Constitutional Advice Received on Validity of Sentencing Guidelines in Victoria

16 November 2017

On 10 November, the Sentencing Advisory Council released an issues paper and an online survey seeking stakeholder and community views on the creation of a sentencing guidelines council in Victoria.

The issues paper identified potential constitutional limitations of a sentencing guidelines council in Victoria. It noted that the Sentencing Advisory Council would seek expert constitutional advice on these limitations.

We have now received this advice. In summary, it confirms that a sentencing guidelines council, with the essential features identified in the issues paper, can be constitutionally valid, as long as risks are managed by:

  • preserving the independence of the sentencing guidelines council from parliament and the executive
  • retaining judicial discretion to impose an appropriate sentence that takes into account all the relevant circumstances of the individual case and
  • ensuring processes do not intrude upon the independence, or the essential characteristics, of the courts.

The constitutional advice is now available with the issues paper. We encourage stakeholders to consider the issues paper in light of this advice.

We welcome written submissions in answer to the questions posed, and issues raised in the issues paper. Alternatively, you may wish to complete the online survey.

The deadline for written submissions and the online survey is Friday 22 December 2017.