High Court Holds Current Sentencing Practices Are Just One Factor to Take into Account, Not the Controlling Factor

Background to the High Court’s Decision

In 2016, the Victorian Court of Appeal heard an appeal by the Director of Public Prosecutions arguing that a sentence imposed on an offender was too low (DPP v Dalgliesh (A Pseudonym) [2016] VSCA 148). The offender had been sentenced for multiple charges of sexual assault and incest against his two stepdaughters. The Director argued that the sentence was manifestly inadequate and should be increased.

The Court of Appeal agreed with the Director that the objective seriousness of the offending demanded a considerably longer sentence than had been imposed. However, the court dismissed the Director’s appeal in this case because the sentence imposed on the offender was consistent with ‘current sentencing practices’.

What Are Current Sentencing Practices?

Current sentencing practices are defined as ‘the approach currently adopted by sentencing judges when sentencing for the particular offence’ (DPP v CPD [2009] VSCA 114). That is, they represent today’s sentencing standards.

Current sentencing practices are an important part of the sentencing exercise. In Victoria, section 5 of the Sentencing Act 1991 describes the factors a court should take into account when sentencing an offender. One of those factors is current sentencing practices. This means that when considering how to sentence an offender, the courts should consider how similar offenders guilty of similar offending have been sentenced, and should give more weight to recent cases.

Arguments in the High Court

After the Court of Appeal’s dismissal of the Director’s appeal, the Director then appealed to the High Court. The Director argued that the Court of Appeal had given too much weight to current sentencing practices, and that the offender’s sentence should be increased to an appropriate level. The Director argued that current sentencing practices were so low that they revealed an error in principle, and they should therefore not act as an anchor.

In contrast, the offender argued that he had pleaded guilty on the understanding that he would be sentenced in a similar way to others who had been sentenced for similar offending (Ashdown v The Queen [2011] VSCA 408). He argued that the sentencing court must have regard to current sentencing practices, even if they are inappropriately low, because equality of justice demands that like cases must be treated alike.

The High Court’s Decision

In its decision, the High Court agreed with the Director and overturned the Court of Appeal’s decision. The High Court held that even offenders who plead guilty believing that they will be sentenced in the same way as similar offenders who have committed similar offences cannot reasonably expect to receive a manifestly inadequate sentence. The court said that ‘the only expectation that an offender can have at sentence is the imposition of a just sentence according to law’.

The court went on to explain that nothing in the Sentencing Act 1991 (Vic) suggests that current sentencing practices should have greater importance in the sentencing decision than any other relevant factor. They are only one factor among many, and not the controlling factor, in the fixing of a just sentence.

The High Court therefore concluded that:

[T]he perception of possible unfairness to the respondent arising from an expectation assumed to attend his plea of guilty was not a sound reason for the Court of Appeal to decline to give effect to its conclusion as to the inadequacy of the sentence which had been imposed by the sentencing judge …

The duty [of the sentencing court] is to impose a sentence that is appropriate in all the circumstances of the case. It is not consistent with that duty to permit a manifestly inadequate sentence to stand … [T]he earlier decisions of the Court of Appeal to the contrary are wrong and are not to be followed or applied.

Should the Change to Sentencing Practices Be Incremental or Immediate?

Importantly, as the Council has noted, the disagreement between the Court of Appeal and the High Court was not about whether sentencing practices for incest offences were too low. Both courts agreed that they were. In fact, the Court of Appeal ordered Victorian courts to begin incrementally increasing sentencing outcomes for those offences.

Instead, the point on which the High Court and the Court of Appeal disagreed was about the extent to which current sentencing practices should anchor individual sentencing decisions. The Court of Appeal considered it necessary to incrementally increase sentences to balance the need to increase inadequate sentencing practices with the offender’s expectation that they would be sentenced according to current sentencing practices. The High Court disagreed and held that sentencing practices should be increased immediately, not incrementally.

The Court of Appeal has now confirmed that this reasoning applies to all cases in which sentencing practices are found to be inadequate (Carter v The Queen [2018] VSCA 88).