The High Court of Australia’s decision in the case of Dalgliesh handed down on Wednesday 11 October affirmed the view, held by the Victorian Court of Appeal, the Chief Crown Prosecutor, the Director of Public Prosecutions (and probably most of the Victorian community) that current sentencing practices for incest are no longer appropriate, and they should be increased. However, there was substantial disagreement about how to make this happen.
The case highlighted two competing principles in sentencing law. On the one hand, it is a fundamental principle of law in Australia that similar cases should be treated in a similar way. When sentencing, courts in Victoria are legally required to take into account the sorts of sentences that other people who committed similar crimes have previously received. This promotes the principles of fairness and equal justice, and also means that offenders know the type and length of sentence they might receive if they plead guilty.
On the other hand, is it important that an appropriate sentence be imposed in an individual case and accordingly current sentencing practices, if considered to be inadequate, should not be the dominant factor in sentencing. In Victoria, courts are required to take into account a number of factors in sentencing including the maximum penalty, the nature and gravity of the offence, the impact of the crime on the victim and many others. Current sentencing practices are just one of those factors.
The question the High Court grappled with in this case was whether, if a person pleads guilty to an offence on the expectation that they would receive a sentence similar to what others have previously received, they can then receive a sentence higher than that.
The High Court case followed an appeal by the Director of Public Prosecutions against a decision by the Victorian Court of Appeal in June last year against what the Director considered was a manifestly inadequate sentence for a number of sexual offences, including incest. In simple terms, the Court of Appeal dealt with two separate questions.
First, are current sentencing practices for incest too low? The court answered this question in the affirmative, saying that ‘current sentencing for incest reveals error in principle’ which does not reflect ‘a proportionate response to the objective gravity of the offence, nor … the moral culpability of the offender’. As a result of that decision, courts in Victoria from that point on were required to increase sentences for incest. In fact, there is evidence that the Court of Appeal’s decision in this case has already had the effect of increasing sentencing levels.
Second, given that incest sentences are too low, should Mr Dalgliesh’s sentence be increased? The Court of Appeal answered this question in the negative. Although the court considered the sentence imposed to be ‘extremely lenient’, they also said that they were constrained by current sentencing practices. In particular, they said that it would be unfair to impose a higher sentence on a person who pleaded guilty on the understanding that they would receive a sentence consistent with current practices.
This is the point on which the High Court disagreed. The High Court said that it is more important that the punishment aligns with community expectations than it is to have the sentence accord with the offender’s expectations. The High Court said that sentences in similar cases are ‘only one factor’ to take into account, not ‘the controlling factor’.
Changing sentencing practices is a difficult process. The High Court itself did not impose what it considered to be an appropriate sentence, but sent the case back to the Court of Appeal to do so. But courts of appeal are themselves reluctant to set general standards. In Victoria, the Court of Appeal has the power to hand down a guideline sentence which can provide guidance to judges about sentencing standards, but it has done so only once over the past 13 years.
The Victorian Parliament has recently passed legislation that will require courts to have regard to ‘standard sentences’, which for many sexual offences are set at around 10 years, nearly three times higher than the sentence imposed on the offender in this case.
Mandatory sentencing, or mandatory minimum sentences, are another way to change sentencing practices, but it is generally agreed that these forms of sentence are too inflexible and can be unjust in an individual case. Mandatory sentencing treats unlike cases alike, an undesirable outcome.
Sentencing is a complex exercise. This case illustrates that even when everyone agrees on an outcome, the path to that result can be strewn with obstacles.
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By Emeritus Professor Arie Freiberg AM, Chair of the Sentencing Advisory Council of Victoria.
