
54%
|
68%
|
|
Community order
|
11%
|
24%
|
|
Youth centre/supervision
|
4%
|
4%
|
|
Partially suspended sentence
|
6%
|
1%
|
|
Other
|
1%
|
1%
|
|
Wholly suspended sentence
|
23%
|
1%
|
|
Fine
|
<1%
|
<1%
|
|
Intensive correction order
|
1%
|
0%
|
References
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Sentencing Advisory Council, Breaching Intervention Orders: Report (Sentencing Advisory Council, 2008).
Sentencing Advisory Council, Calculating the Baseline Offence Median: Report (Sentencing Advisory Council, 2014).
Sentencing Advisory Council, Community Attitudes to Offence Seriousness (Sentencing Advisory Council, 2012).
Sentencing Advisory Council, Driving While Disqualified or Suspended: Report (Sentencing Advisory Council, 2009).
Sentencing Advisory Council, Guiding Principles for Sentencing Contraventions of Family Violence Intervention Orders (Sentencing Advisory Council, 2009).
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Case law
Adamson v The Queen [2015] VSCA 194; (2015) 301 FLR 385
Anderson v The Queen (2013) 230 A Crim R 38
Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Content of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305
Ashdown v The Queen 
[2011] VSCA 408 
; (2011) 37 VR 341
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Boulton v The Queen [2014] VSCA 342 (22 December 2014)
Buckley v The Queen [2006] HCA 7; (2006) 224 ALR 416
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Byrnes v The Queen [2005] VSCA 63 (9 March 2005)
Carlton v The Queen [2008] NSWCCA 244; (2008) 189 A Crim R 332
Carolan v The Queen [2015] VSCA 167 (26 June 2015)
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361
Curtis v The Queen [2011] VSCA 102 (15 April 2011)
Davy v The Queen [2011] VSCA 98; (2011) 207 A Crim R 266
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions (Vic) v Oates [2007] VSCA 59; (2007) 47 MVR 483
Director of Public Prosecutions v Aydin and Kirsch [2005] VSCA 86 (3 May 2005)
Director of Public Prosecutions v Barnes and Barnes [2015] VSCA 293 (12 November 2015)
Director of Public Prosecutions v BDJ [2009] VSCA 298 (1 December 2009)
Director of Public Prosecutions v CJA [2013] VSCA 18 (15 February 2013)
Director of Public Prosecutions v CPD [2009] VSCA 114; (2009) 22 VR 533
Director of Public Prosecutions v Daing [2016] VSCA 58 (31 March 2016)
Director of Public Prosecutions v Dalgliesh (A Pseudonym) S APCR 2015 0190
Director of Public Prosecutions v DDJ [2009] VSCA 115; (2009) 22 VR 444
Director of Public Prosecutions v DJ [2011] VSCA 250; (2011) 211 A Crim R 367
Director of Public Prosecutions v El Hajje [2009] VSCA 160 (26 June 2009)
Director of Public Prosecutions v Husar [2011] VSCA 70 (16 March 2011)
Director of Public Prosecutions v Maynard [2009] VSCA 129 (11 June 2009)
Director of Public Prosecutions v Meyers [2014] VSCA 314; (2014) 44 VR 486
Director of Public Prosecutions v Nasralla [1967] 2 AC 238
Director of Public Prosecutions v OJA [2007] VSCA 129; (2007) 172 A Crim R 181
Director of Public Prosecutions v Riddle [2002] VSCA 153 (11 September 2002)
Director of Public Prosecutions v Scott [2004] VSC 129 (20 April 2004)
Director of Public Prosecutions v SJK [2002] VSCA 131 (26 August 2002)
Director of Public Prosecutions v Terrick [2009] VSCA 220; (2009) 24 VR 457
Director of Public Prosecutions v Walters (A Pseudonym) [2015] VSCA 303 (17 November 2015)
Director of Public Prosecutions v Werry [2012] VSCA 208; (2012) 37 VR 524
Dolan v The Queen [2010] NSWCCA 10 (11 February 2010)
ED v The Queen (2011) 216 A Crim R 404
Everett and Phillips v The Queen [1994] HCA 49; (1994) 181 CLR 295
Frahm v The Queen [2009] NSWCCA 249 (24 September 2009)
Franklin v The Queen [2013] NSWCCA 122 (24 May 2013)
Gall v United States, 552 US 38 (2007)
Gorladenchearau v The Queen [2011] VSCA 432; (2011) 34 VR 149
Griffiths v The Queen (1977) 137 CLR 293
Grozdanov v R [2012] VSCA 94; (2012) 34 VR 426
Hansford v His Honour Judge Neesham [1995] VICSC 58; [1995] 2 VR 233
Harris v The Queen [1954] HCA 51; (1954) 90 CLR 652
Harrison v The Queen [2015] VSCA 349 (16 December 2015)
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
Hili v The Queen [2010] HCA 45; [2010] 242 CLR 520
Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658
House v The King (1936) 55 CLR 499
Hudson v The Queen [2010] VSCA 332; (2010) 30 VR 610
Jones v The Queen [1998] WASCA 123 (8 May 1998)
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51
Kane v The Queen [2010] VSCA 213 (23 August 2010)
Kilic v The Queen [2015] VSCA 331 (8 December 2015)
Kingswell v The Queen (1985) 159 CLR 264
Kotzmann v Adult Parole Board of Victoria (2008) 29 VAR 391
Kumar v The Queen [2013] VSCA 191 (17 July 2013)
Le v The Queen [2010] VSCA 199 (20 July 2010)
Leeder v The Queen [2010] VSCA 98 (23 April 2010)
Legge v The Queen [2007] NSWCCA 244 (27 July 2007)
Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381
Markarian v The Queen (2005) 228 CLR 357
Miller v The Queen [2012] VSCA 265 (31 October 2012)
Money v The Queen [2007] NSWCCA 317; (2007) 49 MVR 159
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nam Son Nguyen v The Queen S APCR 2015 0199
Nash v The Queen [2013] VSCA 172; (2013) 40 VR 134
Nguyen v The Queen (2010) 208 A Crim R 464
Nguyen v The Queen [2010] VSCA 244 (16 September 2010)
Nguyen v The Queen [2010] VSCA 284 (27 October 2010)
Pasznyk v The Queen [2014] VSCA 87; (2014) 43 VR 169
Police v Bond [2014] QMC 29 (23 October 2014)
Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391
R v AB [2006] VSC 96 (10 March 2006)
R v Alioglu [2013] VSC 179 (24 April 2013)
R v Aramah (1982) 4 Cr App R (S) 407
R v Arcand, 2010 ABCA 363
R v Beary [2004] VSCA 229; (2004) 11 VR 151
R v Bellerby [2009] VSCA 59 (28 April 2009)
R v Berg [2004] NSWCCA 300; (2004) 41 MVR 399
R v Court [1989] AC 28
R v D [1997] SASC 6350; (1997) 69 SASR 413
R v Duncan [2007] VSCA 137; (2007) 172 A Crim R 111
R v Errington [2005] NSWCCA 348; (2005) 157 A Crim R 553
R v GP (1997) 18 WAR 196
R v Grossi (2010) 23 VR 500
R v Harris [1961] VicRp 36; [1961] VR 236
R v Henry (1999) 46 NSWLR 346
R v Hillsley [1992] FCA 39; (1992) 105 ALR 560
R v Howes [2000] VSCA 159; (2000) 2 VR 141
R v Ireland (1987) 49 NTR 10
R v IRT [2015] VSC 372 (30 July 2015)
R v Johansen (No 2) [1917] ArgusLawRp 113; [1917] VLR 677
R v Johnston [2008] VSCA 133; (2008) 186 A Crim R 345
R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209
R v Kerr (Unreported, Supreme Court of Western Australia Court of Criminal Appeal, Kennedy, Franklin, and Walsh JJ, 15 August 1997)
R v King (1988) 48 SASR 555
R v KMW [2002] VSC 93 (15 March 2002)
R v Koloamatangi [2011] NSWCCA 288 (20 December 2011)
R v Krasnov [1995] VSC 198 (21 September 1995)
R v LCC [2006] VSCA 33 (16 February 2006)
R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677
R v Major; ex parte Attorney-General (Qld) [2011] 1 Qd R 465
R v Mallinder (1986) 23 A Crim R 179
R v Marien [2011] SASCFC 116 (26 October 2011)
R v Mills [1998] 4 VR 235
R v Moffatt [1998] 2 VR 229
R v Morgan and Morgan (1980) 7 A Crim R 146
R v Murrell [2012] NSWCCA 90 (9 May 2012)
R v Nafi (Unreported, Supreme Court of the Northern Territory, Kelly J, 19 May 2011)
R v Ngui [2000] VSCA 78; (2000) 1 VR 579
R v Payne [2004] SASR 49
R v Pham [2015] HCA 39; (2015) 90 ALJR 13
R v Place [2002] SASC 101; (2002) 81 SASR 395
R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327
R v Pratt [2003] VSCA 186 (31 October 2003)
R v RL [2009] VSCA 95 (19 May 2009)
R v Rogerson [1992] HCA 25; (1992) 174 CLR 268
R v Roussety [2008] VSCA 259; (2008) 24 VR 253
R v Slattery (1996) 90 A Crim R 519
R v Taylor and O’Meally [1958] VicRp 46; [1958] VR 285
R v Thomson (2000) 49 NSWLR 383
R v Tognini [2000] WASCA 31; (2000) 22 WAR 291
R v Tran [2009] VSCA 252 (12 October 2009)
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
R v Wakime [1997] 1 VR 242
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252
R v Wong [1999] NSWCCA 420; (1999) 48 NSWLR 340
R v Koumis [2008] VSCA 84; (2008) 18 VR 434
Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196
Reid (A Pseudonym) v The Queen [2014] VSCA 145; (2014) 42 VR 295
Ross v The Queen [2012] NSWCCA 161 (4 July 2012)
Sabet v The Queen [2011] VSCA 124 (5 May 2011)
Sherna v The Queen [2011] VSCA 242; (2011) 32 VR 668
SJ v The Queen [2012] VSCA 237 (28 September 2012)
SKA v The Queen [2009] NSWCCA 186 (14 July 2009)
Skinner v The King (1913) 16 CLR 336
Spiteri v The Queen [2011] VSCA 33; (2011) 206 A Crim R 528
Stewart v The Queen [2012] NSWCCA 183 (29 August 2012)
Subramaniam v The Queen [2013] NSWCCA 159 (3 July 2013)
Trajkovski v The Queen [2011] VSCA 170; (2011) 32 VR 587
United States v Booker[2005] USSC 593; , 543 U.S. 220 (2005)
Whittaker v The King [1928] HCA 28; (1928) 41 CLR 230
Williams v The Queen [2012] NSWCCA 172 (16 August 2012)
Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Yates v The State of Western Australia [2008] WASCA 144 (10 July 2008)
Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460
Legislation and Bills
Victoria
Charter of Human Rights and Responsibilities Act 2006 (Vic)
Children, Youth and Families Act 2005 (Vic)
Crimes Act 1958 (Vic)
Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic)
Crimes (Amendment) Act 2000 (Vic)
Crimes Amendment (Gross Violence Offences) Act 2013 (Vic)
Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic)
Crimes Legislation Amendment Act 2010 (Vic)
Crimes Legislation Amendment Bill 2016 (Vic)
Criminal Procedure Act 2009 (Vic)
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Drugs, Poisons and Controlled Substances Amendment Act 2016 (Vic)
Judicial Proceedings Reports Act 1958 (Vic)
Jury Directions Act 2015 (Vic)
Road Safety Act 1986 (Vic)
Sentencing Act 1991 (Vic)
Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013 (Vic)
Sentencing (Amendment) Act 2003 (Vic)
Sentencing Amendment Act 2010 (Vic)
Sentencing Amendment (Baseline Sentences) Act 2014 (Vic)
Sentencing Amendment (Baseline Sentences) Bill 2014 (Vic)
Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Act 2014 (Vic)
Sentencing Amendment (Emergency Workers) Act 2014 (Vic)
Sentencing and Other Acts (Amendment) Act 1997 (Vic)
Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic)
Serious Sex Offenders (Detention and Supervision) Amendment (Community Safety) Bill 2016 (Vic)
New South Wales
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013 (NSW)
Criminal Legislation Amendment Act 2001 (NSW)
Northern Territory
Sentencing Act 1995 (NT)
Queensland
Corrective Services Act 2006 (Qld)
Criminal Code Act 1899 (Qld)
Penalties and Sentences Act 1992 (Qld)
Penalties and Sentences (Sentencing Advisory Council) Amendment Act 2010 (Qld)
South Australia
Criminal Law Consolidation Act 1935 (SA)
Criminal Law (Sentencing) Act 1988 (SA)
Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA)
Tasmania
Sentencing Act 1997 (Tas)
Western Australia
Criminal Code Act Compilation Act 1913 (WA)
Sentencing Act 1995 (WA)
Sentencing Amendment Bill 2000 (WA)
Commonwealth
Crimes Act 1914 (Cth)
Migration Act 1958 (Cth)
International
Penal Law Bill (Amendment No. 92, Structuring Judicial Discretion in Sentencing) 5766-2006 (Israel)
Coroners and Justice Act 2009 (UK)
Criminal Justice and Licensing (Scotland) Act 2010 (UK)
Criminal Procedure (Scotland) Act 1995 (UK)
Quasi-legislative materials
New South Wales, Parliamentary Debates, Legislative Assembly, 28 October 1998 (Gabrielle Harrison, Minister for Sport and Recreation)
New South Wales, Parliamentary Debates, Legislative Assembly, 23 October 2002 (Bob Debus, Attorney-General)
New South Wales, Parliamentary Debates, Legislative Council, 17 October 2007 (John Hatzistergos, Attorney General and Minister for Justice)
South Australia, ‘Statutes Amendment (Sentencing of Sex Offenders) Bill’, Parliamentary Debates, House of Assembly, 11 April 2005 (Michael Atkinson, Attorney-General)
Victoria, Parliamentary Debates, Legislative Assembly, 24 April 1997 (Jan Wade, Attorney-General)
Victoria, Parliamentary Debates, Legislative Assembly, 20 March 2003 (Rob Hulls, Attorney-General)
Victoria, Parliamentary Debates, Legislative Assembly, 3 April 2014 (Robert Clark, Attorney-General)
Victoria, Parliamentary Debates, Legislative Assembly, 21 August 2014 (Robert Clark, Attorney-General)
Victoria, Victoria Government Gazette, No. S 267, 12 August 2014
Victoria, Victoria Government Gazette, No. S 350, 7 October 2014
Published by the Sentencing Advisory Council
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[1]. Director of Public Prosecutions v Walters (A Pseudonym) [2015] VSCA 303 (17 November 2015).
[2]. Director of Public Prosecutions v Walters (A Pseudonym) [2015] VSCA 303 (17 November 2015) [9].
[3]. Director of Public Prosecutions v Walters (A Pseudonym) [2015] VSCA 303 (17 November 2015) [10].
[4]. Victoria, ‘Sentencing Amendment (Baseline Sentences) Bill 2014’, Parliamentary Debates, Legislative Assembly, 3 April 2014, 1275 (Robert Clark, Attorney-General).
[5]. For example: Submission 1 (G. Silbert); Submission 2 (Anonymous); Submission 9 (C. Politi). The Council has examined in detail the issues surrounding the consideration of current sentencing practices at [3.24]–[3.64].
[6]. See [5.96]–[5.118].
[7]. Submission 10 (Liberty Victoria); Submission 11 (Law Institute of Victoria); Submission 12 (Criminal Bar Association of Victoria); Submission 15 (Director of Public Prosecutions).
[8]. Submission 10 (Liberty Victoria).
[9]. Submission 13 (Victoria Legal Aid).
[10]. Submission 14 (Director of Public Prosecutions).
[11]. Sentencing Advisory Council, Sentencing Matters: Predictors of Confidence: Community Views in Victoria (2011).
[12]. Submission 2 (Anonymous); Submission 10 (Liberty Victoria); Submission 11 (Law Institute of Victoria); Submission 12 (Criminal Bar Association of Victoria).
[13]. Submission 12 (Criminal Bar Association of Victoria).
[14]. Submission 13 (Victoria Legal Aid), citing Kate Warner et al., Jury Sentencing Survey: Report to the Criminology Research Council (2010) 79, 95.
[15]. Submission 10 (Liberty Victoria), citing Austin Lovegrove, ‘Public Opinion, Sentencing and Lenience: An Empirical Study Involving Judges Consulting the Community’ (2007) Criminal Law Review 769; Sentencing Advisory Council, More Myths and Misconceptions (2008); Kate Warner et al., Public Judgement on Sentencing: Final Results from the Tasmanian Jury Sentencing Study, Trends and Issues in Crime and Criminal Justice no. 407 (2011).
[16]. Sentencing Advisory Council, Community Attitudes to Offence Seriousness (2012).
[17]. Warner et al. (2010), above n 14, 79.
[18]. Kate Warner et al., ‘Using Jurors to Measure Informed Community Views on Sentencing: Results from the Second Australian Jury Sentencing Study’ (under review for publication).
[19]. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 38(1).
[20]. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 8(2).
[21]. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24(3).
[22]. Sentencing Act 1991 (Vic) s 5(1)(f).
[23]. Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law in Victoria (3rd ed., 2014) 235.
[24]. Sentencing Act 1991 (Vic) s 5(2).
[25]. Freiberg (2014), above n 23, 186.
[26]. Sentencing Act 1991 (Vic) s 5(3).
[27]. Sentencing Act 1991 (Vic) s 5(4).
[28]. Sentencing Act 1991 (Vic) ss 11(1)–(2).
[29]. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 128. See also Sentencing Advisory Council, Sentencing, Parole Revocation and Confiscation Orders: Discussion and Options Paper (2009) 4–7.
[30]. Children, Youth and Families Act 2005 (Vic) s 1.
[31]. See further Peter Power, Research Materials (Children’s Court of Victoria, 2015) <http://www.childrenscourt.vic.gov.au/legal/research-materials/sentencing> at 9 March 2016, [11.1.4].
[32]. To be a ‘child’, an accused must have been aged 10 or above (but under the age of 18) at the time of the offence, and must have been under the age of 19 at the time proceedings were commenced: Children, Youth and Families Act 2005 (Vic) s 3.
[33]. The offences of murder, attempted murder, manslaughter, child homicide, arson causing death, and 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). The Children’s Court can, however, conduct committal proceedings in respect of these excluded offences: s 516(1)(c).
[34]. Children, Youth and Families Act 2005 (Vic) s 356(3)(a).
[35]. Children, Youth and Families Act 2005 (Vic) s 356(3)(b).
[36]. Children, Youth and Families Act 2005 (Vic) ss 362(a)–(d).
[37]. Children, Youth and Families Act 2005 (Vic) s 361.
[38]. Children, Youth and Families Act 2005 (Vic) ss 413(2)–(3).
[39]. Children, Youth and Families Act 2005 (Vic) s 3(1) (definition of ‘child’).
[40]. A ‘young offender’ is a person under the age of 21 years at the time of sentencing: Sentencing Act 1991 (Vic) s 3(1).
[41]. Children, Youth and Families Act 2005 (Vic) s 586
[42]. Sentencing Act 1991 (Vic) s 32(3).
[43]. Sentencing Act 1991 (Vic) ss 11(1)–(2).
[44]. Director of Public Prosecutions v SJK [2002] VSCA 131 (23 August 2002) [50], [60] (Philips CJ, Chernov and Vincent JJA). See further Power (2015), above n 31, [11.1.13].
[45]. R v KMW [2002] VSC 93 (15 March 2002) [57] (Coldrey J).
[46]. Sentencing Act 1991 (Vic) s 32.
[47]. Sentencing Act 1991 (Vic) s 32(1).
[48]. Sentencing Act 1991 (Vic) s 32(2).
[49]. Sentencing Act 1991 (Vic) s 32(3).
[50]. Sentencing Act 1991 (Vic) s 32(4).
[51]. When sentencing children, the Children’s Court must consider all of the factors identified in the Children, Youth and Families Act 2005 (Vic).
[52]. Markarian v The Queen (2005) 228 CLR 357, 371 (Gleeson CJ, Gummow, Hayne, and Callinan JJ).
[53]. Markarian v The Queen (2005) 228 CLR 357, 378 (McHugh J).
[54]. Director of Public Prosecutions v Terrick [2009] VSCA 220; (2009) 24 VR 457, 475 (Maxwell P, Redlich JA, and Robson AJA).
[55]. The Victorian Court of Appeal has described the ‘instinctive synthesis’ approach referred to in Markarian v The Queen (2005) 228 CLR 357 as the ‘sentencing synthesis’: see Nguyen v The Queen [2010] VSCA 284 (27 October 2010) [21] (Ashley JA).
[56]. Markarian v The Queen (2005) 228 CLR 357, 403 (Kirby J).
[57]. Markarian v The Queen (2005) 228 CLR 357.
[58]. Markarian v The Queen (2005) 228 CLR 357, 373–374 (Gleeson CJ, Gummow, Hayne, and Callinan JJ), 398 (Kirby J).
[59]. Markarian v The Queen (2005) 228 CLR 357, 373 (Gleeson CJ, Gummow, Hayne, and Callinan JJ); Kirby J 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.
[60]. Markarian v The Queen (2005) 228 CLR 357, 374–375 (Gleeson CJ, Gummow, Hayne, and Callinan JJ), quoting Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 612 (Gaudron, Gummow, and Hayne JJ).
[61]. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 131 (citations omitted).
[62]. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 132.
[63]. Trajkovski v The Queen [2011] VSCA 170; (2011) 32 VR 587, 598.
[64]. Trajkovski v The Queen [2011] VSCA 170; (2011) 32 VR 587, 597.
[65]. Sentencing Act 1991 (Vic) s 6(a).
[66]. Sentencing Act 1991 (Vic) s 6A.
[67]. Sentencing Act 1991 (Vic) s 6D.
[68]. Sentencing Act 1991 (Vic) s 16(1).
[69]. Sentencing Act 1991 (Vic) ss 6E, 16(1A)(c).
[70]. 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.
[71]. R v Roussety [2008] VSCA 259; (2008) 24 VR 253.
[72]. Sentencing Act 1991 (Vic) ss 6H–6I, sch 1A.
[73]. Sentencing Act 1991 (Vic) s 18A(5).
[74]. Sentencing Act 1991 (Vic) s 18B(1).
[75]. Sentencing Act 1991 (Vic) s 18A(4).
[76]. Sentencing Act 1991 (Vic) s 18A(2).
[77]. 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, ‘12.9.8 – Issues in Formulation of an Indefinite Sentence’, Victorian Sentencing Manual (Judicial College of Victoria, 2015) <http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#16898.htm> at 31 March 2016, [12.9.8.2], [12.9.8.3].
[78]. Sentencing Act 1991 (Vic) ss 18A(3)–(4).
[79]. R v Moffatt [1998] 2 VR 229, 246 (Hayne JA).
[80]. Carolan v The Queen [2015] VSCA 167 (26 June 2015).
[81]. Carolan v The Queen [2015] VSCA 167 (26 June 2015) [97], citing Buckley v The Queen [2006] HCA 7; (2006) 224 ALR 416, 426.
[82]. Carolan v The Queen [2015] VSCA 167 (26 June 2015) [97].
[83]. See Crimes Amendment (Gross Violence Offences) Act 2013 (Vic), which introduced Crimes Act 1958 (Vic) ss 15A–15B.
[84]. See Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Act 2014 (Vic), which introduced Sentencing Act 1991 (Vic) ss 9A–9C.
[85]. Sentencing Act 1991 (Vic) s 10(1).
[86]. Sentencing Act 1991 (Vic) ss 9B(2), 9C(2).
[87]. The Sentencing Amendment (Emergency Workers) Act 2014 (Vic) also introduced a baseline sentence for the murder of a person defined as an ‘emergency worker’ while that person is on duty.
[88]. Supervision orders imposed under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).
[89]. Sentencing Act 1991 (Vic) s 10A(2)(e).
[90]. Further, to date, no offenders have been sentenced under the statutory minimum sentence provisions introduced by the Sentencing Amendment (Emergency Workers) Act 2014 (Vic).
[91]. Criminal Procedure Act 2009 (Vic) sch 1 cl 4A.
[92]. Sarah Krasnostein, ‘Pursuing Consistency: The Effect of Different Reforms on Unjustified Disparity in Individualised Sentencing Frameworks’ (PhD Thesis, Monash University, 2015) 3, citing R v Arcand, 2010 ABCA 363 [7].
[93]. Crimes Act 1958 (Vic) s 3(1).
[94]. Sentencing Act 1991 (Vic) s 109.
[95]. Sentencing Act 1991 (Vic) s 5(2)(a).
[96]. Director of Public Prosecutions v Aydin and Kirsch [2005] VSCA 86 (3 May 2005) [10].
[97]. Director of Public Prosecutions v Aydin and Kirsch [2005] VSCA 86 (3 May 2005) [12].
[98]. Arie Freiberg, Pathways to Justice: Sentencing Review 2002 (2002) 56.
[99]. Markarian v The Queen (2005) 228 CLR 357, 372.
[100]. R v Mallinder (1986) 23 A Crim R 179. See also Freiberg (2014), above n 23, 273.
[101]. Freiberg (2014), above n 23, 274.
[102]. Ashdown v The Queen
[2011] VSCA 408 ; (2011) 37 VR 341.
[103]. Markarian v The
Queen (2005) 228 CLR 357, 372, cited in Ashdown v The Queen [2011] VSCA 408 ; (2011) 37
VR 341.
[104]. R v Ireland (1987) 49 NTR 10; Freiberg (2014), above n 23, 274.
[105]. Markarian v The Queen (2005) 228 CLR 357, 389.
[106]. R v Slattery (1996) 90 A Crim R 519. See also Freiberg (2014), above n 23, 270.
[107]. Freiberg (2014), above n 23, 271.
[108]. Harrison v The Queen [2015] VSCA 349 (16 December 2015) [133].
[109]. R v AB [2006] VSC 96 (10 March 2006).
[110]. R v AB [2006] VSC 96 (10 March 2006) [21].
[111]. R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391, 406 (citations omitted).
[112]. R v Grossi (2010) 23 VR 500, 512.
[113]. R v Beary [2004] VSCA 229; (2004) 11 VR 151, 158–159. See further Freiberg (2014), above n 23, 271.
[114]. Sentencing Advisory Council, Major Driving Offences: Current Sentencing Practices (2015).
[115]. Ibid 47.
[116]. Ibid 57.
[117]. Judicial College of Victoria, ‘8.3.1 – Significance of Current Sentencing Practices’, Victorian Sentencing Manual (Judicial College of Victoria, 2013) <http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#15856.htm> at 31 March 2016.
[118]. Sentencing Act 1991 (Vic) s 1(a).
[119]. Freiberg (2014), above n 23, 436–437 (citations omitted).
[120]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584.
[121]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 591.
[122]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 591.
[123]. James Spigelman, ‘Consistency and Sentencing’ (2008) 82 Australian Law Journal 450, 451.
[124]. R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677, 690.
[125]. New South Wales Sentencing Council, How Best to Promote Consistency in Sentencing in the Local Courts (2004) 11.
[126]. Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.
[127]. Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 535.
[128]. Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 535–538.
[129]. Director of Public Prosecutions v CPD [2009] VSCA 114; (2009) 22 VR 533, 552. See also Davy v The Queen [2011] VSCA 98; (2011) 207 A Crim R 266, 277.
[130]. See Freiberg (2014), above n 23, 452; Arie Freiberg and Sarah Krasnostein, ‘Statistics, Damn Statistics and Sentencing’ (2011) 21(2) Journal of Judicial Administration 73.
[131]. Director of Public Prosecutions v Maynard [2009] VSCA 129 (11 June 2009) [35].
[132]. Anderson v The Queen (2013) 230 A Crim R 38, 46 (emphasis added).
[133]. Director of Public Prosecutions v OJA [2007] VSCA 129; (2007) 172 A Crim R 181, 195–196.
[134]. Ashdown v The
Queen [2011] VSCA 408 ; (2011) 37 VR 341, 345–346.
[135]. Markarian v The Queen (2005) 228 CLR 357, 372.
[136]. Kilic v The Queen [2015] VSCA 331 (8 December 2015) [48].
[137]. R v AB (No. 2) [2008] VSCA 39; (2008) 18 VR 391, 405.
[138]. Director of Public Prosecutions v CPD [2009] VSCA 114; (2009) 22 VR 533, 536.
[139]. Sentencing Guidance Stakeholder Discussion Forum (1 March 2016).
[140]. Sentencing Guidance Stakeholder Discussion Forum (1 March 2016).
[141]. Submission 1 (G. Silbert); Submission 2 (Anonymous).
[142]. Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.
[143]. Sentencing Guidance Stakeholder Discussion Forum (1 March 2016).
[144]. Submission 2 (Anonymous).
[145]. Submission 2 (Anonymous).
[146]. Submission 1 (G. Silbert).
[147]. Analysis in Submission 2 (Anonymous) suggested that the number of judgments containing the term ‘current sentencing practices’ has increased from two published judgments in 1998 to 34 in 2015. These figures are indicative only, as AustLII does not contain judgments for the first half of 1998, and the overall number of sentence appeals for each year has not been calculated.
[148]. Submission 14 (Director of Public Prosecutions).
[149]. Submission 14 (Director of Public Prosecutions).
[150]. Submission 14 (Director of Public Prosecutions).
[151]. Submission 14 (Director of Public Prosecutions).
[152]. Submission 14 (Director of Public Prosecutions).
[153]. Submission 11 (Law Institute of Victoria).
[154]. Submission 13 (Victoria Legal Aid).
[155]. Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.
[156]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584.
[157]. R v Pham [2015] HCA 39; (2015) 90 ALJR 13, 19 (French CJ, Keane, and Nettle JJ) (citations omitted).
[158]. Submission 14 (Director of Public Prosecutions).
[159]. Submission 14 (Director of Public Prosecutions).
[160]. See [6.138]–[6.162].
[161]. Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658.
[162]. Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658.
[163]. Harrison v The Queen [2015] VSCA 349 (16 December 2015).
[164]. See [3.75].
[165]. Criminal Procedure Act 2009 (Vic) ss 278, 280.
[166]. Criminal Procedure Act 2009 (Vic) s 274.
[167]. Arie Freiberg and Peter Sallmann, ‘Courts of Appeal and Sentencing: Principles, Policy and Politics’ (2008) 26(1) Law in Context 43, 46.
[168]. Ibid 53.
[169]. R v Mills [1998] 4 VR 235.
[170]. R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
[171]. R v AB (No. 2) [2008] VSCA 39; (2008) 18 VR 391.
[172]. Submission 2 (Anonymous).
[173]. Submission 10 (Liberty Victoria).
[174]. Director of Public Prosecutions v Meyers [2014] VSCA 314; (2014) 44 VR 486, 497–498 (Maxwell P, Redlich, and Osborn JJA), cited in Submission 10 (Liberty Victoria).
[175]. Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658, 669–670.
[176]. Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658, 674.
[177]. Harrison v The Queen [2015] VSCA 349 (16 December 2015) [140] (citations omitted).
[178]. Harrison v The Queen [2015] VSCA 349 (16 December 2015) [89].
[179]. Submission 11 (Law Institute of Victoria); Submission 13 (Victoria Legal Aid).
[180]. Submission 14 (Director of Public Prosecutions).
[181]. Sentencing Guidance Stakeholder Discussion Forum (1 March 2016).
[182]. Sentencing Amendment Act 2010 (Vic).
[183]. Sentencing Act 1991 (Vic) s 6AB(1).
[184]. Sentencing Act 1991 (Vic) s 6AB(3).
[185]. Sentencing Act 1991 (Vic) ss 6AE(a)–(b).
[186]. Sentencing Act 1991 (Vic) s 6AC; this provision also provides that a guideline may set out ‘guidelines for sentencing offenders for baseline offences’: see [4.14]–[4.27].
[187]. Sentencing Act 1991 (Vic) s 6AD(a).
[188]. Sentencing Act 1991 (Vic) s 6AD(b)(i).
[189]. Sentencing Act 1991 (Vic) s 6AD(b)(ii).
[190]. Sentencing Act 1991 (Vic) pt 2.
[191]. Sentencing Act 1991 (Vic) ss 6AG(a)–(b).
[192]. Boulton v The Queen [2014] VSCA 342 (22 December 2014).
[193]. Office of Public Prosecutions, ‘Director of Public Prosecutions Calls for Increased Sentences’, Media Release (31 August 2010).
[194]. Victorian Liberal Nationals Coalition, ‘Coalition to Set Minimum Sentence Standards for Serious Crimes’, Media Release (23 November 2010) <http://www.robertclark.com.au/feature/ideas-and-solutions/coalition-to-set-minimum-sentence-standards-for-serious-crime/> at 7 April 2016, 1.
[195]. Director of Public Prosecutions, Director’s Policy Regarding Challenging Current Sentencing Practices: Policy 32 (Office of Public Prosecutions Victoria, 2011) <http://www.opp.vic.gov.au/resources/8/4/84137e00404a14a4ac1afff5f2791d4a/32_challenging_current_sentencing_practices.pdf> at 16 February 2012.
[196]. Director of Public Prosecutions v CPD [2009] VSCA 114; (2009) 22 VR 533.
[197]. Director of Public Prosecutions v CPD [2009] VSCA 114; (2009) 22 VR 533, 536 (Maxwell P, Redlich JA, and Robson AJA).
[198]. Leeder v The Queen [2010] VSCA 98 (23 April 2010) [37] (Maxwell P).
[199]. Nguyen v The Queen (2010) 208 A Crim R 464, 473 (Maxwell P).
[200]. Kane v The Queen [2010] VSCA 213 (23 August 2010) [29]–[30] (Harper JA).
[201]. Director of Public Prosecutions v DDJ [2009] VSCA 115; (2009) 22 VR 444, 460–461 (Maxwell P, Vincent, and Neave JJA).
[202]. Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658, 663 (Maxwell P and Redlich JA).
[203]. Sentencing Advisory Council, Baseline Sentencing: Report (2012) xi.
[204]. Sentencing Advisory Council (2012), above n 203.
[205]. This scheme was introduced by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), which amended the Crimes (Sentencing Procedure) Act 1999 (NSW) (now further amended).
[206]. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120.
[207]. Victoria, Victoria Government Gazette, No. S 267, 12 August 2014, 1.
[208]. Sentencing Amendment (Baseline Sentences) Act 2014 (Vic) s 1.
[209]. Victoria, ‘Sentencing Amendment (Baseline Sentences) Bill 2014’, Parliamentary Debates, Legislative Assembly, 3 April 2014, 1275 (Robert Clark, Attorney-General).
[210]. Victoria, ‘Sentencing Amendment (Baseline Sentences) Bill 2014’, Parliamentary Debates, Legislative Assembly, 3 April 2014, 1276 (Robert Clark, Attorney-General).
[211]. Victoria, ‘Sentencing Amendment (Baseline Sentences) Bill 2014’, Parliamentary Debates, Legislative Assembly, 3 April 2014, 1276 (Robert Clark, Attorney-General).
[212]. Explanatory Memorandum, Sentencing Amendment (Baseline Sentences) Bill 2014 (Vic) 2.
[213]. Victoria, Victoria Government Gazette, No. S 350, 7 October 2014, 1.
[214]. This figure includes murder of an emergency worker while on duty.
[215]. Sentencing Advisory Council, Calculating the Baseline Offence Median: Report (2014).
[216]. Sentencing Act 1991 (Vic) s 5A(1)(b).
[217]. Sentencing Act 1991 (Vic) s 11A.
[218]. R v IRT [2015] VSC 372 (30 July 2015).
[219]. Contrary to section 47(1) of the Crimes Act 1958 (Vic).
[220]. Contrary to section 44(1) of the Crimes Act 1958 (Vic).
[221]. R v IRT [2015] VSC 372 (30 July 2015) [141].
[222]. Office of Public Prosecutions, ‘DPP Appeals Baseline Sentence’, Media Release (28 August 2015) <http://www.opp.vic.gov.au/News-and-Media/Media-releases/DPP-appeals-baseline-sentence> at 6 April 2016.
[223]. Director of Public Prosecutions v Walters (A Pseudonym) [2015] VSCA 303 (17 November 2015) [9] (Maxwell P, Redlich, Tate, and Priest JJA).
[224]. Director of Public Prosecutions v Walters (A Pseudonym) [2015] VSCA 303 (17 November 2015) [8] (Maxwell P, Redlich, Tate, and Priest JJA).
[225]. Submission 1 (G. Silbert); Submission 2 (Anonymous); Submission 4 (Youthlaw); Submission 10 (Liberty Victoria); Submission 11 (Law Institute of Victoria); Submission 12 (Criminal Bar Association of Victoria); Submission 13 (Victoria Legal Aid); Submission 14 (Director of Public Prosecutions).
[226]. Submission 2 (Anonymous).
[227]. Submission 12 (Criminal Bar Association of Victoria).
[228]. Submission 10 (Liberty Victoria).
[229]. Submission 11 (Law Institute of Victoria).
[230]. Submission 14 (Director of Public Prosecutions).
[231]. Submission 13 (Victoria Legal Aid).
[232]. Director of Public Prosecutions v Walters (A Pseudonym) [2015] VSCA 303 (17 November 2015).
[233]. This comprises the following offences: sexual penetration with a child under 12, persistent sexual abuse of a child under 16, rape, incest with child/step-child, incest with child/step-child (under 18) of de facto, indecent act with a child under 16, murder, intentionally causing serious injury, recklessly causing serious injury, negligently causing serious injury, culpable driving causing death, aggravated burglary, trafficking in a large commercial quantity of a drug of dependence, trafficking in a commercial quantity of a drug of dependence, cultivating a large commercial quantity of a narcotic plant, and cultivating a commercial quantity of a narcotic plant.
[234]. Submission 10 (Liberty Victoria); Submission 11 (Law Institute of Victoria); Submission 13 (Victoria Legal Aid).
[235]. Submission 2 (Anonymous); Submission 3 (C. Murphy); Submission 5 (Whitehorse City Council); Submission 7 (Victorian Women’s Trust); Submission 9 (C. Politi); Submission 12 (Criminal Bar Association of Victoria) (the Criminal Bar Association of Victoria did not raise any specific problem areas but did specify the offences that a legislated guidepost should be limited to, if one were to be introduced: murder, incest, sexual penetration with a child under 12, and persistent sexual abuse of a child under 16); Submission 15 (Victims of Crime Commissioner); Submission 16 (Local Government Professionals Inc.).
[236]. Submission 2 (Anonymous); Submission 7 (Victorian Women’s Trust); Submission 12 (Victoria Legal Aid); Submission 13 (Director of Public Prosecutions); Submission 13 (Director of Public Prosecutions) (the Director referred to ‘mid-level’ rape as a possible offence of concern but considered that more analysis was required); Submission 15 (Victims of Crime Commissioner).
[237]. Submission 2 (Anonymous); Submission 9 (C. Politi); Submission 13 (Director of Public Prosecutions) (the Director referred to ‘high range’ intentionally causing serious injury as a possible offence of concern but considered that more analysis was required); Submission 15 (Victims of Crime Commissioner).
[238]. Submission 13 (Director of Public Prosecutions).
[239]. Submission 7 (Victorian Women’s Trust).
[240]. Submission 9 (C. Politi).
[241]. Submission 3 (C. Murphy) (these were offences present in a fatal driving case in which Ms Murphy’s father was killed after being hit by a car and the offenders (a husband and wife) fled the scene of the accident).
[242]. Submission 14 (Director of Public Prosecutions); Submission 15 (Victims of Crime Commissioner).
[243]. Submission 14 (Director of Public Prosecutions).
[244]. Meeting with a number of Crown Prosecutors (11 February 2016).
[245]. Meeting with a number of Crown Prosecutors (11 February 2016).
[246]. Submission 15 (Victims of Crime Commissioner) (other offences included murder, rape, armed robbery, and sexual offences against children).
[247]. Submission 15 (Victims of Crime Commissioner).
[248]. Submission 6 (Anonymous).
[249]. Submission 5 (Whitehorse City Council); Submission 16 (Local Government Professionals Inc.).
[250]. Submission 13 (Victoria Legal Aid).
[251]. Offences are listed within each category in order of statutory reference.
[252]. Ashdown v The
Queen [2011] VSCA 408 ; (2011) 37 VR 341, 403.
[253]. New South Wales Sentencing Council, Standard Non-Parole Periods: Final Report (2013) 9–19.
[254]. The New South Wales Sentencing Council qualified this principle to the effect that ‘the fact that an indictable offence can be tried summarily should not of itself determine whether it should or should not be included in the [standard non-parole period] scheme’: New South Wales Sentencing Council, above n 253, 12.
[255]. Ibid 9–10.
[256]. Ibid 9, Recommendation 2.1.
[257]. For the purposes of this report, the following sentences were categorised as ‘custodial sentences’: imprisonment (including partially suspended sentences), intensive correction orders, residential treatment orders, youth justice centre orders and youth training centre orders, and any mixed sentences including these sentence types. Imprisonment sentences imposed for charges of an offence are considered suspended if the total effective sentence is either wholly or partially suspended. Partially suspended sentences for charges were included in the analysis according to the length of sentence imposed on the charge, without any adjustment for the case level suspended period. Wholly suspended sentences were not considered to be custodial sentences. Aggregate forms of custodial sentences were excluded from sentence length analysis as the sentence length is imposed with regard to multiple charges in a case.
[258]. Sentencing Advisory Council, Sentencing of Offenders: Sexual Penetration with a Child under 12 (forthcoming 2016).
[259]. Submission 7 (Victorian Women’s Trust). See also Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 364; Franklin v The Queen [2013] NSWCCA 122 (24 May 2013) [21]; Arie Freiberg, Hugh Donnelly, and Karen Gelb, Sentencing for Child Sexual Abuse in Institutional Contexts (2015) (Royal Commission into Institutional Responses to Child Sexual Abuse) 69–70.
[260]. Indictable offences must be determined and sentenced in a higher court (either the County Court or the Supreme Court), in accordance with Part 5 of the Criminal Procedure Act 2009 (Vic). Summary offences are determined and sentenced in the Magistrates’ Court in accordance with Part 3 of the Criminal Procedure Act 2009 (Vic). Some indictable offences are triable summarily. This means that the offences may be heard and determined in the Magistrates’ Court if the court considers it appropriate and the accused consents to a summary hearing: Criminal Procedure Act 2009 (Vic) ss 28(1)(b), 29.
[261]. When an offence is prosecuted and sentenced in the Magistrates’ Court, it is subject to a jurisdictional limit on the sentence that may be imposed, being 2 years’ imprisonment for a single charge and 5 years’ imprisonment as a total effective sentence for multiple charges: Sentencing Act 1991 (Vic) ss 113A–113B.
[262]. New South Wales Sentencing Council (2013), above n 253, 9, 11.
[263]. Ibid 12.
[264]. See Chapter 6 at [6.119] for a discussion of how guidance through an enhanced guideline judgment scheme can apply to offences determined summarily. See, for example, the comprehensive guidelines provided for Magistrates’ Courts by the Sentencing Council for England and Wales, Magistrates’ Court Sentencing Guidelines (Sentencing Council for England and Wales, 2016) <https://www.sentencingcouncil.org.uk/publications/item/magistrates-court-sentencing-guidelines/> at 31 March 2016.
[265]. Sentencing Advisory Council, Guiding Principles for Sentencing Contraventions of Family Violence Intervention Orders (2009).
[266]. The Council has recommended excluding offences determined summarily from the standard sentence scheme: Chapter 7, Recommendation 8.
[267]. New South Wales Sentencing Council (2013), above n 253, 16.
[268]. Ibid 15.
[269]. For the factors underlying the low reporting rate, see VicHealth, Two Steps Forward, One Step Back: Community Attitudes to Violence Against Women (2006) 60–61.
[270]. New South Wales Sentencing Council (2013), above n 253, 16.
[271]. Sentencing Advisory Council, Recidivism of Sex Offenders: Research Paper (2007) 3–7.
[272]. The Council’s limited analysis of sexual offence cases identified a number of cases that involved victims aged under 12 or under 16 where the offender was charged with the offence of rape, rather than an offence of sexual penetration with a child. Further, an offender may be charged with sexual penetration with a child aged 12–16 instead of incest with child/step-child (under 18) of de facto, where it may be difficult to prove the existence of a de facto relationship at the time of the offending.
[273]. New South Wales Sentencing Council (2013), above n 253, 13.
[274]. An exception to this are the statutory minimum non-parole periods that apply to certain offences against emergency services workers in the performance of their duties: Sentencing Act 1991 (Vic) s 10AA.
[275]. New South Wales Sentencing Council (2013), above n 253, 12.
[276]. Ibid 16.
[277]. For example, Submission 13 (Victoria Legal Aid); Submission 14 (Director of Public Prosecutions).
[278]. Submission 13 (Victoria Legal Aid) (citations omitted; emphasis added).
[279]. Submission 13 (Victoria Legal Aid) (citations omitted).
[280]. Warner et al. (2011), above n 15.
[281]. Warner et al. (under review for publication), above n 18.
[282]. Sentencing Advisory Council (2012), above n 16.
[283]. The sample was not random, but it was representative of the Victorian population on many demographic variables, including age, gender, and residential location.
[284]. The other quantitative method was ‘paired comparisons’, in which participants were asked to compare pairs of offences and nominate the offence that they thought was the more serious in each pair. For more detail on the relevant literature and the Council’s methodology, see Sentencing Advisory Council (2012), above n 16, 13, 20–21.
[285]. Coded offence ranking is a direct scaling method as it involves the comparison of many offences directly compared at one time. It requires participants to quantitatively rank or rate how serious each offence is compared with all other offences using a scale of seriousness with particular levels (for example, 1 to 0) or categories (for example, ‘very serious’ to ‘not very serious’).
[286]. The highest degree of consensus was recorded for the five offences ranked at 9 and 10 (intentional murder, sexual penetration with a child under 12, rape, reckless murder, and intentionally causing serious injury): Sentencing Advisory Council (2012), above n 16, 40–41.
[287]. The average correlation (extent of agreement of individual rankings with the sample average) was 0.89: Sentencing Advisory Council (2012), above n 16, 40.
[288]. Other sexual offences were also ranked high in the scale of offence seriousness.
[289]. Sentencing Advisory Council (2012), above n 16, 70.
[290]. New South Wales Sentencing Council (2013), above n 253, 14.
[291]. Ashdown v The
Queen [2011] VSCA 408 ; (2011) 37 VR 341.
[292]. Ashdown v The
Queen [2011] VSCA 408 ; (2011) 37 VR 341, 403.
[293]. New South Wales Sentencing Council (2013), above n 253, 14, citing New South Wales, ‘Crimes (Sentencing Procedure) Amendment Bill 2007’, Parliamentary Debates, Legislative Council, 17 October 2007, 2668 (John Hatzistergos, Attorney General and Minister for Justice).
[294]. Freiberg (2002), above n 98, 56.
[295]. Submission 15 (Victims of Crime Commissioner).
[296]. Submission 2 (Anonymous); Submission 3 (C. Murphy); Submission 5 (Whitehorse City Council); Submission 7 (Victorian Women’s Trust); Submission 9 (C. Politi); Submission 10 (Liberty Victoria); Submission 11 (Law Institute of Victoria); Submission 12 (Criminal Bar Association of Victoria); Submission 13 (Victoria Legal Aid); Submission 15 (Victims of Crime Commissioner); Submission 16 (Local Government Professionals Inc.).
[297]. Submission 15 (Victims of Crime Commissioner).
[298]. The Council examined sentences for charges of the 23 possible problem offences imposed in the higher courts (and in the summary jurisdiction) over a five-year period, from 1 July 2010 to 30 June 2015.
[299]. Some participants at the Council’s stakeholder discussion forum questioned whether maximum penalties were an indicator of parliament’s view of seriousness, or genuinely reflective of community views. Stakeholders considered that other factors (separate from offence seriousness) might have influenced parliament to increase the maximum penalty for an offence (for example, as a reaction to public ‘outcry’ or media commentary on a particular case): Sentencing Guidance Stakeholder Discussion Forum (1 March 2016).
[300]. Submission 14 (Director of Public Prosecutions).
[301]. Submission 14 (Director of Public Prosecutions), citing R v Mallinder (1986) 23 A Crim R 179, 180, 187.
[302]. Ashdown v The Queen
[2011] VSCA 408 ; (2011) 37 VR 341, 403.
[303]. Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658.
[304]. Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658.
[305]. Harrison v The Queen [2015] VSCA 349 (16 December 2015).
[306]. Director of Public Prosecutions v OJA [2007] VSCA 129; (2007) 172 A Crim R 181, 196.
[307]. Submission 13 (Victoria Legal Aid).
[308]. Submission 13 (Victoria Legal Aid).
[309]. Submission 15 (Victims of Crime Commissioner).
[310]. The Council has analysed data for the offence of aggravated burglary and for the glassing form of recklessly causing serious injury: see [5.271]–[5.272], [5.231]–[5.233], and Appendix 9.
[311]. Yearly distributions and medians are of limited value for assessing the consistency of sentencing where there has only been a small number of charges sentenced in a year.
[312]. The cumulative median sentence length is the measure of the median of an increasing number of sentences imposed. For the offences analysed, the sentences imposed in each consecutive year were added to the sample from which a ‘cumulative median’ was calculated. These graphs show that distributions may not be consistent in consecutive years and the effect on the median resulting from an increase in sentence lengths in one year may be masked by a decrease in sentence lengths in a subsequent year.
[313]. New South Wales Sentencing Council (2013), above n 253, 17.
[314]. Ibid 17–18.
[315]. Sentencing Guidance Stakeholder Discussion Forum (1 March 2016); Submission 2 (Anonymous); Submission 10 (Liberty Victoria); Submission 11 (Law Institute of Victoria); Submission 12 (Criminal Bar Association of Victoria); Submission 13 (Victoria Legal Aid); Submission 14 (Director of Public Prosecutions).
[316]. Submission 13 (Victoria Legal Aid).
[317]. Submission 2 (Anonymous) stated there was ‘rather too much consistency, under the heading of current sentencing practices’; Submission 10 (Liberty Victoria); Submission 11 (Law Institute of Victoria); Submission 13 (Victoria Legal Aid); Submission 14 (Director of Public Prosecutions).
[318]. Submission 14 (Director of Public Prosecutions).
[319]. Submission 11 (Law Institute of Victoria).
[320]. Submission 3 (C. Murphy), citing Gleeson CJ in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 591.
[321]. This has been described as ‘intrajudge disparity’. See Cassia Spohn, How Do Judges Decide? The Search for Fairness and Justice in Punishment (Sage, 2009) 136; Kevin Clancy et al., ‘Sentence Decision-Making: The Logic of Sentence Decisions and the Extent and Sources of Sentence Disparity’ (1981) 72 Journal of Criminal Law and Criminology 524, 526.
[322]. Shai Danziger, Jonathan Levav, and Liora Avnaim-Pesso, ‘Extraneous Factors in Judicial Decisions’ (2011) 108 Proceedings of the National Academy of Sciences 6889.
[323]. Judicial Commission of New South Wales, The Impact of the Standard Non-Parole Period Sentencing Scheme on Sentencing Patterns in New South Wales, Monograph 33 (2010) 17.
[324]. See Chapter 2 at [2.38]–[2.46] for details of these schemes.
[325]. Sentencing Act 1991 (Vic) s 5(2).
[326]. Sentencing Act 1991 (Vic) s 5(2)(g).
[327]. Markarian v The Queen (2005) 228 CLR 357.
[328]. Director of Public Prosecutions v Terrick [2009] VSCA 220; (2009) 24 VR 457, 459.
[329]. The Court of Appeal has provided guidance as to which purpose of sentencing should take precedence in particular circumstances, for example, youthful (R v Mills [1998] 4 VR 235) or mentally ill offenders (R v Verdins [2007] VSCA 102; (2007) 16 VR 269), but the differing factual circumstances of each case mean that this guidance may be limited in its application.
[330]. R v Johnston [2008] VSCA 133; (2008) 186 A Crim R 345, 349.
[331]. For a discussion of the value of the guilty plea in sentencing, see Sentencing Advisory Council, Guilty Pleas in the Higher Courts: Rates, Timing, and Discounts (2015). In that report, the Council found that for just under half of the imprisonment cases that received a discount for a plea of guilty, the discount was in the range of 20%–30% (44.9% of cases), with the next largest group receiving a discount in the range of 30%–40% (26.8% of cases). See also Sentencing Advisory Council, Sentence Indication and Specified Sentencing Discounts: Final Report (2007).
[332]. R v Taylor and O’Meally [1958] VicRp 46; [1958] VR 285, 289 (Lowe and Gavan Duffy JJ); R v Johansen (No 2) [1917] ArgusLawRp 113; [1917] VLR 677, 679; Griffiths v The Queen (1977) 137 CLR 293, 308–309.
[333]. See, for example, Everett and Phillips v The Queen [1994] HCA 49; (1994) 181 CLR 295; Harris v The Queen [1954] HCA 51; (1954) 90 CLR 652.
[334]. Skinner v The King (1913) 16 CLR 336, 339–340; House v The King (1936) 55 CLR 499, 505; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
[335]. Harris v The Queen [1954] HCA 51; (1954) 90 CLR 652.
[336]. Hudson v The Queen [2010] VSCA 332; (2010) 30 VR 610, 618.
[337]. The Council has previously used a similar ‘box and whiskers’ analysis to compare the differences between sentencing practices and the maximum penalties for 19 of the ‘serious’ and ‘significant’ offences in the Sentencing Act 1991 (Vic): see Sentencing Advisory Council, Sentencing Severity for ‘Serious’ and ‘Significant’ Offences: A Statistical Report (2011) 15, Figure 4.
[338]. Offences appear within each category in order of the proportion that the median sentence represents of the maximum penalty, from highest to lowest.
[339]. The offence of cultivating a large commercial quantity of a narcotic plant also has a maximum penalty of life imprisonment, but there were only 4 charges of this offence sentenced in the reference period.
[340]. Submission 14 (Director of Public Prosecutions).
[341]. Prior to 1 July 2015, these acts were rape, compelling sexual penetration, indecent assault, assault with intent to rape, and incest. Since 1 July 2015, these acts are rape, rape by compelling sexual penetration, sexual assault, sexual assault by compelling sexual touching, sexual assault with intent to commit a sexual offence, threat to commit a sexual offence, and incest.
[342]. See Appendix 8.
[343]. See further Sentencing Advisory Council (2012), above n 16, 35.
[344]. The vignettes representing sexual penetration with a child under 12 and indecent act with a child under 16 involved a victim aged 8 years.
[345]. The following offences were also ranked at level 8: manslaughter, culpable driving causing death, negligently causing serious injury (permanent incapacitation), false imprisonment, kidnapping and aggravated burglary (all sexually motivated), trafficking in a large commercial quantity of a drug of dependence, producing child pornography, attempted rape, and assault with attempt to rape.
[346]. The influence of the victim’s age was also evident in the lower rankings of the two sexual penetration offences involving 15 year old children (sexual penetration with a child 12–16 under care, supervision, or authority was ranked at 7 and sexual penetration with a child 12–16 was ranked at 3). However, there was not a high level of consensus on the mean rankings for these offences.
[347]. Those offences were aggravated burglary, kidnapping, false imprisonment, and assault with intent to rape.
[348]. Attempted rape (20-year maximum penalty) and assault with intent to rape (10-year maximum penalty) were also ranked at level 8.
[349]. Warner et al. (2011), above n 15.
[350]. Warner et al. (under review for publication), above n 18.
[351]. See Reid (A Pseudonym) v The Queen [2014] VSCA 145; (2014) 42 VR 295, 311, which discusses the increases in sentences for the offence of incest in Victoria from the mid-1980s, that occurred as a result of a change in attitude towards the offence and realisation of the incidence of familial child abuse.
[352]. This acknowledgment has emerged, in part, due to inquiries such as the Royal Commission into Institutional Responses to Child Sexual Abuse.
[353]. Franklin v The Queen [2013] NSWCCA 122 (24 May 2013) [21]; Freiberg, Donnelly, and Gelb (2015), above n 259, 69–70.
[354]. For a review of the evidence on the effects of child sexual assault on primary and secondary victims, see Georgina Fuller, Non-Offending Parents as Secondary Victims of Child Sexual Assault, Trends and Issues in Crime and Criminal Justice no. 500 (2016) 1–3.
[355]. Submission 7 (Victorian Women’s Trust).
[356]. See, for example, Victorian Law Reform Commission, Sexual Offences: Final Report (2004); Criminal Law Review – Department of Justice, Review of Sexual Offences: Consultation Paper (2013), which led to reforms to Victoria’s sexual offence laws from 1 July 2015 with the passing of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic). Changes have also been made to jury directions in sexual offence cases: Jury Directions Act 2015 (Vic).
[357]. Victoria, Royal Commission into Family Violence, Report and Recommendations (2016); Australian Bureau of Statistics, Personal Safety Survey, cat. no. 4906.0 (2012); Willow Bryant and Tracy Cussen, Homicide in Australia: 2010–11 to 2011–12 National Homicide Monitoring Report, Monitoring Report no. 23 (2015) 1, 7.
[358]. Philippa Chapman, Restructuring Dorian Gray: A New Portrait of Sexual Abuse, Criminology Research Unit Briefing Paper no. 5 (2004) 3.
[359]. Jane Goodman-Delahunty, Profiling Parental Child Sex Abuse, Trends and Issues in Crime and Criminal Justice no. 465 (2014) 1–2.
[360]. Peter Hiller and Christopher R. Goddard, ‘Child Sexual Abuse: Assault in a Violent Context’ (1993) 28(1) Australian Journal of Social Issues 20; Adam M. Tomison, An Evaluation of Child Abuse Decision Making in the Barwon Region: A Report for the Victorian Health Promotion Foundation (1994).
[361]. Adam M. Tomison, Update on Child Sexual Abuse, NCPC Issues no. 5 (1995).
[362]. Crimes Act 1958 (Vic) s 37A.
[363]. Crimes Act 1958 (Vic) s 37B.
[364]. In 2000, parliament increased the maximum penalty for sexual penetration with a child under 12 (under 10, as it then was) from 20 years to 25 years. In 2009, parliament changed the age range of the victim for the offence, from under 10 to under 12 years, following a recommendation made by the Council in a 2009 review of the maximum penalty for offences of sexual penetration with children under 16.
[365]. Crimes (Amendment) Act 2000 (Vic) s 5, substituting section 45 of the Crimes Act 1958 (Vic). Crimes Legislation Amendment Act 2010 (Vic) s 3, amending section 45 of the Crimes Act 1958 (Vic). Sentencing Advisory Council, Maximum Penalties for Sexual Penetration with a Child under 16: Report (2009). The incest offences were amended by the Sentencing and Other Acts (Amendment) Act 1997 (Vic) sch 1.
[366]. Victoria Legal Aid noted that there may be some basis to ‘suggest there is a disparity between current sentences for sexual penetration [with] a child under 12 and community views’: Submission 13 (Victoria Legal Aid).
[367]. Sentencing Advisory Council (forthcoming 2016), above n 258.
[368]. This conclusion is based on a sample of cases involving the offence of sexual penetration with a child under 12 and an assessment of total effective sentences, individual sentences for multiple charges (both before and after cumulation), and non-parole periods in light of the following: the maximum penalty, the legislative intention of the serious sexual offender scheme, particular measures of objective offence seriousness, and applicable authorities regarding the effect of relevant aggravating and mitigating considerations.
[369]. Sample case analysis prepared for Sentencing Advisory Council (forthcoming 2016), above n 258; see also Appendix 4.
[370]. Director of Public Prosecutions v CPD [2009] VSCA 114; (2009) 22 VR 533.
[371]. Director of Public Prosecutions v Werry [2012] VSCA 208; (2012) 37 VR 524; Leeder v The Queen [2010] VSCA 98 (23 April 2010) (note: Leeder v The Queen was an appeal against a sentence imposed for assault with intent to rape in which the Court of Appeal, in comparing the sentencing practices for assault with intent to rape with the sentencing practices for rape, raised a question as to the adequacy of current sentencing practices for rape).
[372]. Director of Public Prosecutions v DDJ [2009] VSCA 115; (2009) 22 VR 444.
[373]. R v Bellerby [2009] VSCA 59 (28 April 2009); Director of Public Prosecutions v DJ [2011] VSCA 250; (2011) 211 A Crim R 367; Director of Public Prosecutions v CJA [2013] VSCA 18 (15 February 2013); Reid (A Pseudonym) v The Queen [2014] VSCA 145; (2014) 42 VR 295; Director of Public Prosecutions v BDJ [2009] VSCA 298 (1 December 2009).
[374]. Director of Public Prosecutions v CPD [2009] VSCA 114; (2009) 22 VR 533.
[375]. Since then, the Court of Appeal has heard one Director’s appeal against the sentence imposed on the offence. The case was originally sentenced on 13 May 2009 (before CPD was handed down); however, the appeal was heard on 10 March 2011 after the decision in CPD. The broader question of the adequacy of current sentencing practices was not addressed at all. The Court of Appeal held that the sentences imposed for the offence were manifestly inadequate, ‘having regard to current sentencing practice, the maximum penalty, the objective seriousness of the offending and the respondent’s personal circumstances’. The court exercised its residual discretion not to intervene for a range of reasons: Director of Public Prosecutions v Husar [2011] VSCA 70 (16 March 2011) [16]–[19].
[376]. Director of Public Prosecutions v DDJ [2009] VSCA 115; (2009) 22 VR 444.
[377]. Director of Public Prosecutions v Dalgliesh (A Pseudonym) S APCR 2015 0190.
[378]. Leeder v The Queen [2010] VSCA 98 (23 April 2010) (an appeal against a sentence imposed for the offence of assault with intent to rape).
[379]. The Court of Appeal criticised the Director for bringing an appeal on the grounds of inadequacy of sentencing practice generally in the absence of a ground that the sentence in the instant case was inadequate.
[380]. Director of Public Prosecutions v Werry (2012) VR 524. The Court of Appeal referred to the Sentencing Council for England and Wales’ sentencing guideline for sexual offences, which at that time had a starting point of five years for the offence of rape. The court said that this ‘strongly suggests that [the Sentencing Council for England and Wales] would not regard the sentence of seven years’ imprisonment ... as so low as to bring the administration of justice into disrepute’ and ‘suggests that the English body would regard the median sentence of five years for rape in this State as perfectly acceptable’.
[381]. Director of Public Prosecutions v OJA [2007] VSCA 129; (2007) 172 A Crim R 181.
[382]. For the offence of sexual penetration with a child under 12, the third quartile is equal to the median (4 years, or 16% of the maximum penalty), so that a median line does not display in Figure 3 or in the global comparison in Figure 2.
[383]. Sample case analysis prepared for Sentencing Advisory Council (forthcoming 2016), above n 258.
[384]. Ibid.
[385]. Director of Public Prosecutions v BDJ [2009] VSCA 298 (1 December 2009); see also Appendix 4.
[386]. Director of Public Prosecutions v Dalgliesh (A Pseudonym) S APCR 2015 0190; see also Appendix 4.
[387]. Sample case analysis prepared for Sentencing Advisory Council (forthcoming 2016), above n 258.
[388]. Director of Public Prosecutions v DJ [2011] VSCA 250; (2011) 211 A Crim R 367.
[389]. The Council notes that there is a particular form of this offence that might be considered to be at the lower end of seriousness. This form has been characterised by the court as ‘consensual’ relationships between people of a similar age, but where the offender is more than two years older than the victim, thereby precluding the defence contained in the Crimes Act 1958 (Vic) s 45(4). The Council examined this issue in its 2009 review of the maximum penalty for sexual penetration with a child under 16. The Council found that 25.7% of charges of the offence (then called sexual penetration with a child 10–16) from 2006–07 to 2007–08 occurred in the context of a ‘boyfriend/girlfriend’ relationship (as described by the court). In general, offenders convicted of this form of the offence were more likely to be younger and closer in age to the victim. However, in 68.9% of the cases where there was such a relationship, there was an age difference of 5 or more years (up to a 20-year age difference). See Sentencing Advisory Council, Maximum Penalties for Sexual Penetration with a Child under 16: Report (2009) 56–60.
[390]. For example, SJ v The Queen [2012] VSCA 237 (28 September 2012).
[391]. See Director of Public Prosecutions v DJ [2011] VSCA 250; (2011) 211 A Crim R 367, 372: ‘in a case where the victim’s consent is not defence, it will be an aggravating feature of the offending if the offender proceeds in the knowledge that the victim is not consenting or, worse still, uses force to achieve his/her sexual purpose’. See also Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 382.
[392]. Sample case analysis prepared for Sentencing Advisory Council (forthcoming 2016), above n 258.
[393]. R v LCC [2006] VSCA 33 (16 February 2006).
[394]. Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361.
[395]. Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 364.
[396]. The relevant maximum penalties are 25 years’ imprisonment for sexual penetration with a child under 12, 15 years’ imprisonment for sexual penetration with a child 12–16 under care, supervision, or authority, and 10 years’ imprisonment for sexual penetration with a child 12–16.
[397]. The Victorian Women’s Trust submitted that a consistent maximum penalty of 25 years should apply to all sexual offences involving children under 16, including sexual penetration with a child 12–16 under care, supervision, or authority, sexual penetration with a child 12–16, and indecent act with a child under 16: Submission 7 (Victorian Women’s Trust).
[398]. Judy Cashmore and Rita Shackel, The Long-Term Effects of Child Sexual Abuse, Child Family Community Australia, Issues Paper no. 11 (2013).
[399]. Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 364.
[400]. A child under 12 cannot, by law, consent to sexual penetration. Similarly, a child aged 12–16 cannot consent to sexual penetration, save for in the limited circumstances constituting a defence to a charge under section 45, provided for in section 45(4) of the Crimes Act 1958 (Vic).
[401]. For example, possession of child pornography was another sexual offence raised as an offence of concern by stakeholders: Meeting with a number of Crown Prosecutors (11 February 2016).
[402]. For example, this may be the case where broader sentencing issues apply to the sentencing of all offences, such as the way a court should approach making orders for cumulation or concurrency when applying the principle of totality.
[403]. There were 1,828 charges of recklessly causing serious injury and 99 charges of negligently causing serious injury sentenced in the Magistrates’ Court over the reference period.
[404]. Sentencing Advisory Council (2012), above n 16, 30–31, 33–35.
[405]. Warner et al. (2011), above n 15, 4.
[406]. Warner et al. (under review for publication), above n 18.
[407]. This is reflected in the recently released report of the Royal Commission into Family Violence: Victoria, Royal Commission into Family Violence (2016), above n 357. See also Kilic v The Queen [2015] VSCA 331 (8 December 2015).
[408]. For example, serious injury offences committed by ‘glassing’ or by ‘one-punch’.
[409]. See, for example, Victoria State Government, Road Safety (Transport Accident Commission, 2016) <https://www.tac.vic.gov.au/road-safety> at 31 March 2016; Sentencing Advisory Council (2015), above n 114, 9.
[410]. See Chapter 2 at [2.53]–[2.59].
[411]. R v Tran [2009] VSCA 252 (12 October 2009) [47] (citations omitted).
[412]. Kilic v The Queen [2015] VSCA 331 (8 December 2015).
[413]. Graham Hryce, ‘Reducing Offenders’ Sentences Sends Wrong Message on Crimes We Shouldn’t Tolerate’, The Age (Melbourne) 11 January 2016 <http://www.theage.com.au/comment/reducing-offenders-sentences-sends-wrong-message-on-crimes-we-shouldnt-tolerate-20160111-gm3bml.html> at 31 March 2016; see also Victoria, Royal Commission into Family Violence (2016), above n 357, vol. III, 189.
[414]. Submission 7 (Victorian Women’s Trust).
[415]. Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658. See also Director of Public Prosecutions v Barnes and Barnes [2015] VSCA 293 (12 November 2015), in which the Court of Appeal characterised sentences for recklessly causing serious injury as lenient but not manifestly inadequate.
[416]. Harrison v The Queen [2015] VSCA 349 (16 December 2015).
[417]. Kane v The Queen [2010] VSCA 199 (23 August 2010).
[418]. R v Tran [2009] VSCA 252 (12 October 2009).
[419]. Harrison v The Queen [2015] VSCA 349 (16 December 2015).
[420]. Harrison v The Queen [2015] VSCA 349 (16 December 2015) [105].
[421]. The court’s observations regarding disparity of community attitudes are consistent with the high ranking of negligently causing serious injury (by driving) in the Council’s community attitudes research, albeit the Council found slightly lower levels of participant agreement for that offence than for sexual offences.
[422]. Harrison v The Queen [2015] VSCA 349 (16 December 2015).
[423]. Gorladenchearau v The Queen [2011] VSCA 432; (2011) 34 VR 149, 161.
[424]. Kilic v The Queen [2015] VSCA 331 (8 December 2016) [67].
[425]. Office of Public Prosecutions, ‘DPP Applies to High Court for Special Leave to Appeal Decision’, Media Release (13 January 2016) <http://www.opp.vic.gov.au/News-and-Media/Media-releases/DPP-applies-to-High-Court-for-special-leave-to-app> at 31 March 2016.
[426]. Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658.
[427]. Suspended sentences were progressively abolished in Victoria; they were abolished in the higher courts for all ‘serious’ and ‘significant’ offences – which includes recklessly causing serious injury – committed on or after 1 May 2011: Sentencing Amendment Act 2010 (Vic) s 12.
[428]. See Appendix 8.
[429]. Where that offence is punishable by five years’ imprisonment or more.
[430]. Crimes Act 1958 (Vic) s 77.
[431]. Sentencing Advisory Council (2012), above n 16, 46, 59–62. The Tasmanian and Victorian Jury Sentencing Studies did not make any specific findings in relation to the offence of aggravated burglary.
[432]. For more discussion of these typologies and an analysis of sentencing practices under each typology, see Sentencing Advisory Council, Aggravated Burglary: Current Sentencing Practices (2011) 27–43.
[433]. See, for example, Director of Public Prosecutions v El Hajje [2009] VSCA 160 (26 June 2009).
[434]. Sentencing Advisory Council (2012), above n 16, 61 (participant M2–19).
[435]. Victoria, ‘Sentencing and Other Acts (Amendment) Bill’, Parliamentary Debates, Legislative Assembly, 24 April 1997, 871 (Jan Wade, Attorney-General).
[436]. Submission 14 (Director of Public Prosecutions).
[437]. Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658.
[438]. Director of Public Prosecutions v El Hajje [2009] VSCA 160 (26 June 2009); Le v The Queen [2010] VSCA 199 (20 July 2010).
[439]. Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658.
[440]. Director of Public Prosecutions v Meyers [2014] VSCA 314; (2014) 44 VR 486.
[441]. Sentencing Advisory Council (2011), above n 432, 29.
[442]. These factors were a co-sentenced offence of causing serious injury, where the offender was serving an existing order, previous imprisonment, the age of offender, and where the offender had substance abuse problems.
[443]. These factors were confrontational aggravated burglary and the offender’s significant health problems or trauma in adulthood.
[444]. Sentencing Advisory Council (2011), above n 432, 58–61.
[445]. Warner et al. (2011), above n 15, 2–3.
[446]. Sentencing Advisory Council (2012), above n 16, 30–31, 33–34.
[447]. See, for example, Destroy the Joint, ‘Counting Dead Women’, Facebook (19 May 2014) <https://www.facebook.com/DestroyTheJoint/photos/a.419017344812682.83661.418382174876199/692198254161255/> at 31 March 2016 (a social media campaign to record the deaths of Australian women as a result of violence); Luke Batty Foundation, Never Alone (Never Alone Luke Batty Foundation, 2015) <http://www.neveralone.com.au/> at 31 March 2016. See also Victoria, Royal Commission into Family Violence, Report and Recommendations (2016) vol. IV, 227–238.
[448]. Victoria State Government, Transport Accident Commission (2016), above n 409; Sentencing Advisory Council (2015), above n 114, 9.
[449]. For an overview of the current and previous maximum penalties, see Judicial College of Victoria, ‘28.2.1 – Current and Historic Penalties for Fatal and Injurious Driving Offences’, Victorian Sentencing Manual (Judicial College of Victoria, 2014) <http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#18588.htm> at 31 March 2016.
[450]. This is based on a value of 40 years being ascribed to life imprisonment in the Council’s analysis; see Appendix 2.
[451]. Director of Public Prosecutions v Daing [2016] VSCA 58 (31 March 2016) [47].
[452]. Between 1 July 2010 and 30 June 2015, 12 offenders were sentenced to life imprisonment for the offence of murder. Three of these cases involved the murder of the offender’s child (or children) with the motivation of punishing the children’s mother, which was considered particularly aggravating. The imposition of a sentence of life imprisonment was intended to denounce the offender’s conduct in the strongest possible terms. Further, in three cases the court did not fix a non-parole period, as no prospects of rehabilitation were identified.
[453]. Pasznyk v The Queen [2014] VSCA 87; (2014) 43 VR 169.
[454]. Sentencing Advisory Council (2015), above n 114, 27–32.
[455]. Submission 12 (Criminal Bar Association of Victoria).
[456]. Submission 12 (Criminal Bar Association of Victoria).
[457]. This offence involves the offender killing a person by an act that is intended to kill or really seriously injure that person, or with knowledge that someone would probably die or suffer really serious injury, where there was the presence of a suicide pact; see Crimes Act 1958 (Vic) s 6B(1).
[458]. This offence involves the offender killing a person by an act that is not intended to kill or really seriously injure someone, where the act causing death was unlawful and dangerous and there was an appreciable risk of serious injury being caused.
[459]. This offence involves the offender killing a person by an act that is not intended to kill or really seriously injure someone, where 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’. The offending behaviour encompassed in the offence of manslaughter may be even wider, and involve circumstances of family violence, since the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) came into force (which abolished defensive homicide and inserted a provision on family violence and self-defence).
[460]. Sherna v The Queen [2011] VSCA 242; (2011) 32 VR 668.
[461]. This may be the case if, for example, an offender has pleaded guilty for the commercial form of the offence rather than the large commercial form. In sentencing, the judge must not aggravate the sentence on the basis that the quantity of drugs would constitute a more serious form of the offence.
[462]. For further discussion of offender roles in these offences, see Sentencing Advisory Council, Major Drug Offences: Current Sentencing Practices (2015).
[463]. Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70; see also Grozdanov v The Queen [2012] VSCA 94; (2012) 34 VR 426.
[464]. The offences of trafficking in a drug of dependence include attempting to traffick a drug of dependence within the same offence.
[465]. Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 71–71AA.
[466]. Warner et al. (2011), above n 15.
[467]. Warner et al. (under review for publication), above n 18.
[468]. The influence of intention was reduced in the judgment of seriousness for an attempted offence of trafficking in a large commercial quantity compared with the completed offence: Sentencing Advisory Council (2012), above n 16, 30–31, 36.
[469]. Drugs, Poisons and Controlled Substances Amendment Act 2016 (Vic).
[470]. This figure is calculated based on a value of 40 years being ascribed to life imprisonment in the Council’s analysis; see Appendix 2.
[471]. Nguyen v The Queen (2010) 208 A Crim R 464.
[472]. Spiteri v The Queen [2011] VSCA 33; (2011) 206 A Crim R 528.
[473]. Spiteri v The Queen [2011] VSCA 33; (2011) 206 A Crim R 528, 540.
[474]. Nam Son Nguyen v The Queen S APCR 2015 0199.
[475]. For some offences, two cases were examined at each data point. As there were only four charges of cultivating a large commercial quantity of a narcotic plant during the reference period, the Council examined all four of those cases. See Appendix 6, Tables A38–A41.
[476]. R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
[477]. Appendix 6, Table A41, case identifier D20.
[478]. Appendix 6, Table A39, case identifier D11.
[479]. Nguyen v The Queen [2010] VSCA 244 (16 September 2010) [4].
[480]. Appendix 6, Table A38, case identifiers D2, D3, D5, and D6.
[481]. Appendix 6, Table A38, case identifiers D5 and D6; Appendix 6, Table A39, case identifier D8.
[482]. Nam Son Nguyen v The Queen S APCR 2015 0199.
[483]. Further, more detailed, analysis of a larger sample of cases is required to confirm this finding in relation to consistency of approach in the sentencing of drug offences.
[484]. Sentencing Advisory Council (2012), above n 16, 30–31, 46–47.
[485]. Crimes Act 1958 (Vic) s 320.
[486]. Victorian Parliament, Law Reform Committee, Administration of Justice Offences: Final Report (2004) 45.
[487]. R v Rogerson [1992] HCA 25; (1992) 174 CLR 268, 284.
[488]. Director of Public Prosecutions v Aydin and Kirsch [2005] VSCA 86 (3 May 2005) [11] (Callaway JA).
[489]. Director of Public Prosecutions v Aydin and Kirsch [2005] VSCA 86 (3 May 2005) [28] (Eames JA).
[490]. Victorian Parliament, Law Reform Committee (2004), above n 486, xiv–xvii.
[491]. Victorian Parliament, Law Reform Committee (2004), above n 486, 74.
[492]. Attempting to pervert the course of justice attracts a maximum penalty of 15 years in the Northern Territory, 14 years in New South Wales, 10 years under Commonwealth legislation, 7 years in Queensland, Western Australia, and the Australian Capital Territory, and 4 years in South Australia. See Criminal Code Act (NT) sch 1 cl 109; Crimes Act 1900 (NSW) s 319; Crimes Act 1914 (Cth) s 143; Criminal Code Act 1899 (Qld) s 140; Criminal Code Act Compilation Act 1913 (WA) app B cl 143; Criminal Code 2002 (ACT) s 713; Criminal Law Consolidation Act 1935 (SA) s 256.
[493]. Road Safety Act 1986 (Vic) s 61.
[494]. Submission 3 (C. Murphy).
[495]. Submission 3 (C. Murphy).
[496]. Victoria, Royal Commission into Family Violence (2016), above n 357. The Victorian Government has indicated its intention to implement all 227 recommendations: Premier of Victoria, ‘Government Receives Report of the Royal Commission into Family Violence’, Media Release (29 March 2016) <http://www.premier.vic.gov.au/government-receives-report-of-the-royal-commission-into-family-violence/> at 31 March 2016.
[497]. Victoria, Royal Commission into Family Violence (2016), above n 357, vol. III, 232–233, Recommendation 84.
[498]. Inserted by Sentencing (Amendment) Act 2003 (Vic) pt 2.
[499]. Sentencing Act 1991 (Vic) s 6AA.
[500]. Victoria, ‘Sentencing (Amendment) Bill’, Parliamentary Debates, Legislative Assembly, 20 March 2003, 479 (Rob Hulls, Attorney-General).
[501]. Victoria, ‘Sentencing (Amendment) Bill’, Parliamentary Debates, Legislative Assembly, 20 March 2003, 479 (Rob Hulls, Attorney-General).
[502]. Victoria, ‘Sentencing (Amendment) Bill’, Parliamentary Debates, Legislative Assembly, 20 March 2003, 480 (Rob Hulls, Attorney-General).
[503]. R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209, 220.
[504]. R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209, 221.
[505]. R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209, 221.
[506]. Money v The Queen [2007] NSWCCA 317; (2007) 49 MVR 159, 162.
[507]. Legge v The Queen [2007] NSWCCA 244 (27 July 2007) [59]; Dolan v The Queen [2010] NSWCCA 10 (11 February 2010) [33].
[508]. Frahm v The Queen [2009] NSWCCA 249 (24 September 2009) [17].
[509]. R v Errington [2005] NSWCCA 348; (2005) 157 A Crim R 553, 562.
[510]. R v Berg [2004] NSWCCA 300; (2004) 41 MVR 399, 403.
[511]. R v Errington [2005] NSWCCA 348; (2005) 157 A Crim R 553, 561.
[512]. Freiberg (2002), above n 98, 208.
[513]. Kate Warner, ‘The Role of Guideline Judgments in the Law and Order Debate in Australia’ (2003) 27 Criminal Law Journal 8, 10.
[514]. Ibid 9.
[515]. R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209, 221 (Spigelman CJ).
[516]. Submission 11 (Law Institute of Victoria).
[517]. Boulton v The Queen [2014] VSCA 342 (22 December 2014).
[518]. Sarah Krasnostein, ‘Boulton v The Queen: The Resurrection of Guideline Judgments in Australia?’ (2015) 27(1) Current Issues in Criminal Justice 41, 53.
[519]. Submission 13 (Victoria Legal Aid) (emphasis in original).
[520]. Submission 4 (Youthlaw).
[521]. Submission 11 (Law Institute of Victoria).
[522]. Freiberg (2014), above n 23, 39–40.
[523]. Ibid 40.
[524]. Sentencing Advisory Council, Parole and Sentencing: Research Report (2016) 27, 31.
[525]. See Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305, 340–341.
[526]. These orders provide for dismissals and conditional discharges and are known as section 10 orders due to their provision in section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
[527]. Patrizia Poletti, Impact of the High Range PCA Guideline Judgment on Sentencing Drink Drivers in NSW, Sentencing Trends and Issues no. 35 (2005) 18.
[528]. Stephanie d’Apice, The Impact of the High Range PCA Guideline Judgment on Sentencing for PCA Offences in NSW, Crime and Justice Bulletin no. 123 (2008) 8–9.
[529]. The use of section 10 orders declined from a standard deviation of 7.7 to a standard deviation of 2.6 (a reduction of 5.1 percentage points); ibid 5.
[530]. Lily Trimboli, Sentencing Snapshot: Drink-Driving, Crime and Justice Statistics: Issue Paper no. 70 (2012) 3–4.
[531]. R v Henry (1999) 46 NSWLR 346, 371.
[532]. Lynne A. Barnes and Patrizia Poletti, Sentencing Trends for Armed Robbery and Robbery in Company: The Impact of the Guideline in R v Henry, Sentencing Trends and Issues no. 26 (2003).
[533]. Ibid 49.
[534]. Ibid; Lynne A Barnes and Patrizia Poletti, Sentencing Robbery Offenders Since the Henry Guideline Judgment, Research Monograph 30 (2007) 49.
[535]. Harrison v The Queen [2015] VSCA 349 (16 December 2015).
[536]. Submission 6 (Anonymous).
[537]. Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
[538]. Submission 14 (Director of Public Prosecutions).
[539]. Meeting with a number of Crown Prosecutors (11 February 2016).
[540]. Submission 5 (Whitehorse City Council); Submission 16 (Local Government Professionals Inc.).
[541]. Submission 15 (Victims of Crime Commissioner).
[542]. Sentencing Advisory Council (2009), above n 265, 7.
[543]. Victoria, Royal Commission into Family Violence (2016), above n 357, vol. III, 233.
[544]. Freiberg (2002), above n 98, 211.
[545]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584.
[546]. Freiberg and Sallmann (2008), above n 167, 68.
[547]. See Sentencing Act 1991 (Vic) pt 2AA; Crimes (Sentencing Procedure) Act 1999 (NSW) pt 3 div 4; Penalties and Sentences Act 1992 (Qld) pt 2A; Criminal Law (Sentencing) Act 1988 (SA) pt 2 div 4; Sentencing Act 1995 (WA) s 143.
[548]. R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209.
[549]. R v Henry (1999) 46 NSWLR 346.
[550]. Re Attorney General’s Application No 1 under s 26 of the Criminal Procedure Act [1999] NSWCCA 435; (1999) 48 NSWLR 327.
[551]. R v Wong [1999] NSWCCA 420; (1999) 48 NSWLR 340; overruled by Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584.
[552]. R v Thomson (2000) 49 NSWLR 383.
[553]. R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252.
[554]. Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146.
[555]. Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305.
[556]. Judicial Commission of New South Wales, ‘Guideline Judgments Promulgated’, Sentencing Bench Book (Judicial Commission of New South Wales, 2014) <http://www.judcom.nsw.gov.au/publications/benchbks/sentencing/sentencing_guidelines.html#p13-620> at 29 March 2016, [13-620].
[557]. Re Attorney-General’s Application No 1 under s 26 of the Criminal Procedure Act [1999] NSWCCA 435; (1999) 48 NSWLR 327.
[558]. See Kate Warner (2003) above n 513, 11–12.
[559]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584.
[560]. See, for example, John Anderson, ‘Standard Minimum Sentencing and Guideline Judgments: An Uneasy Alliance in the Way of the Future’ (2006) 30(4) Criminal Law Journal 203; Krasnostein (2015), above n 518, 46.
[561]. New South Wales, ‘Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill’, Parliamentary Debates, Legislative Assembly, 23 October 2002, 5815 (Bob Debus, Attorney-General).
[562]. R v Payne [2004] SASC 160; (2004) 89 SASR 49, 59.
[563]. R v Place [2002] SASC 101; (2002) 81 SASR 395, 408.
[564]. R v Payne [2004] SASC 160; (2004) 89 SASR 49, 55–56.
[565]. R v King (1988) 48 SASR 555, 557 (Cox J).
[566]. Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150, 165.
[567]. Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150, 165.
[568]. Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150, 166. This approach to ‘authoritative guidance’ was also approved by the High Court in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 606–607 (Gaudron, Gummow, and Hayne JJ).
[569]. R v Place [2002] SASC 101; (2002) 81 SASR 395, 404–405.
[570]. R v D [1997] SASC 6350; (1997) 69 SASR 413.
[571]. Section 29D concerning sentencing standards for offences involving paedophilia was inserted into the Criminal Law (Sentencing) Act 1988 (SA) by section 8 of the Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) after the commencement of the guideline judgment provisions. See also South Australia, ‘Statutes Amendment (Sentencing of Sex Offenders) Bill’, Parliamentary Debates, House of Assembly, 11 April 2005, 2276 (Michael Atkinson, Attorney-General); sentencing standards and the R v D [1997] SASC 6350; (1997) 69 SASR 413 provisions are considered in R v Marien [2011] SASCFC 116 (26 October 2011).
[572]. R v Payne [2004] SASC 160; (2004) 89 SASR 49.
[573]. R v Payne [2004] SASC 160; (2004) 89 SASR 49, 64–65.
[574]. R v Payne [2004] SASC 160; (2004) 89 SASR 49, 66.
[575]. See, for example, R v Tognini [2000] WASCA 31; (2000) 22 WAR 291.
[576]. Guideline judgments are provided for in one section of the Western Australian legislation: Sentencing Act 1995 (WA) s 143.
[577]. R v GP (1997) 18 WAR 196, 235.
[578]. R v GP (1997) 18 WAR 196, 235.
[579]. R v GP (1997) 18 WAR 196, 221.
[580]. R v GP (1997) 18 WAR 196, 235.
[581]. R v GP (1997) 18 WAR 196, 235.
[582]. R v Kerr (Unreported, Supreme Court of Western Australia Court of Criminal Appeal, Kennedy, Franklyn, and Walsh JJ, 15 August 1997) 4.
[583]. Jones v The Queen [1998] WASCA 123 (8 May 1998).
[584]. Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330, 354.
[585]. Yates v The State of Western Australia [2008] WASCA 144 (10 July 2008).
[586]. Penalties and Sentences Act 1992 (Qld) pt 2A, inserted by section 6 of the Penalties and Sentences (Sentencing Advisory Council) Amendment Act 2010 (Qld).
[587]. Police v Bond [2014] QMC 29 (23 October 2014) [14].
[588]. Boulton v The Queen [2014] VSCA 342 (22 December 2014).
[589]. Boulton v The Queen [2014] VSCA 342 (22 December 2014) [40].
[590]. Krasnostein (2015), above n 518, 51.
[591]. Ibid 41.
[592]. Ibid 49.
[593]. Ibid 51.
[594]. Ibid 52.
[595]. Ashdown v The
Queen [2011] VSCA 408 ; (2011) 37 VR 341, 401 (Redlich JA).
[596]. R v Ngui [2000] VSCA 78; (2000) 1 VR 579, 584 (Winneke P) quoted in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 616.
[597]. Nash v The Queen [2013] VSCA 172; (2013) 40 VR 134.
[598]. Nash v The Queen [2013] VSCA 172; (2013) 40 VR 134, 137.
[599]. Nash v The Queen [2013] VSCA 172; (2013) 40 VR 134, 137.
[600]. Kumar v The Queen [2013] VSCA 191 (17 July 2013) [28] (citations omitted).
[601]. Miller v The Queen [2012] VSCA 265 (31 October 2012).
[602]. Miller v The Queen [2012] VSCA 265 (31 October 2012) [39].
[603]. Harrison v The Queen [2015] VSCA 349 (16 December 2015) [137]–[141].
[604]. Submission 14 (Director of Public Prosecutions).
[605]. New South Wales, ‘Criminal Procedure Amendment (Sentencing Guidelines) Bill’, Parliamentary Debates, Legislative Assembly, 28 October 1998, 9191 (Gabrielle Harrison, Minister for Sport and Recreation).
[606]. Re Attorney-General’s Application No 1 under s 26 of the Criminal Procedure Act (1999) 48 NSLWR 327, 331; Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Content of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305, 319; Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196, 202.
[607]. Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196.
[608]. Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196, 205.
[609]. Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196, 205–206.
[610]. Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196, 207.
[611]. Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196, 208.
[612]. Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196, 209.
[613]. Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) [2002] NSWCCA 515; (2002) 137 A Crim R 196, 203.
[614]. Criminal Law (Sentencing) Act 1988 (SA) s 29B.
[615]. Criminal Law (Sentencing) Act 1988 (SA) s 29C.
[616]. Penalties and Sentences Act 1992 (Qld) pt 2A.
[617]. R v Major; ex parte Attorney-General (Qld) [2011] 1 Qd R 465, 489. The Attorney-General does not have this power to appeal a sentence in Victoria.
[618]. Freiberg (2002), above n 98, 215.
[619]. Re Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 [2002] NSWCCA 515; (2002) 137 A Crim R 196.
[620]. See Submission 8 (M. Wootten); Submission 13 (Victoria Legal Aid); Submission 14 (Director of Public Prosecutions).
[621]. Submission 14 (Director of Public Prosecutions).
[622]. Submission 13 (Victoria Legal Aid).
[623]. Submission 11 (Law Institute of Victoria).
[624]. Submission 11 (Law Institute of Victoria).
[625]. Submission 13 (Victoria Legal Aid).
[626]. Submission 14 (Director of Public Prosecutions).
[627]. See Victoria, Royal Commission into Family Violence (2016), above n 357, vol. III, 233.
[628]. Sentencing Act 1991 (Vic) s 6AE.
[629]. Sentencing Act 1991 (Vic) s 6AB.
[630]. Sentencing Act 1991 (Vic) s 6AD.
[631]. Sentencing Act 1991 (Vic) s 6AE.
[632]. Submission 13 (Victoria Legal Aid).
[633]. Sentencing Act 1991 (Vic) s 108C(e).
[634]. Sentencing Guidance Stakeholder Discussion Forum (1 March 2016).
[635]. Sentencing Act 1991 (Vic) s 6AC.
[636]. Sentencing Act 1991 (Vic) s 6AE.
[637]. Freiberg (2002), above n 98, 216; cf. Sentencing Act 1991 (Vic) s 6AC.
[638]. Transcript of mention hearing, Director of Public Prosecutions v Dalgliesh (A Pseudonym) S APCR 2015 0190 (4 February 2016).
[639]. Submission 14 (Director of Public Prosecutions).
[640]. See R v Wong [1999] NSWCCA 420; (1999) 48 NSWLR 340, overruled by Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584.
[641]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 597 (Gleeson CJ), 609–611 (Gaudron, Gummow and Hayne JJ).
[642]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 614–615 (Gaudron, Gummow, and Hayne JJ).
[643]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 611, 612–13 (Gaudron, Gummow, and Hayne JJ).
[644]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 635 (Kirby J).
[645]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 606 (Gaudron, Gummow, and Hayne JJ).
[646]. Krasnostein (2015), above n 518, 47.
[647]. R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252.
[648]. See Criminal Legislation Amendment Act 2001 (NSW).
[649]. R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, 275.
[650]. R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, 283.
[651]. R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, 284.
[652]. R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, 275–276.
[653]. R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, 278.
[654]. R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, 282.
[655]. R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, 282.
[656]. Submission 14 (Director of Public Prosecutions).
[657]. Submission 14 (Director of Public Prosecutions).
[658]. Submission 13 (Victoria Legal Aid) (citations omitted).
[659]. Submission 13 (Victoria Legal Aid).
[660]. R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252, 284.
[661]. Krasnostein (2015), above n 518, 53.
[662]. Sentencing Advisory Council (Queensland), Minimum Standard Non-Parole Periods: Final Report (2011) xiv.
[663]. For example, murder, where the victim was a child under 18 years of age, or where the victim was of a prescribed class (including police officers) carries a standard non-parole period of 25 years compared to 20 years in other circumstances: Crimes (Sentencing Procedure) Act 1999 (NSW) pt 4 div 1A.
[664]. Crimes (Sentencing Procedure) Act 1999 (NSW) pt 4 div 1A.
[665]. Crimes (Sentencing Procedure) Act 1999 (NSW) s 54A(2).
[666]. Judicial Commission of New South Wales, ‘[7-910] What is the Standard Non-Parole Period?’, Sentencing Bench Book (Judicial Commission of New South Wales, 2016); The Honourable Justice R. A. Hulme, ‘Significant Criminal Appellate Decisions in 2013’ (2013) 25(11) Judicial Officers’ Bulletin 89, 89.
[667]. Judicial Commission of New South Wales (2016), above n 666; Stewart v The Queen [2012] NSWCCA 183 (29 August 2012) [38]; Williams v The Queen [2012] NSWCCA 172 (16 August 2012) [42].
[668]. See discussion in New South Wales Law Reform Commission, Sentencing: Report 139 (2013) 179–180.
[669]. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120.
[670]. R v Murrell [2012] NSWCCA 90 (9 May 2012) [36], quoting Zreika v The Queen [2012] NSWCCA 44; (2012) 223 A Crim R 460, 473.
[671]. Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2).
[672]. R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168.
[673]. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 132.
[674]. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 132.
[675]. Crimes (Sentencing Procedure) Act 1999 (NSW) s 54B(2).
[676]. Sentencing Act 1995 (NT) ss 53A, 55, 55A.
[677]. Sentencing Act 1995 (NT) s 53A.
[678]. Sentencing Act 1995 (NT) s 55.
[679]. Sentencing Act 1995 (NT) s 55A.
[680]. Sentencing Act 1995 (NT) ss 55–55A. All other sentences for imprisonment longer than 12 months attract a minimum non-parole period of 50% of the term of imprisonment: Sentencing Act 1995 (NT) s 54.
[681]. Sentencing Act 1995 (NT) ss 55(2), 55A(2).
[682]. Criminal Law (Sentencing) Act 1988 (SA) ss 32(5)(ab), 32(5)(ba).
[683]. Criminal Law (Sentencing) Act 1988 (SA) ss 32A(2)(b), 32A(3).
[684]. Criminal Code 1899 (Qld) s 305. Other offences also subject to defined percentage and defined term schemes include the following: murder and serious child sexual offences attract a minimum defined term non-parole period of 20 years, and all other life terms attract a minimum defined term non-parole period of 15 years (Corrective Services Act 2006 (Qld) ss 181, 181A); serious violent offenders are eligible for parole only after serving the lesser of 80% of the term of imprisonment or 15 years (Corrective Services Act 2006 (Qld) s 182); drug trafficking offences and unlawful striking causing death are only eligible for parole after serving the lesser of 80% of the term of imprisonment or 15 years (Corrective Services Act 2006 (Qld) s 182A); all other offenders (depending on date of commission of offence) are not eligible for parole prior to serving 50% of the term of imprisonment (Corrective Services Act 2006 (Qld) s 184).
[685]. Sentencing Advisory Council (Queensland) (2011), above n 662, xvi.
[686]. See, for example, the discussion contained in Director of Public Prosecutions v OJA [2007] VSCA 129; (2007) 172 A Crim R 181, 195–196.
[687]. Crimes (Sentencing Procedure) Act 1999 (NSW) s 54A(2).
[688]. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 132.
[689]. See [3.12]–[3.14].
[690]. Submission 1 (G. Silbert); Submission 2 (Anonymous).
[691]. Submission 1 (G. Silbert).
[692]. Submission 12 (Criminal Bar Association of Victoria) 12; Submission 13 (Victoria Legal Aid).
[693]. Submission 2 (Anonymous); Submission 13 (Victoria Legal Aid).
[694]. Submission 13 (Victoria Legal Aid).
[695]. As discussed in Chapter 6.
[696]. The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision): Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2).
[697]. Submission 2 (Anonymous).
[698]. Submission 11 (Law Institute of Victoria).
[699]. Sentencing Advisory Council (2016), above n 524.
[700]. Ibid 52.
[701]. Ibid.
[702]. Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 629.
[703]. Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 629.
[704]. Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 538, adopting the words of Jenkinson J in R v Morgan and Morgan (1980) 7 A Crim R 146, 154.
[705]. Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 530–531; R v Morgan and Morgan (1980) 7 A Crim R 146, 155.
[706]. R v Hillsley [1992] FCA 39; (1992) 105 ALR 560, 572.
[707]. See, for example, R v Morgan and Morgan (1980) 7 A Crim R 146, 154–155; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531; R v Krasnov [1995] VSC 198 (21 September 1995) [22].
[708]. Submission 11 (Law Institute of Victoria); Submission 12 (Criminal Bar Association of Victoria); Submission 13 (Victoria Legal Aid).
[709]. Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013 (NSW).
[710]. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 132.
[711]. Within the framework provided by section 5 of the Sentencing Act 1991 (Vic).
[712]. Markarian v The Queen (2005) 228 CLR 357, 378, adopted by Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 131–132.
[713]. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 132.
[714]. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 132.
[715]. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 132.
[716]. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 132.
[717]. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 132. See also R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, 186–187; SKA v The Queen [2009] NSWCCA 186 (14 July 2009) [129]–[137].
[718]. R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, 189.
[719]. R v Koloamatangi [2011] NSWCCA 288 (20 December 2011) [19], citing Carlton v The Queen [2008] NSWCCA 244; (2008) 189 A Crim R 332, 349.
[720]. Ross v The Queen [2012] NSWCCA 161 (4 July 2012) [22].
[721]. Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 133.
[722]. Submission 2 (Anonymous); Submission 15 (Victims of Crime Commissioner).
[723]. Submission 2 (Anonymous).
[724]. As discussed at [7.47]–[7.48]; see Sentencing Advisory Council (2016), above n 524.
[725]. In its 2011 report Aggravated Burglary: Current Sentencing Practices, the Council identified six broad categories of aggravated burglary representing different cohorts of offenders and offending within the single offence of aggravated burglary: Sentencing Advisory Council (2011), above n 432, ch 4.
[726]. Crimes Act 1958 (Vic) ss 76–77.
[727]. Crimes (Sentencing Procedure) Act 1999 (NSW) s 54D(2).
[728]. 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).
[729]. Sentencing Act 1991 (Vic) s 113A.
[730]. This may occur where child 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).
[731]. Matters to be taken into account when sentencing children are listed in section 362 of the Children, Youth and Families Act 2005 (Vic). A child is a person who is aged 10 years or older but under 18 years at the time of an offence and aged under 19 years when court proceedings begin.
[732]. Submission 4 (Youthlaw).
[733]. Submission 12 (Criminal Bar Association of Victoria).
[734]. Submission 13 (Victoria Legal Aid).
[735]. Sentencing Act 1991 (Vic) s 32. See discussion at [2.23]–[2.25].
[736]. R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276.
[737]. Sentencing Act 1991 (Vic) s 8A.
[738]. See, for example, New South Wales Sentencing Council (2013), above n 253, 7; Submission 10 (Liberty Victoria).
[739]. Submission 13 (Victoria Legal Aid).
[740]. Submission 13 (Victoria Legal Aid).
[741]. Submission 13 (Victoria Legal Aid).
[742]. Sentencing Advisory Council (Queensland) (2011), above n 662, xv.
[743]. Ibid 20.
[744]. Tasmania Law Reform Institute, Sentencing: Final Report No 11 (2008) 209.
[745]. Submission 13 (Victoria Legal Aid), citing Sentencing Advisory Council (Queensland) (2011), above n 662.
[746]. Submission 11 (Law Institute of Victoria).
[747]. New South Wales Law Reform Commission, Sentencing: Interim Report on Standard Minimum Non-Parole Periods (2012) 22. See also discussion in Tasmania Law Reform Institute (2008), above n 744, 209.
[748]. Submission 13 (Victoria Legal Aid).
[749]. New South Wales Law Reform Commission (2012), above n 747, 25. See, for example, Stewart v The Queen [2012] NSWCCA 183 (29 August 2012) [38]; Subramaniam v The Queen [2013] NSWCCA 159 (3 July 2013).
[750]. New South Wales Law Reform Commission (2012), above n 747, 25–27.
[751]. Sentencing Guidance Stakeholder Discussion Forum (1 March 2016).
[752]. Sentencing Guidance Stakeholder Discussion Forum (1 March 2016).
[753]. Sentencing Guidance Stakeholder Discussion Forum (1 March 2016).
[754]. See New South Wales Law Reform Commission (2012), above n 747, 25–27.
[755]. Submission 2 (Anonymous).
[756]. See Criminal Law Review – Department of Justice, Complicity Reforms (2014) 4.
[757]. The Act came into operation on 1 November 2014; Victoria, Victoria Government Gazette, No. S 350, 7 October 2014, 1.
[758]. Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic) s 6.
[759]. Criminal Procedure Act 2009 (Vic) sch 1 cl 4A.
[760]. Sentencing Act 1991 (Vic) s 9(1).
[761]. Sentencing Act 1991 (Vic) s 9(1).
[762]. Sentencing Act 1991 (Vic) s 9(1A).
[763]. Sentencing Act 1991 (Vic) s 6A.
[764]. See [5.64]–[5.70] for further explanation of the Council’s findings on the community’s views on the objective seriousness of various offences.
[765]. See [7.85]–[7.86] for further explanation of this concept.
[766]. New South Wales Sentencing Council (2013), above n 253, 9.
[767]. Ibid.
[768]. Submission 13 (Victoria Legal Aid).
[769]. Submission 12 (Criminal Bar Association of Victoria).
[770]. Submission 12 (Criminal Bar Association of Victoria).
[771]. Crimes Act 1958 (Vic) s 318; see also Pasznyk v The Queen [2014] VSCA 87; (2014) 43 VR 169.
[772]. See [5.137]–[5.143] for further discussion.
[773]. See, for example, Director of Public Prosecutions v CPD [2009] VSCA 114; (2009) 22 VR 533; Director of Public Prosecutions v DDJ [2009] VSCA 115; (2009) 22 VR 444; Leeder v The Queen [2010] VSCA 98 (23 April 2010); R v Bellerby [2009] VSCA 59 (28 April 2009); Director of Public Prosecutions v DJ [2011] VSCA 250; (2011) 211 A Crim R 367; Director of Public Prosecutions v BDJ [2009] VSCA 298 (1 December 2009); Director of Public Prosecutions v OJA [2007] VSCA 129; (2007) 172 A Crim R 181.
[774]. Crimes Act 1958 (Vic) s 45(4)(b).
[775]. Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658.
[776]. Director of Public Prosecutions v Aydin and Kirsch [2005] VSCA 86 (3 May 2005) [12].
[777]. Director of Public Prosecutions v Aydin and Kirsch [2005] VSCA 86 (3 May 2005) [10].
[778]. Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658, 674.
[779]. Crimes (Sentencing Procedure) Act 1999 (NSW) pt 4 div 1A; for a comparison of the standard non-parole periods and maximum penalties of offences in the standard non-parole period scheme, see New South Wales Law Reform Commission (2012), above n 747, Appendix A.
[780]. Eric Stockdale and Keith Devlin, Sentencing (1987) [1.16]–[1.18].
[781]. Sentencing Task Force, Victoria, Review of Statutory Maximum Penalties in Victoria: Report to the Attorney-General (1989).
[782]. See, for example, discussion of the Council’s own reviews of various maxima at [9.6]–[9.12].
[783]. Sentencing Guidance Stakeholder Discussion Forum (1 March 2016).
[784]. See, for example, Harrison v The Queen [2015] VSCA 349 (16 December 2015) [141], where the Court stated that, for negligently causing serious injury involving driving, in the upper category of this offence ‘sentences of six or seven years would have been well within range’ (where the maximum penalty for negligently causing serious injury is 10 years).
[785]. Boulton v The Queen [2104] VSCA 342 (22 December 2014) [131].
[786]. Sentencing Guidance Stakeholder Discussion Forum (1 March 2016).
[787]. Boulton v The Queen [2104] VSCA 342 (22 December 2014) [131].
[788]. For a further explanation of the ‘median sentence’, see Sentencing Advisory Council (2014), above n 215, [2.19]–[2.23].
[789]. Appendix 4 contains comprehensive quantitative and qualitative data on each of the sexual offences presented in this section.
[790]. Crimes Act 1958 (Vic) s 38.
[791]. Crimes Act 1958 (Vic) s 44(1).
[792]. Crimes Act 1958 (Vic) s 44(2).
[793]. Crimes Act 1958 (Vic) s 45(2)(a).
[794]. Crimes Act 1958 (Vic) s 45(2)(b).
[795]. R v Howes [2000] VSCA 159; (2000) 2 VR 141, 143.
[796]. Crimes Act 1958 (Vic) s 45(1), (2)(c).
[797]. Crimes Act 1958 (Vic) s 45(9).
[798]. Crimes Act 1958 (Vic) s 47.
[799]. Director of Public Prosecutions v Scott [2004] VSC 129 (20 April 2004) [16]; Curtis v The Queen [2011] VSCA 102 (15 April 2011) [12]–[13].
[800]. R v Court [1989] AC 28; R v RL [2009] VSCA 95 (19 May 2009); Sabet v The Queen [2011] VSCA 124 (5 May 2011).
[801]. See Crimes Act 1958 (Vic) s 37E.
[802]. Crimes Act 1958 (Vic) s 47A.
[803]. Director of Public Prosecutions v Walters (A Pseudonym) [2015] VSCA 303 (17 November 2015) [69] (Maxwell P, Redlich, Tate, and Priest JJA).
[804]. Sentencing Guidance Stakeholder Discussion Forum (1 March 2016).
[805]. See, for example, Subramaniam v The Queen [2013] NSWCCA 159 (3 July 2013) [58]; Williams v The Queen [2012] NSWCCA 172 (16 August 2012) [42].
[806]. Sentencing Advisory Council (Tasmania), Sex Offence Sentencing: Final Report (2015) 84, quoting Andrew Ashworth, ‘Techniques of Guidance on Sentencing’ (1984) Criminal Law Review 519, 521.
[807]. Sentencing Advisory Council (Tasmania) (2015), above n 806, 84.
[808]. Julian V. Roberts, ‘Structured Sentencing: Lessons from England and Wales for Common Law Jurisdictions’ (2012) 14(3) Punishment & Society 267.
[809]. See discussion at [2.38]–[2.60].
[810]. Sentencing Council for England and Wales, About Us (Sentencing Council for England and Wales, 2015) <https://www.sentencingcouncil.org.uk/about-us/> at 31 March 2016.
[811]. Coroners and Justice Act 2009 (UK) s 125(1).
[812]. See Coroners and Justice Act 2009 (UK) pt 4 ch 1.
[813]. Paul Wiles, ‘Foreword’ in Julian V. Roberts (ed.) Exploring Sentencing Practice in England and Wales (2015) xii.
[814]. Coroners and Justice Act 2009 (UK) sch 15.
[815]. Julian V. Roberts, ‘Sentencing Guidelines and Judicial Discretion: Evolution of the Duty of the Courts to Comply in England and Wales’ (2011) 51 British Journal of Criminology 997, 998; see, for example, R v Aramah (1982) 4 Cr App R (S) 407.
[816]. Andrew Ashworth and Julian V. Roberts, ‘The Origins and Nature of the Sentencing Guidelines in England and Wales’ in Andrew Ashworth and Julian V. Roberts (eds), Sentencing Guidelines: Exploring the English Model (2013) 4.
[817]. Saul Holt, ‘Appellate Sentencing Guidance in New Zealand’ (2006) 3 New Zealand Post-Graduate Law E-Journal <http://www.nzpglejournal.auckland.ac.nz/en/about/subscribe/issue2006-1.html> at 31 March 2016, 19–20.
[818]. Julian V. Roberts and Anne Rafferty, ‘Sentencing Guidelines in England and Wales: Exploring the New Format’ (2011) 9 Criminal Law Review 681.
[819]. Andrew Ashworth, ‘The Struggle for Supremacy in Sentencing’ in Andrew Ashworth and Julian V. Roberts (eds), Sentencing Guidelines: Exploring the English Model (2013) 27.
[820]. Sentencing Guidelines Council (UK), Guideline Judgments Case Compendium: Update 5 (2010).
[821]. Sentencing Council for England and Wales, Magistrates’ Court Sentencing Guidelines (Sentencing Council for England and Wales, 2016) <https://www.sentencingcouncil.org.uk/publications/item/magistrates-court-sentencing-guidelines/> at 31 March 2016.
[822]. Sentencing Council for England and Wales, Welcome to the Online Magistrates’ Court Sentencing Guidelines (Sentencing Council for England and Wales, 2016) <https://www.sentencingcouncil.org.uk/the-magistrates-court-sentencing-guidelines/> at 31 March 2016.
[823]. Coroners and Justice Act 2009 (UK) s 120(11).
[824]. Coroners and Justice Act 2009 (UK) s 120(3).
[825]. Coroners and Justice Act 2009 (UK) s 122.
[826]. See Sentencing Council for England and Wales, Publications: Definitive Guidelines (Sentencing Council for England and Wales, 2016) <https://www.sentencingcouncil.org.uk/publications/?cat=definitive-guideline&s> at 31 March 2016. Some offences, such as drug offences, only involve eight steps, as the dangerousness factor at step 5 is not relevant.
[827]. Coroners and Justice Act 2009 (UK) s 124.
[828]. Kate Fitz-Gibbon, ‘Minimum Sentencing for Murder in England and Wales: A Critical Examination 10 Years after the Criminal Justice Act 2003’ (2016) 18(1) Punishment & Society 47.
[829]. See Sentencing Council for England and Wales (2016), above n 826.
[830]. For example, the amendment to the offence of sexual penetration with a child under 10/12 in 2010: Crimes Legislation Amendment Act 2010 (Vic) s 3.
[831]. For example, the introduction of ‘course of conduct’ charges in 2015: Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic) pt 3.
[832]. Mike Hough and Amy Kirby, ‘The Role of Public Opinion in Formulating Sentencing Guidelines’ in Andrew Ashworth and Julian V. Roberts (eds), Sentencing Guidelines: Exploring the English Model (2013) 149–155.
[833]. Coroners and Justice Act 2009 (UK) s 127.
[834]. Sentencing Council for England and Wales, Final Resource Assessment: Sexual Offences (2013) 5.
[835]. Coroners and Justice Act 2009 (UK) s 128.
[836]. Following a review, the Sentencing Council has since decided to redirect its limited resources towards more targeted sentencing surveys; Sentencing Council for England and Wales, Crown Court Sentencing Survey (Sentencing Council for England and Wales, 2015) <https://www.sentencingcouncil.org.uk/analysis-and-research/crown-court-sentencing-survey/> at 31 March 2016.
[837]. Sentencing Council for England and Wales, Crown Court Sentencing Survey Annual Publication: January to December 2014 (2015).
[838]. Ibid 2–3.
[839]. Ibid 3.
[840]. Sentencing Council for England and Wales, Assessing the Impact of the Implementation of the Sentencing Council’s Assault Definitive Guideline (2015) 1.
[841]. Kelly Lock, Assault Definitive Guideline: Findings from Discussions with Sentencers and Practitioners: Research Conducted by Opinion Research Services for the Sentencing Council for England and Wales (2015) 8.
[842]. Ibid 9.
[843]. Ibid 44.
[844]. Mike Hough, Ben Bradford, Jonathan Jackson, and Julian V. Roberts, Attitudes to Sentencing and Trust in Justice: Exploring Trends from the Crime Survey for England and Wales, Ministry of Justice Analytical Series (2013) 31.
[845]. Krista Jansson, Public Confidence in the Criminal Justice System – Findings from the Crime Survey for England and Wales (2013/14), UK Ministry of Justice Analytical Summary (2015) 4.
[846]. Jose Pina-Sánchez and Robin Linacre, ‘Enhancing Consistency in Sentencing: Exploring the Effects of Guidelines in England and Wales’ (2014) 30 Journal of Quantitative Criminology 731, 742–744.
[847]. Julian V. Roberts, Mike Hough, Jonathan Jackson, and Monica M. Gerber, ‘Public Opinion towards the Lay Magistracy and the Sentencing Council Guidelines: The Effects of Information on Attitudes’ (2012) 52 British Journal of Criminology 1072, 1086.
[848]. Ibid.
[849]. Julian V. Roberts and Ben Bradford, ‘Sentence Reductions for a Guilty Plea in England and Wales: Exploring New Empirical Trends’ (2015) 12(2) Journal of Empirical Legal Studies 187, 197.
[850]. Julian V. Roberts and Mike Hough, ‘Empirical Sentencing Research: Options and Opportunities’ in Julian V. Roberts (ed.), Exploring Sentencing Practice in England and Wales (2015) 2–3.
[851]. Criminal Procedure (Scotland) Act 1995 (UK) ss 118(7), 189(7).
[852]. Criminal Procedure (Scotland) Act 1995 (UK) s 197.
[853]. Criminal Justice and Licensing (Scotland) Act 2010 (UK) s 3(3).
[854]. Alan Robertson, ‘Scottish Sentencing Council Launched’, Holyrood (Edinburgh) 19 October 2015 <https://www.holyrood.com/articles/news/scottish-sentencing-council-launched> at 31 March 2016.
[855]. Neil Hutton, ‘The Sentencing Commission for Scotland’ in Arie Freiberg and Karen Gelb (eds), Penal Populism, Sentencing Councils and Sentencing Policy (2008) 139.
[856]. Scottish Government, Sentencing Guidelines and a Scottish Sentencing Council: Consultation and Proposals (2008); Robertson (2015), above n 854.
[857]. Scottish Sentencing Council, ‘Council Established and Membership Announced’, Media Release (19 October 2015) <https://www.scottishsentencingcouncil.org.uk/news-media/establishment-and-membership/> at 31 March 2016.
[858]. Ibid.
[859]. See Warren Young, ‘Sentencing Reform in New Zealand: A Proposal to Establish a Sentencing Council’ in Arie Freiberg and Karen Gelb (eds), Penal Populism, Sentencing Councils and Sentencing Policy (2008); Warren Young and Andrea King, ‘The Origins and Evolution of Sentencing Guidelines: A Comparison of England and Wales and New Zealand’ in Andrew Ashworth and Julian V. Roberts (eds), Sentencing Guidelines: Exploring the English Model (2013).
[860]. Courts of New Zealand, Sentencing (Courts of New Zealand, 2015) <http://www.courtsofnz.govt.nz/about/system/role/sentencing/#appeal> at 31 March 2015. See, for example, R v AM [2010] NZCA 114; [2010] 2 NZLR 750.
[861]. Hyungkwan Park, ‘The Basic Features of the First Korean Sentencing Guidelines’ (2010) 22(4) Federal Sentencing Reporter 262, 262.
[862]. Ibid 269.
[863]. South African Law Commission, Sentencing (A New Sentencing Framework): Project 82 (2000) 43–50. See also Stephan Terblanche, ‘A Sentencing Council in South Africa’ in Arie Freiberg and Karen Gelb (eds), Penal Populism, Sentencing Councils and Sentencing Policy (2008).
[864]. Penal Law Bill (Amendment No. 92, Structuring Judicial Discretion in Sentencing) 5766-2006 (Israel). See Ruth Kannai, ‘Sentencing in Israel’ (2010) 22(4) Federal Sentencing Reporter 223, 224–225; Oren Gazal-Ayal and Ruth Kannai, ‘Determination of Starting Sentences in Israel – System and Application’ (2010) 22(4) Federal Sentencing Reporter 232, 232.
[865]. See [2.26]–[2.37].
[866]. Krasnostein (2015), above n 92, 295.
[867]. Submission 13 (Victoria Legal Aid).
[868]. Submission 13 (Victoria Legal Aid).
[869]. Submission 10 (Liberty Victoria).
[870]. Submission 14 (Director of Public Prosecutions).
[871]. Submission 1 (G. Silbert).
[872]. Submission 11 (Law Institute of Victoria).
[873]. Submission 14 (Director of Public Prosecutions).
[874]. Sentencing Act 1991 (Vic) s 108C(1).
[875]. Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 103 (Gaudron J).
[876]. Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381, 390; see also Palling v Corfield [1970] HCA 53; (1970) 123 CLR 52, 58.
[877]. Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381, 396 (citations omitted).
[878]. Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381, 390, 394.
[879]. Markarian v The Queen (2005) 228 CLR 357, 377 (McHugh J); Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, 132.
[880]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 613–614, 615.
[881]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 642.
[882]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 615 (Gaudron, Gummow, and Hayne JJ), 634 (Kirby J).
[883]. Hugh Donnelly, ‘Wong and Leung: the Kable Guy and Numerical Guidelines’ (2001) 8(11) Criminal Law News 1, 18.
[884]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584.
[885]. Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584.
[886]. Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 117 (McHugh J).
[887]. Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 117–118 (McHugh J).
[888]. Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 119 (McHugh J).
[889]. Kotzmann v Adult Parole Board of Victoria (2008) 29 VAR 391.
[890]. Kotzmann v Adult Parole Board of Victoria (2008) 29 VAR 391, 402.
[891]. Kotzmann v Adult Parole Board of Victoria (2008) 29 VAR 391, 403.
[892]. Kotzmann v Adult Parole Board of Victoria (2008) 29 VAR 391, 403.
[893]. Hansford v His Honour Judge Neesham [1995] VICSC 58; [1995] 2 VR 233, 236.
[894]. Director of Public Prosecutions v Aydin and Kirsch [2005] VSCA 86 (3 May 2005) [12].
[895]. Markarian v The Queen (2005) 228 CLR 357, 372.
[896]. Sentencing Task Force, Victoria (1989), above n 781, 193–200.
[897]. Sentencing Advisory Council, Maximum Penalties for Repeat Drink Driving: Report (2005).
[898]. Sentencing Advisory Council, Review of Maximum Penalties for Preparatory Offences: Report (2007).
[899]. Sentencing Advisory Council, Maximum Penalty for Negligently Causing Serious Injury: Report (2007).
[900]. Sentencing Advisory Council, Breaching Intervention Orders: Report (2008).
[901]. Sentencing Advisory Council, Driving While Disqualified or Suspended: Report (2009).
[902]. Sentencing Advisory Council, Maximum Penalties for Sexual Penetration with a Child under 16: Report (2009).
[903]. Sentencing Advisory Council, Maximum Penalties: Principles and Purposes: Preliminary Issues Paper (2010) 7. The systematic review of maximum penalties in the Crimes Act 1958 (Vic) was never completed due to a change of government. Following the election of the Liberal Nationals Coalition Government in November 2010, the Council received a letter from the Attorney-General in April 2011 requesting advice on two new projects as part of major sentencing reforms being undertaken by the government. Due to this new work and a delay with preparation of the Crimes Bill, the Council’s work on the Maximum Penalties for Crimes Bill Offences project was placed on hold.
[904]. Freiberg (2002), above n 98.
[905]. Sentencing Advisory Council (2010), above n 903, 7.
[906]. Hansford v His Honour Judge Neesham [1995] VICSC 58; [1995] 2 VR 233, 236–7; R v Duncan [2007] VSCA 137; (2007) 172 A Crim R 111. See also discussion in Freiberg (2014), above n 23, 278–279.
[907]. R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391.
[908]. R v Slattery (1996) 90 A Crim R 519. See Freiberg (2014), above n 23, 270.
[909]. Sentencing Act 1991 (Vic) s 114.
[910]. Freiberg (2014), above n 23, 269–271.
[911]. R v Grossi [2008] VSCA 51; (2008) 23 VR 500, 512.
[912]. Ashdown v The Queen
[2011] VSCA 408 ; (2011) 37 VR 341, 356 (Maxwell P).
[913]. Ashdown v The Queen
[2011] VSCA 408 ; (2011) 37 VR 341, 376 (Ashley JA) (citation omitted).
[914]. Submission 7 (Victorian Women’s Trust).
[915]. Submission 1 (G. Silbert).
[916]. Submission 9 (C. Politi); Submission 3 (C. Murphy).
[917]. Submission 14 (Director of Public Prosecutions).
[918]. Submission 13 (Victoria Legal Aid).
[919]. Submission 2 (Anonymous).
[920]. Submission 11 (Law Institute of Victoria).
[921]. Submission 14 (Director of Public Prosecutions).
[922]. Submission 14 (Director of Public Prosecutions).
[923]. Attorney-General (Victoria), New Directions for the Victorian Justice System 2004–2014: Attorney-General’s Justice Statement (2004).
[924]. See Sentencing Task Force, Victoria (1989), above n 781.
[925]. See Sentencing Act 1995 (WA) ss 9D–9F; Criminal Code Act Compilation Act 1913 (WA) ss 297(5)–(8), 318(2)–(5), 401(4)–(6).
[926]. Sentencing Act 1995 (NT) s 78F.
[927]. Crimes Act 1900 (NSW) ss 19B, 25B.
[928]. See Penalties and Sentences Act 1992 (Qld) s 161E; Criminal Code Act 1899 (Qld) sch 1 (‘Criminal Code’).
[929]. Criminal Code Act 1899 (Qld) sch 1 (‘Criminal Code’) s 305.
[930]. Migration Act 1958 (Cth) s 236B.
[931]. Criminal Law (Sentencing) Act 1988 (SA) s 32A.
[932]. Sentencing Act 1997 (Tas) s 16A(1).
[933]. Sentencing Act 1995 (NT) pt 3 div 6A sub-div 2.
[934]. Crimes Act 1958 (Vic) ss 15A–15B.
[935]. Sentencing Act 1991 (Vic) ss 9A–9C.
[936]. Sentencing Act 1991 (Vic) s 9B(2).
[937]. Sentencing Act 1991 (Vic) ss 10, 10A.
[938]. See Sentencing Act 1991 (Vic) s 10AA.
[939]. See Crimes Act 1958 (Vic) ss 15A, 15B, 16, 17.
[940]. Sentencing Act 1991 (Vic) s 10AA(2).
[941]. Crimes Legislation Amendment Bill 2016 (Vic).
[942]. See, for example, R v Nafi (Unreported, Supreme Court of the Northern Territory, Kelly J, 19 May 2011).
[943]. An example being the disproportionate impact of the (since repealed) mandatory sentencing laws for property offences on Indigenous people in the Northern Territory. For further discussion see Australian Human Rights Commission, ‘Laws Mandating Minimum Terms of Imprisonment (‘Mandatory Sentencing’) and Indigenous People, in Australian Human Rights Commission (ed.) Social Justice Report 2001 (2001) 101.
[944]. For example, in New South Wales, the offence of ‘assault causing death when intoxicated’ carries a mandatory minimum sentence of not less than 8 years, yet where the offence of assault causing death is committed in the absence of intoxication, the minimum sentence does not apply: Crimes Act 1900 (NSW) ss 25A–25B.
[945]. Sentencing Advisory Council, Mandatory Sentencing: Research Paper (2008) 21.
[946]. See, for example, Law Council of Australia, Mandatory Sentencing: Policy Discussion Paper (2014); Law Institute of Victoria, Submission to Sentencing Advisory Council, Statutory Minimum Sentences for Gross Violence Offences (2011).
[947]. Submission 11 (Law Institute of Victoria) (citation omitted).
[948]. Submission 11 (Law Institute of Victoria).
[949]. Submission 4 (Youthlaw).
[950]. Submission 10 (Liberty Victoria).
[951]. Submission 13 (Victoria Legal Aid).
[952]. Submission 13 (Victoria Legal Aid).
[953]. Submission 3 (C. Murphy).
[954]. Submission 9 (C. Politi).
[955]. Submission 1 (G. Silbert).
[956]. Submission 5 (Whitehorse City Council); Submission 16 (Local Government Professionals Inc.).
[957]. Submission 15 (Victims of Crime Commissioner).
[958]. Sentencing Advisory Council, Sentencing Matters: Mandatory Sentencing (2008) 1.
[959]. Sentencing Advisory Council (2011), above n 946, 2 (citation omitted).
[960]. See Sentencing Amendment Bill 2000 (WA); Western Australia Legislative Council, Report of the Standing Committee on Legislation in Relation to the Sentencing Matrix Bill 1999, Report 53 (2011).
[961]. See United States Sentencing Commission, Guidelines Manual (United States Sentencing Commission, 2015) <http://www.ussc.gov/guidelines-manual/2015/2015-ussc-guidelines-manual> at 5 April 2016.
[962]. See United States v Booker, [2005] USSC 593; 543 US 220 (2005); Gall v United States, 552 US 38 (2007).
[963]. Regina Stone-Harris, ‘How to Vary from the Federal Sentencing Guidelines without Being Reversed’ (2007) 19(3) Federal Sentencing Reporter 183.
[964]. See National Center for State Courts, State Sentencing Guidelines: Profiles and Continuum (2008).
[965]. Minnesota Sentencing Guidelines Commission, About the Guidelines (Minnesota Sentencing Guidelines Commission, 2015) <http://mn.gov/sentencing-guidelines/guidelines/about/> at 5 April 2016.
[966]. Minnesota Sentencing Guidelines Commission, Minnesota Sentencing Guidelines and Commentary (2015) 39.
[967]. Robina Institute of Criminal Law and Criminal Justice, Jurisdiction Profile: Oregon (2015) 3.
[968]. Washington State Caseload Forecast Council, 2015 Washington State Adult Sentencing Guidelines Manual (2015) 3.
[969]. See, for example, Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006) 537; Kate Stith, ‘The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion’ (2008) 117(7) Yale Law Journal 1420, 1424.
[970]. See, for example, Australian Law Reform Commission (2006), above n 969, 538; Freiberg (2002), above n 98, 201–202.
[971]. Freiberg (2002), above n 98, 202.
[972]. United States v Booker, [2005] USSC 593; 543 US 220 (2005).
[973]. Paul J Hofer, Kevin R Blackwell and R Barry Ruback, ‘Effect of the Federal Sentencing Guidelines on Interjudge Sentencing Disparity’ (1999) 90(1) Journal of Criminal Law & Criminology 239, 241.
[974]. Jawjeong Wu and Cassia Spohn, ‘Interdistrict Disparity in Sentencing in Three U.S. District Courts’ (2010) 56(2) Crime & Delinquency 290; Caleb Mason and David Bjerk, ‘Inter-Judge Sentencing Disparity on the Federal Bench: An Examination of Drug Smuggling Cases in the Southern District of California’ (2013) 25(3) Federal Sentencing Reporter 190.
[975]. Freiberg (2002), above n 98, 202.
[976]. Australian Law Reform Commission (2006), above n 969, 538.
[977]. Submission 1 (G. Silbert); Submission 2 (Anonymous); Submission 10 (Liberty Victoria); Submission 11 (Law Institute of Victoria); Submission 13 (Victoria Legal Aid); Submission 14 (Director of Public Prosecutions).
[978]. Submission 13 (Victoria Legal Aid).
[979]. Victorian Labor, ‘Juries to Have a Say in Sentencing under Labor’, Media Release (4 February 2013) <http://www.viclabor.com.au/media-releases/juries-to-have-a-say-in-sentencing-under-labor> at 5 April 2016.
[980]. The term ‘serious indictable offence’ is not defined in the Sentencing Act 1991 (Vic). It is defined in section 325(6) of the Crimes Act 1958 (Vic) in the context of provisions for offenders who are accessories to offences. In that context, it means an indictable offence that is punishable, on first conviction, by life imprisonment or by a term of five years’ imprisonment or more. The Criminal Procedure Act 2009 (Vic) also defines the terms by reference to section 325(6) of the Crimes Act 1958 (Vic).
[981]. Freiberg (2014), above n 23, 43–45.
[982]. Whittaker v The King [1928] HCA 28; (1928) 41 CLR 230, 240 (Isaacs J).
[983]. R v Harris [1961] VicRp 36; [1961] VR 236.
[984]. New South Wales Law Reform Commission, Role of Juries in Sentencing: Report 118 (2007) 28.
[985]. Kingswell v The Queen (1985) 159 CLR 264; Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1; Director of Public Prosecutions v Nasralla [1967] 2 AC 238.
[986]. New South Wales Law Reform Commission (2007), above n 984.
[987]. New South Wales Law Reform Commission (2007), above n 984, 37.
[988]. Ibid 42.
[989]. Warner et al. (2011), above n 15, 5.
[990]. Ibid.
[991]. Jenia Iontcheva, ‘Jury Sentencing and Democratic Practice’ (2003) 89 Virginia Law Review 311.
[992]. See New South Wales Law Reform Commission (2007), above n 984, 47–48 citing concerns raised in written submissions and concerns raised by a victim support group during the course of a television broadcast.
[993]. R v Verdins [2007] VSCA 102; (2007) 16 VR 269. In this case, the Victorian Court of Appeal provided guidance on the relevance of mental impairment to sentencing.
[994]. New South Wales Law Reform Commission (2007), above n 984, 49–50.
[995]. Submission 1 (G. Silbert).
[996]. Kate Warner and Julia Davis, ‘Involving Juries in Sentencing: Insights from the Tasmanian Jury Study’ (2013) 37 Criminal Law Journal 246, 254.
[997]. There is evidence that this has occurred in the United States. See Nancy J King and Rosevelt L Noble, ‘Felony Jury Sentencing In Practice: A Three State Study’ (2004) 57(3) Vanderbilt Law Review 885, 939.
[998]. Warner and Davis (2013), above n 996, 255.
[999]. Ibid.
[1000]. Ibid.
[1001]. Ibid.
[1002]. Ibid 253.
[1003]. Ibid 246–247.
[1004]. Submission 1 (G. Silbert); Submission 2 (Anonymous); Submission 10 (Liberty Victoria); Submission 11 (Law Institute of Victoria); Submission 13 (Victoria Legal Aid); Submission 14 (Director of Public Prosecutions).
[1005]. Submission 2 (Anonymous).
[1006]. Submission 10 (Liberty Victoria).
[1007]. Submission 13 (Victoria Legal Aid).
[1008]. New South Wales Law Reform Commission (2007), above n 984, 61.
[1009]. Sentencing Advisory Council, Myths and Misconceptions: Public Opinion versus Public Judgment about Sentencing (2006) 40.
[1010]. Sentencing Act 1991 (Vic) s 108C(1)(d).
[1011]. Warner et al. (under review for publication), above n 18.
[1012]. See University of Tasmania, Faculty of Law, National Jury Sentencing Research Project (the National Jury Project) (Faculty of Law National Jury Project, 2015) <http://www.utas.edu.au/law/research/jury-study/national-jury-project> at 23 March 2016.
[1013]. See Supreme Court of Victoria, Judgments and Sentences (Supreme Court of Victoria, 2016) <http://www.supremecourt.vic.gov.au/home/law+and+practice/judgments+and+sentences/> at 17 March 2016.
[1014]. See Australasian Legal Information Institute, AustLII (Australasian Legal Information Institute, A Joint Facility of UTS and UNSW Faculties of Law, 2010) <http://www.austlii.edu.au/> at 17 March 2016.
[1015]. See Supreme Court of Victoria, Audio and Video Webcasts (Supreme Court of Victoria, 2016) <http://www.supremecourt.vic.gov.au/home/contact+us/media+centre/audio+and+video+webcasts/> at 17 March 2016.
[1016]. See County Court of Victoria, Accessing Court Documents (County Court of Victoria, 2016) <https://www.countycourt.vic.gov.au/accessing-court-documents> at 17 March 2016.
[1017]. See County Court of Victoria, 2013–14 Annual Report (2015) 10.
[1018]. Ibid.
[1019]. Further, although rare, a judge may deliver sentencing remarks ex tempore, that is, at the conclusion of the plea, and without preparation of formal written remarks.
[1020]. Judicial Proceedings Reports Act 1958 (Vic) s 4(1A).
[1021]. Sentencing Advisory Council (2015), above n 114, 1.
[1022]. Director of Public Prosecutions (Vic) v Oates [2007] VSCA 59; (2007) 47 MVR 483, 486–487.
[1023]. Victoria, Royal Commission into Family Violence (2016), above n 357, vol. III, 233.
[1024]. For example, in the month of January 2016, Twitter had approximately 2.8 million unique visitors in Australia as reported by Social Media News Australia: Media Access Australia (MAA), Twitter (Media Access Australia, 2012) <http://www.mediaaccess.org.au/web/social-media/twitter> at 16 March 2016.
[1025]. Submission 13 (Victoria Legal Aid).
[1026]. Submission 13 (Victoria Legal Aid), citing New South Wales Law Reform Commission, Sentencing: Report 79 (1996) 14–15.
[1027]. Submission 13 (Victoria Legal Aid).
[1028]. See, for example, R v Koumis [2008] VSCA 84; (2008) 18 VR 434, 439, where the court said: ‘[t]he requirements of the Sentencing Act 1991 and the range and complexity of sentencing principles make the role of sentencing a very demanding one’.
[1029]. Submission 11 (Law Institute of Victoria).
[1030]. Submission 13 (Victoria Legal Aid).
[1031]. Submission 14 (Director of Public Prosecutions).
[1032]. Submission 14 (Director of Public Prosecutions).
[1033]. New South Wales Law Reform Commission (2007), above n 984, 58, citing Julian V. Roberts, Loretta J. Stalans, David Indermaur, and Mike Hough, Penal Populism and Public Opinion: Lessons from Five Countries (2003); David Indermaur, ‘Public Perceptions of Sentencing in Perth, Western Australia’ (1987) 20 Australian and New Zealand Journal of Criminology 163.
[1034]. Warner et al. (2011), above n 15.
[1035]. Warner et al. (under review for publication), above n 18.
[1036]. See, for example, Sentencing Advisory Council (2006), above n 1009; Sentencing Advisory Council (2008), above n 15.
[1037]. The jurisdictions include the United States: Michael J. Hindelang, Public Opinion Regarding Crime: Criminal Justice and Related Topics (1975); and the United Kingdom: Andrew Ashworth and Mike Hough, ‘Sentencing and the Climate of Opinion’ (1996) Criminal Law Review 776. See also Michael Zander and Paul Henderson, The Royal Commission on Criminal Justice: The Crown Court Study, Research Study no. 19 (1993).
[1038]. Sentencing Act 1991 (Vic) s 108C(1).
[1039]. Submission 13 (Victoria Legal Aid) (citations omitted).
[1040]. There were no aggregate or mixed sentences imposed for murder in this period.
[1041]. There were no aggregate or mixed sentences imposed for manslaughter in this period.
[1042]. There were no aggregate or mixed sentences imposed for culpable driving causing death in this period.
[1043]. There were no aggregate or mixed sentences imposed for this offence in this period.
[1044]. There were no aggregate or mixed sentences imposed for this offence in this period.
[1045]. There were no aggregate or mixed sentences imposed for this offence in this period.
[1046]. The immediate custodial sentences imposed for sexual penetration with a child under 12 clustered at 4 years in length (the most common sentence length), and as a result the 3rd quartile of the lengths is equal to the median of 4 years.
[1047]. There were no aggregate or mixed sentences imposed for this offence in this period.
[1048]. There were no aggregate or mixed sentences imposed for this offence in this period.
[1049]. There were no aggregate sentences of imprisonment imposed in this period.
[1050]. There were no aggregate or mixed sentences imposed for this offence in the period.
[1051]. Only four charges of this offence were sentenced within the reference period; all have been examined.
[1052]. Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658.
[1053]. Pre-W16 (see Table A54) (pleaded to prior to Winch).
[1054]. Amending the first-instance sentence in the case of Trowsdale to account for the reduction in sentence by the Court of Appeal does not affect this median, as the substituted sentence of 33 months has no effect on the median.
[1055]. This figure is based on the term, regardless of whether that term is a CCO, a combined CCO and imprisonment term, a wholly or partially suspended sentence, a term of imprisonment required to be served immediately, or detention in a youth justice centre.
[1056]. Note, due to rounding, the total of these sentence types does not add up to 100%.
[1057]. During this period, the case of DPP v Spence was sentenced in the County Court, involving a sentence of 4 years imprisonment for a glassing offence that was charged as intentionally causing serious injury. This case has been excluded on the basis that, while an instance of glassing, the different maximum penalty for intentionally causing serious injury means the sentence is not comparable with sentences imposed for glassing that are charged as recklessly causing serious injury (being the relevant offence in Winch).
[1058]. Sentencing Advisory Council, Aggravated Burglary: Current Sentencing Practices (2011) 29.
[1059]. Hogarth v The Queen [2012] VSCA 302; (2012) 37 VR 658.
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