First Baseline Sentence: Sentencing and Summary of Key Points

On 30 July 2015, the Supreme Court of Victoria handed down the first baseline sentence in R v IRT [2015] VSC 372.

Sentencing

The offender was sentenced after pleading guilty to two charges of indecent act with a child under 16 (contrary to section 47(1) of the Crimes Act 1958 (Vic)), and four charges of incest (contrary to section 44(1) of the Crimes Act 1958 (Vic)).

The two charges of indecent act with a child under 16 were representative charges, relating to three instances of offending and four instances of offending, respectively.

The four incest charges were not representative charges; these charges related to three acts of digital penetration (charges 3, 4, and 6) and one act of penile penetration (charge 5).

Charge 6 was committed after 2 November 2014 (when the baseline scheme commenced), and the victim was aged under 18, and so this charge fell to be sentenced under the baseline sentencing scheme.

The following sentencing orders were imposed:

Charge Offence Maximum Baseline Sentence Cumulation
1 Indecent act with a child under 16
(representative count: three instances)
10 yrs n.a. 2 yrs 4 mths
2 Indecent act with a child under 16
(representative count: four instances)
10 yrs n.a. 2 yrs 4 mths
3 Incest (digital) 25 yrs n.a. 4 yrs 4 mths
4 Incest (digital) 25 yrs n.a. 4 yrs 4 mths
5 Incest (penile) 25 yrs n.a. 5 yrs Base
6 Incest (digital) – baseline charge 25 yrs 10 yrs 4 yrs 6 mths 4 mths

Total effective sentence: 6 years and 8 months

Non-parole period: 4 years

Section 6AAA: 8 years with a non-parole period of 4 years and 10 months (the sentence that would have been imposed but for the offender’s guilty plea)

Other relevant orders: forensic sample order. Life sexual offender reporting requirements. Serious sexual offender for counts 3, 4, 5, and 6, but no disproportionate sentence proposed by the Director of Public Prosecutions or imposed. Pre-sentence detention declared: 18 days.

Summary of Key Points from the Baseline Ruling (Appendix 1 to the Judgment)

In addition to the reasons for sentence, the judgment contains ‘Appendix 1 – Baseline Sentencing’, which describes in some detail how the baseline provisions have been applied, and whether and in what manner they have affected the sentence imposed on the offender.

In this summary of Appendix 1, the numbers in square brackets refer to paragraph numbers in the judgment. Emphasis in bold has been added.

Provisions

‘[75] This is a highly unusual set of provisions … these provisions begin with the Parliament’s wish to achieve a statistical outcome which the courts are directed to give effect to as they sentence individuals for particular offences including, in this case, incest. It is an outcome which is dependent on, or at least influenced by, the actions of others involved in unrelated offending, not simply by way of comparison of facts and circumstances but in forming a cohort which will determine what sorts of facts and circumstances fall at the midpoint.’

Parliament’s Intention: Median

The provisions provide no ‘temporal indication’ of the period over which a median is to be calculated, other than that the median calculation is based on those sentences determined under baseline prospectively. Expecting the court to maintain the baseline median at any given point in time (including from the start, which would require the first two sentences to receive at least the baseline sentence, for example) would lead to ‘disturbing results’.

As a result, the median intended by parliament must refer to ‘all sentences to which the provisions apply, being an infinite set containing known sentences (of which this will be the first) and future, as yet undetermined, sentences’ [81].

‘[85] … I therefore proceed on the basis that Parliament’s intention is that the baseline sentence is to form, after a period of time, the median sentence for the cohort of sentences to which the baseline sentencing provisions apply and will apply, meaning that half of those sentences will be at or above the baseline and half will be at or below the baseline figure.’

Task of the Sentencing Judge

‘[88] … The baseline sentencing provisions direct the courts to sentence in such a manner as to create a distribution of sentences which results in a particular median. The only imperative is for half of those sentences to be at or above the baseline and for half to be at or below the baseline sentence. In reaching its sentence the court will be drawing a conclusion about whether the case before it should fall at, above or below the median.’

‘[97] The fundamental task undertaken by the court is to impose a sentence according to law, which now includes a requirement to consider whether the instant case falls at[,] above or below the future median. This will be informed, to an extent, by the historical median, but may also take into account any other factors shown to have a bearing.’

These ‘other factors’ are not described in the judgment.

Relevance of the Historic Median

‘[109] … I do not accept that the Court is called upon to make a determination about whether the instant case falls at, above or below the historic median.’

‘[95] … historical sentencing information provides the only available empirical basis from which to commence an analysis of a future cohort of sentences. It provides the best available information from which to form a view about what future patterns of offending will look like.’

Two-Stage Sentencing or Instinctive Synthesis?

The court said that following the process described in the note at the end of section 5A(3) ‘would suggest that the task of the judge is to form a view about what is a case for which the median sentence would be appropriate before proceeding to make a comparison with the instant case and deciding a sentence by degrees of differentiation from the median.’ [114]

The court concluded that ‘a plain reading of the note suggests a two-stage sentencing process’ [115].

‘[130] In the context of the baseline sentencing provisions the process of instinctive synthesis may be said to remain in the sense that the Court must consider all relevant factors to determine where the instant case should sit in the overall sentencing distribution. The baseline sentence and the maximum penalty will guide the court as to the numerical value that is to be ascribed as a result of that conclusion. However there are other sentencing factors which bear upon the numerical value to be ascribed and not just the relativity of the sentence to other sentences, including current sentencing practice, parsimony and proportionality. These are to be disregarded to the extent that their consideration would be inconsistent with the intention of the Parliament. As I noted earlier in relation to the note following s 5A(3), it is arguable that this necessarily involves a form of two stage sentencing,at least in cases falling at or above the median. For the reasons which follow a determination of whether a sentence at, above or below the median is required will determine the extent to which consideration of other factors is inconsistent with Parliament’s intention and therefore whether they must be disregarded. That is not a weighting exercise in a single stage process and is therefore difficult to reconcile with descriptions of the process of instinctive synthesis.’

Is the Determination of Whether a Case Falls At, Above, or Below the Median a Question of Sentencing Fact?

No: ‘[135] A conclusion that a case is to fall at or above the median will have significant consequences for an offender, it is not one to be reached lightly, but it is not one to which the principles in Storey apply because it is not a finding of sentencing fact.’

Scaling of Sentences

Sentences below (and, by the same reasoning, above) the future median need not be scaled.

‘[141] It must be accepted as a matter of mathematics, that so long as half of all sentences are at or above, and half of all sentences are at or below a particular figure, the distribution of sentences above and below that point do not affect the median. Therefore sentencing in a manner compatible with Parliament’s intention does not require that sentences below the median are scaled in proportion to the baseline sentence.’

The same mathematical principle applies to sentences at or above the median: the distribution of sentences above the median will not affect the median. Arguably, sentences above the ‘future’ median, therefore, do not need to be scaled in proportion to the baseline sentence in order to satisfy the baseline provisions.

Sentencing Distribution

‘[152] This interpretation will create … an artificial sentencing pattern. That is not a matter which concerns the Court. It is accepted that legislative provisions may distort sentencing patterns. Mandatory minimum sentences may compress sentences towards the lower end of the range as a result of the principles of parsimony and proportionality of sentence to the objective gravity of the crime. Here those same requirements, together with the baseline provisions, will most likely lead to the formation of a significant gap between median sentences and sentences in cases falling below the median. While it is an unusual result, it is not one which is so absurd as to cast doubt on the construction of the provisions.’