Sentencing Guidance Best Provided by the Courts

Media Release

Embargoed until 2:00 p.m. (AEST), Friday 10 June 2016

The Sentencing Advisory Council today released a comprehensive report containing recommendations for sentencing guidance in Victoria. The report, Sentencing Guidance in Victoria, forms the Council’s advice in response to terms of reference received from the Attorney-General on 24 November 2015. The Council’s recommendations are intended to promote consistency of approach to sentencing offenders, and promote public confidence in the criminal justice system.

Key Recommendations

The Council considers that baseline sentencing is incurably flawed and recommends its repeal. In its place, the Council recommends a suite of reforms to the guideline judgment scheme. This enhanced scheme is intended to facilitate greater use of guideline judgments, which can provide comprehensive guidance on the sentencing of all offences and offence categories, including offences sentenced in the higher courts or the Magistrates’ Court.

The Council recommends that numerical guidance on the appropriate level or range of sentences for an offence or offence category should be permitted within a guideline judgment. This would allow the Court of Appeal to provide guidance on what sentences would be adequate, not simply to declare that sentencing practices are inadequate.

The Council recommends that, in particular circumstances, the Attorney-General should have the power to apply for a guideline judgment, without the need for an appeal case. This power is intended to overcome the problem, for some offences, of sentencing judges being constrained by inadequate current sentencing practices and the Court of Appeal not having the opportunity to provide guidance on such practices, in the absence of a suitable appeal case.

Standard Sentence Scheme

The report also contains recommendations on a ‘standard sentence scheme’, although it is not the Council’s preferred option. Under the scheme, parliament fixes a ‘standard’ sentence that represents the sentence for a charge of an offence in the middle of the range of seriousness. This standard sentence would operate as a ‘guidepost’ to offence seriousness (in addition to the maximum penalty), and a court would be required to consider this new guidepost when sentencing. The Council considers that 40% of the maximum penalty would represent a ‘rule of thumb’ measure for determining the middle of the range of seriousness for any offence included in the standard sentence scheme. 

If a standard sentence scheme is adopted, the Council recommends that it should only apply to offences for which there is evidence of significant problems that can be addressed by this form of sentencing guidance, and that the scheme should be combined with an enhanced guideline judgment scheme. The sentencing of children, and sentencing in the Magistrates’ Court, should be excluded from the standard sentence scheme.

Approach to Identifying Problem Offences

In responding to the terms of reference, the Council has formed its views using an evidence-based approach. This evidence includes relevant qualitative research, quantitative analysis, and the commentary and feedback it has received in submissions and during consultations. The Council also drew on findings from its new report Sentencing of Offenders: Sexual Penetration with a Child under 12, also released today. The Council identified that the following offences have sentencing problems requiring sentencing guidance:

Offence Crimes Act 1958 (Vic) Standard sentence
Intentionally causing serious injury section 16 Not suitable
Recklessly causing serious injury section 17 Not suitable
Negligently causing serious injury section 24 Not suitable
Rape section 38 10 years
Incest with child/step-child section 44(1) 10 years
Incest with child/step-child (under 18) of de facto section 44(2) 10 years
Sexual penetration with a child under 12 section 45(2)(a) 10 years
Sexual penetration with a child 12–16 under care, supervision, or authority section 45(2)(b) 6 years
Sexual penetration with a child 12–16 section 45(2)(c) 4 years
Indecent act with a child under 16 section 47 4 years
Persistent sexual abuse of a child under 16 section 47A 10 years
Aggravated burglary section 77 Not suitable

Sentencing problems for all of these offences could be addressed through guidance in the form of a guideline judgment. Eight of these offences (shaded) were considered suitable for a standard sentence scheme.

The Council also identified three groups of offences (family violence, high-level fraud, and firearm-related offences) that need more research to determine whether any should be covered by a guidance scheme. The Council has concluded that there is currently insufficient evidence to warrant inclusion of a number of offences, including three baseline offences (murder, culpable driving causing death, and trafficking in a large commercial quantity of drugs), in a sentencing guidance scheme.

Other Recommendations

This report calls for a number of other reforms that will make the Victorian sentencing system more transparent. These include the online publication of all sentencing remarks, a review of the sentencing schemes under the Sentencing Act 1991 (Vic), and further research on public opinion on sentencing. The Council recommends against the introduction of jury sentencing on the basis of numerous and significant practical and procedural issues.

Comments Attributable to Council Chair Emeritus Professor Arie Freiberg

‘Development of the Council’s recommendations was guided by a comprehensive review of different sentencing guidance schemes, and analysis of the evidence demonstrating sentencing problems for particular offences.’

‘The Council’s preferred model of sentencing guidance — in the form of an enhanced guideline judgment scheme — will create an evolving, inclusive, evidence-based, and judge-led process that can respond to changing community attitudes and legislative reforms.’

‘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. The report therefore calls for a number of other reforms that will make the Victorian sentencing system more consistent, clear, and coherent.’

The reports – Sentencing Guidance in Victoria: Report and Sentencing of Offenders: Sexual Penetration with a Child under 12 – are available on the Council’s website.