Standard Sentences Confirmed as ‘valid and capable of practical operation’

29 November 2018

Earlier today the Supreme Court of Victoria in the case of R v Brown imposed the first sentence under Victoria’s new standard sentence scheme.

The Standard Sentence Scheme

On 1 February 2018, standard sentences came into effect in Victoria.

A standard sentence is a new legislative guidepost that courts must take into account when sentencing certain serious offences, such as murder (the offence in today’s case), culpable driving causing death and rape.

When a court sentences an offender for a standard sentence offence, it must take into account the sentence that parliament has specified as representing the ‘middle of the range of objective seriousness’ for that type of offence.

For most standard sentence offences (other than offences with a maximum penalty of life imprisonment), the standard sentence is set at 40% of the maximum penalty. For example, the standard sentence for culpable driving causing death is eight years (40% of the 20-year maximum penalty).

First Standard Sentence Judgment

Today, Justice Champion of the Supreme Court of Victoria sentenced the first offender to be sentenced under the standard sentence scheme, as the offending occurred in March 2018.

To assist the court in deciding how to interpret and apply the standard sentence, the Supreme Court invited Victoria Legal Aid and the Criminal Bar Association to appear in the matter as amicus curiae*, and to make written and oral submissions.

Operation of the Standard Sentence Scheme

Before discussing the sentence imposed on the offender, and the reasons for that sentence, Justice Champion outlined six key conclusions about the standard sentence scheme:

  1. The standard sentence scheme is valid and capable of practical operation.
  2. The standard sentence scheme preserves the operation of instinctive synthesis.
  3. The standard sentence for an offence is a legislative guidepost.
  4. The standard sentence for an offence is not to take a predominant role in the sentencing exercise.
  5. The standard sentence is just one factor for the court to take into account.
  6. In following the legislative requirement to take current sentencing practices into account when sentencing a standard sentence offence, the court may only have regard to sentences imposed under the standard sentence scheme.

For the purposes of sentencing the offender in the present case, Justice Champion noted that the maximum penalty for murder is life imprisonment, and the standard sentence for murder is 25 years’ imprisonment.

In determining the objective seriousness of the offence in this case, His Honour identified a number of relevant factors that related to the commission of the offence, such as:

  • the unprovoked nature of the attack
  • the use of weapons
  • the offender’s post-offence conduct
  • the vulnerability of the victim.

Justice Champion noted that there were very few considerations that would reduce the objective seriousness of the offending in this case. His Honour classified the offending as a ‘very serious example’ of murder, which fell above the middle of the range of objective seriousness. His Honour further assessed the offender’s moral culpability as high, while also taking into account as mitigating factors both the offender’s remorse and his early plea of guilty.

Justice Champion indicated that His Honour did not have regard to any sentences imposed for murder prior to the introduction of the standard sentence scheme, though he did take into account relevant principles established in prior cases. His Honour also noted that this was the first standard sentence imposed for murder, and as such concluded that there were ‘no previous sentences to which I may have regard’.

Finally, after discussing a number of other factors relevant to sentencing in this case – including the applicability of the various purposes of sentencing as required by section 5(1) of the Sentencing Act 1991 (Vic) – Justice Champion emphasised that in reaching his decision about the appropriate sentence in this case, he ‘used the maximum penalty and standard sentence as guideposts’.

The offender was sentenced to 30 years’ imprisonment, and will not be eligible for parole until he has served at least 24 years in prison. Noting that the standard sentence scheme requires a court to ‘explain how the sentence imposed by it relates to’ the standard sentence for that offence, Justice Champion stated that ‘the sentence I impose is higher than the standard sentence for murder’.

Had the offender not pleaded guilty, Justice Champion indicated that he would have sentenced the offender to 35 years’ imprisonment, and that the offender would not have been eligible for parole until he had served at least 28 years’ in prison.

You can read the full judgment on AustLII.

*Amicus curiae: a person, not a party to the proceedings, who volunteers or is invited by the court to give advice on some matter pending before it.