Baseline Sentencing

Baseline sentences were specified prison sentences that the Victorian parliament intended as the median sentence for seven nominated offences. Victorian courts were required to sentence a charge of a baseline offence in accordance with that intention if the offence was committed on or after 2 November 2014.

Median

When all sentences imposed for an offence over a given period are ranked from lowest to highest, the median sentence is the midpoint or middle value – so that half of all sentences imposed are lower than the median and half are higher.

Each baseline sentence set by parliament was significantly higher than the current median for each baseline offence (as at November 2014). In setting the new baseline sentences, parliament made clear its intention to increase the overall severity of sentences for the seven offences.

The scheme was intended to allow courts the discretion to impose a sentence higher or lower than the baseline sentence for a charge that was either more serious or less serious than the charge that received the median sentence.

The Baseline Offences

The seven baseline offences and their corresponding baseline median prison sentences were:

  • murder – 25 years
  • trafficking in a large commercial quantity of a drug of dependence – 14 years
  • persistent sexual abuse of a child under 16 – 10 years
  • incest with a child, step-child, or lineal descendant (under 18) – 10 years
  • incest with the child, step-child, or lineal descendant (under 18) of a de facto spouse – 10 years
  • sexual penetration with a child under 12 – 10 years
  • culpable driving causing death – 9 years.

A baseline median of 30 years was also set for the murder of an emergency worker (such as police, fire fighters, and emergency medical personnel) while they were on duty.

Minimum Non-Parole Periods for Baseline Offences

Baseline sentencing laws set minimum non-parole periods for the seven baseline offences. When sentencing a case that involved one or more baseline offences and a term of imprisonment was imposed, the court was required to fix a non-parole period of:

  • 30 years if the total effective sentence (TES) was a term of life imprisonment
  • 70% of the TES  if the TES was 20 years or more
  • 60% of the TES  if the TES was less than 20 years.

DPP v Walters

In the case of DPP v Walters [2015] VSCA 303, the Court of Appeal held that the baseline provisions in the Sentencing Act 1991 (Vic) were ‘incapable of being given any practical operation’. As a result, the baseline sentencing provisions became unenforceable.

Sentencing Guidance

Following the Court of Appeal’s ruling in DPP v Walters, the Council was asked to provide advice to the Attorney-General on how sentencing guidance might be provided in Victoria to promote consistency in the courts’ approach to sentencing and promote community confidence in the criminal justice system.

In its 2016 report, Sentencing Guidance in Victoria, the Council recommended the repeal of the baseline sentencing provisions from the Sentencing Act 1991 (Vic) in their entirety.

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