In a majority decision, the Court of Appeal has today dismissed an appeal on the basis that the baseline provisions are ‘incapable of being given any practical operation’.
The appeal was lodged by the Director of Public Prosecutions after the first sentence under the baseline scheme was handed down.
Introduced by the Sentencing Amendment (Baseline Sentencing) Act 2014 (Vic), the baseline sentencing provisions require a court to sentence an offender charged with a baseline offence in a manner compatible with parliament’s intention that the baseline sentence is the median sentence for sentences imposed for that offence.
In the case of DPP v Walters (a pseudonym) [2015] VSCA 303, President Maxwell, along with Justices Redlich, Tate, and Priest, held that parliament did not provide any mechanism to achieve the intended future median, represented by the baseline sentence.
The majority held that this ‘defect in the legislation is incurable’ because to remedy the defect the court would be required to ‘legislate, not interpret’ the provisions, and this would exceed the judicial function of the court.
Justice Whelan delivered a dissenting judgment, stating that his Honour was ‘unable to accept the submission that the legislation is meaningless or is incapable of practical application’. His Honour considered that a baseline sentence formed ‘a new guidepost or yardstick’ that ‘guides the sentencing discretion’.
