Victorian Court of Appeal Says Inadequate Sentencing Practices Should Change Immediately, Not Incrementally

2 May 2018

On 11 April 2018, the Court of Appeal confirmed that sentencing for offences with inadequate sentencing practices can increase immediately.

Over the years, the Victorian Court of Appeal has called for increases in sentencing practices for a number of different offences. For example, the court has held that past sentences for glassing offences, certain driving offences and aggravated burglaries were too low, and it directed that sentences for those offences should increase incrementally.

Following a recent High Court decision, however, this incremental approach no longer applies in Victoria. In that decision, the High Court determined that Victorian courts had been giving too much weight to current sentencing practices, even when they were inappropriately low. ‘The only expectation that an offender can have’, the High Court said, is that they will receive ‘a just sentence according to law’.

On 11 April 2018, the Court of Appeal confirmed that the High Court’s decision has effectively abolished the practice of incremental increases in Victoria. In Carter (A Pseudonym) v The Queen, the Court of Appeal held that ‘[t]he incremental increase cases in Victoria should be taken to have been overruled’.

As a result, while Victorian courts must still take current sentencing practices into account when determining an appropriate sentence, they are no longer bound to adhere to those practices where they would result in a sentence that would be demonstrably, and manifestly, inadequate. Any adjustment from inadequate current sentencing practices must be made immediately, not incrementally.