Court of Appeal Confirms Approach to Changing Inadequate Sentencing Practices

The Victorian Court of Appeal has long called for increases in sentencing practices for certain offences. For example, the court has in the past held that sentences for incest, glassing offences and aggravated burglaries were too low.

Historically, the Court of Appeal has directed that Victorian courts should incrementally increase sentences for offences where sentencing practices were found to be inadequate. As another court said in 1976, the changes should occur ‘by steps and not by leaps’.

An incremental approach was preferred for at least three reasons:

  • the Sentencing Act 1991 (Vic) requires courts to take current sentencing practices into account in determining an appropriate sentence, and that was previously thought to include even inadequate sentencing practices
  • there was a concern that it would seem unfair if two people in very similar cases could receive markedly different sentences despite being sentenced only a short time apart
  • most offenders who plead guilty are informed by their lawyer about the general sentencing range they should reasonably expect to receive if they plead guilty, and some offenders may not have pleaded guilty if they had known that the sentence would be higher.

However, following the High Court’s decision in Dalgliesh in October 2017, this incremental approach no longer applies in Victoria. In that case, the High Court determined that Victorian courts had been giving too much weight to current sentencing practices, and that this consideration was inappropriately exerting a downward ‘gravitational pull’ away from what the appropriate sentence would be, were it to reflect community expectations.

As a result, while the Court of Appeal had already declared sentencing practices for the offence of incest to be generally inadequate in Victoria, the High Court clarified that the necessary change should occur immediately, not incrementally. This, the court said, was because ‘[t]he only expectation that an offender can have’ is that they will receive ‘a just sentence according to law’.

The question of whether the High Court’s decision entirely abolished the practice of incremental increases in Victoria has now been resolved in a judgment handed down by the Court of Appeal on 11 April. In Carter (A Pseudonym) v The Queen [2018] VSCA 88, the Court of Appeal held that:

The incremental increase cases in Victoria should be taken to have been overruled by Dalgliesh … Such an approach cannot stand with the reasoning in Dalgliesh, which requires a sentencing court in such circumstances to correct the error of principle underlying inadequate current sentencing practices and impose a just sentence according to law, even where an offender has pleaded guilty in light of current sentencing practices.

As a result, even though a Victorian court must still take into account current sentencing practices when determining an appropriate sentence, it is 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 therefore be made immediately, and not incrementally.