A Sentencing Guidelines Council for Victoria: Online Survey

The Victorian Government has asked the Sentencing Advisory Council for advice on the most suitable model for a sentencing guidelines council.

You can find more detail about sentencing guidelines councils generally and this project in  A Sentencing Guidelines Council for Victoria: Issues Paper.

We’d like to get your ideas about all the questions contained in the issues paper. You can make a formal, written submission or complete the online survey.

About the Online Survey

The online survey asks your views on the six most important questions in the  issues paper.  You don’t have to answer all six questions, and you can answer a question briefly or in detail.

Constitutional Issues

We are currently seeking expert legal advice about constitutional issues related to establishing a sentencing guidelines council in Victoria. It is likely that a sentencing guidelines council would be a statutory body, independent from government. It would include community and judicial members, and it would be able to develop and publish sentencing guidelines capable of affecting the way in which courts in Victoria sentence offenders.

Constitutional issues arise because there are limitations on the functions that a Victorian judicial officer can perform, even when acting in a personal capacity. There are also limitations on the functions that a Victorian court can perform. State courts must apply federal laws, and so must maintain ‘institutional integrity’ in a way that is consistent with the Australian Constitution. As a result, our final advice to the Attorney-General will be guided by the expert constitutional advice we receive about what a guidelines council can and cannot do.

Privacy and Confidentiality

The survey lets you choose whether your response is confidential, anonymous or public.

Providing your contact details lets us contact you if we need to get more information about your ideas or comments. It’s optional.

About the Six Questions

1. Composition of the Sentencing Guidelines Council

(Refer to issues paper Question 2)

Who Should Be on the Sentencing Guidelines Council?

We believe that it‘s essential to have community members on the sentencing guidelines council. Their involvement would not only bring a diverse range of experience and views, but it would also assist in promoting community confidence in the criminal justice system.

We also see it as equally important that there be a prominent voice on the sentencing guidelines council for the judiciary (magistrates and judges), particularly as judicial officers will ultimately be responsible for applying sentencing guidelines.

Preliminary Proposal

We propose that the sentencing guidelines council have 13 members:

  • Seven judicial members:
    • two justices of the Supreme Court
    • two judges of the County Court
    • the President or a magistrate of the Children’s Court
    • two magistrates of the Magistrates’ Court.
  • Six legal and community members who, in the opinion of the Attorney-General, have expertise, knowledge and/or skills relevant to sentencing and criminal justice.

Survey Questions

Is the proposed composition of the sentencing guidelines council appropriate?

If not, what alternative composition should the sentencing guidelines council have?

Jump to the survey

2. Functions of the Sentencing Guidelines Council

(Refer to issues paper Question 4)

What Should the Sentencing Guidelines Council Do?

The main function of any sentencing guidelines council is to develop and publish sentencing guidelines. Sentencing guidelines councils in other countries also sometimes carry out additional functions, such as monitoring the operation and effect of guidelines, or providing advice to government about sentencing matters.

There may be constitutional limitations on the functions of a sentencing guidelines council in Victoria. For example, if the guidelines council is to have judicial members, it must be independent of the government (both in appearance and in practice), and so it might not be allowed to engage in any activity that involves giving advice to, or taking directions from, the government.

Preliminary Proposal

We propose that the functions of the sentencing guidelines council in Victoria be:

  • to develop and issue sentencing guidelines for use by the judiciary (magistrates and judges) when sentencing
  • to engage in consultation with the general community, courts, criminal justice stakeholders and other interested persons or organisations when developing sentencing guidelines
  • to perform any related functions, such as publishing and promoting awareness of these sentencing guidelines.

Survey Questions

Are the proposed functions of the sentencing guidelines council appropriate?

If not, what alternative or additional functions should the sentencing guidelines council have?

Jump to the survey

3. Initiation of Sentencing Guidelines

(Refer to issues paper Question 5)

Who Should Decide What Sentencing Guidelines Are Needed?

In other countries, the equivalent of Victoria's Attorney-General and the Court of Appeal can usually ask the sentencing guidelines council to develop a particular sentencing guideline. Generally, the sentencing guidelines council then has a choice about whether to comply with that request.

We propose that this approach also be adopted in Victoria, so that the final decision about whether to develop a sentencing guideline be made by the sentencing guidelines council itself.

We also propose that the Attorney-General be able to ask the sentencing guidelines council to develop a particular sentencing guideline, and that while the sentencing guidelines council would not be required to comply with that request, it would be required to provide reasons if it did not comply. We make this proposal on the basis that it acknowledges the Attorney-General’s authority on matters of criminal justice in Victoria, while ensuring the independence of the sentencing guidelines council.

We propose that other interested parties or organisations also be able to ask the sentencing guidelines council to develop a specific sentencing guideline, but they would do so informally, for example, by sending correspondence directly to the sentencing guidelines council.

Preliminary Proposal

A Victorian sentencing guideline should be initiated:

  • on the sentencing guidelines council’s own motion or
  • at the request of the Attorney-General, provided that the sentencing guidelines council is not required to comply with that request.

Survey Questions

Is the proposed process for initiating a sentencing guideline appropriate?

If not, what other process should the sentencing guidelines council have for initiating a sentencing guideline?

Jump to the survey

4. Consultation on Sentencing Guidelines

(Refer to issues paper Question 6)

Who Should Be Consulted about Sentencing Guidelines?

Community engagement and input will be central to developing sentencing guidelines in Victoria. Consultation with the community and key stakeholders helps create informed and constructive public debate, for example, about consistency and fairness in sentencing. Consultation will also help ensure that sentencing guidelines reflect community values.

As part of the consultation process, sentencing guidelines councils in the United Kingdom are required to publish draft sentencing guidelines. These draft guidelines form the basis of the consultation process. Sentencing guidelines councils then ask for and consider all submissions and comments made about the draft guideline before finalising a sentencing guideline.

Because of the importance of consultation to the guideline development process, we propose that the sentencing guidelines council in Victoria publish draft guidelines, and then consult with the general community, courts and other interested persons or bodies. We also propose that (unlike some other sentencing guidelines councils) the Victorian sentencing guidelines council not be able to bypass consultation to publish ‘urgent’ guidelines.

Some sentencing guidelines councils also publish what is called an ‘impact’ or ‘resource assessment’ alongside the draft guidelines. The impact or resource assessment informs stakeholders about the likely effect of the draft guideline on (for example) the prison population or the workload of correctional officers.

Preliminary Proposal

A Victorian sentencing guidelines council should be required to publish draft sentencing guidelines and consult with:

  • the general community
  • the courts
  • government departments and
  • other interested persons or bodies.

A Victorian sentencing guidelines council should not be permitted to bypass consultation requirements in order to publish an urgent sentencing guideline.

We further seek your views on whether the sentencing guidelines council should:

  • be expressly required to consult with any additional persons or organisations about any draft guidelines and/or
  • be required to publish an impact or resource assessment alongside any draft or final sentencing guideline.

Survey Questions

Are the proposed consultation requirements for the sentencing guidelines council in Victoria appropriate? If not, what alternative consultation requirements should the sentencing guidelines council have?

Should the sentencing guidelines council be required to consult with any additional persons or organisations (including parliament) in relation to any draft or final guideline? Why/why not?

Should the sentencing guidelines council be required to publish an impact or resource assessment alongside any draft or final sentencing guideline? Why/why not?

Jump to the survey

5. Form and Content of Sentencing Guidelines

(Refer to issues paper Question 9)

What Should a Sentencing Guideline Contain?

In other countries, there are usually two types of sentencing guidelines: principle-based or offence-based.

A principle-based guideline provides sentencing principles to guide sentencing decisions. For example, in England and Wales there are principle-based guidelines covering such things as guilty plea discounts, whether a custodial or a non-custodial sentence is appropriate, and sentencing children and young people.

An offence-based guideline provides a combination of both numerical and principled guidance for particular offences or offence categories. For example, in England and Wales there are offence-based guidelines covering offence categories such as theft offences, environmental offences, sexual offences, burglary offences and dangerous dog offences. In each of these offence-based guidelines, the court is asked to consider a wide range of relevant factors that indicate a starting point when sentencing, and what is the lowest and highest appropriate sentence. They also include statements of principle, such as how previous good character should be taken into account. Appendix 2 to the issues paper contains an example of an offence-based guideline.

Importantly, even when sentencing guidelines provide numerical guidance, courts retain a great deal of sentencing discretion, and are free to choose an appropriate sentence that takes into account all the relevant circumstances of each individual case.

Preliminary Proposal

We propose that the sentencing guidelines council should be able to prepare sentencing guidelines that set out:

  • comprehensive offence-based guidance that provides starting points and the appropriate level or range of sentences for a particular offence or class of offence
  • the criteria to be applied in selecting from various sentencing alternatives
  • the weight to be given to the various purposes specified in the Sentencing Act 1991 (Vic) for which a sentence may be imposed
  • the criteria by which a sentencing court is to determine the gravity of an offence
  • the criteria that a sentencing court may use to reduce the sentence for an offence
  • the weight to be given to relevant criteria
  • any other matter consistent with the principles of the Sentencing Act 1991 (Vic) and/or
  • a non-exhaustive list of permissible reasons to depart from a sentencing guideline.

Survey Questions

Is the proposed scope of form and content for a sentencing guideline developed by the sentencing guidelines council in Victoria appropriate?

If not, what other form(s) or content should a sentencing guideline have?

Jump to the survey

6. The Effect of a Sentencing Guideline

(Refer to issues paper  Question 10)

How Binding Should Sentencing Guidelines Be?

A key question for this project is what the appropriate effect of sentencing guidelines should be on the courts, including how binding guidelines should be.

Different countries take different approaches to how courts must take guidelines into account when sentencing. Courts must:

  • ‘have regard to’ sentencing guidelines (Scotland)
  • sentence in a manner ‘consistent with’ sentencing guidelines (New Zealand)
  • ‘follow’ sentencing guidelines (England and Wales).

The requirement to have regard to sentencing guidelines seems to be the least binding option, particularly if courts can depart from (not follow) guidelines, so long as courts explain their reasons for doing so. However, this was the approach originally used in England and Wales, and the requirement was changed due to a lack of clarity about how guidelines must be taken into account.

The requirement to sentence in a manner consistent with sentencing guidelines is somewhat firmer, in that courts can only sentence inconsistently with a guideline if there is a good reason. However, this approach has not been tested, as draft guidelines were created but never finalised in New Zealand.

The requirement to follow sentencing guidelines is perhaps the firmest approach. This approach binds courts to adhere to sentencing guidelines. However, even this approach does not dictate sentencing outcomes. Under this requirement, not only do courts still have freedom to impose an appropriate sentence in each particular case, but they may also depart from a sentencing guideline if doing so is in the interests of justice.

In practical terms, what it means to follow a guideline would depend on the content of each sentencing guideline:

  • For a principle-based sentencing guideline, courts would be required to follow those principles.
  • For an offence-based guideline (for example, one that specifies the lowest and highest appropriate sentence for a particular offence), courts would be required to identify the appropriate starting point and range of sentences for that category of offence.
  • For a sentencing guideline that specifies the steps courts should take during sentencing, courts would be required to follow those steps, in the proper order.

We have not offered a preliminary proposal, and instead seek your views about how binding sentencing guidelines should be in Victoria.

A related issue is whether sentencing guidelines should affect ‘current sentencing practices’ (the types of sentences similar offenders have previously received) as a sentencing consideration. In Victoria, courts are required to take current sentencing practices into account when deciding the appropriate sentence. We seek your views about whether sentencing guidelines should overrule any inconsistent current sentencing practices.

Survey Questions

How binding should a sentencing guideline be?

Should a court be required to ‘have regard to’, ‘follow’, or ‘sentence in a manner consistent with’ a sentencing guideline? If you do not agree with any of these requirements, what requirement would be appropriate?

Should a court be permitted to depart from a sentencing guideline where doing so would be ‘in the interests of justice’? If not, what test should permit a court to depart from a sentencing guideline?

Irrespective of the particular requirement for a court to follow, or the test permitting departure from, a sentencing guideline, should inconsistent current sentencing practices be overruled by a relevant sentencing guideline?

The Survey 

Please enter your contact number without spaces.
Refresh Type the characters you see in this picture.
Type the characters you see in the picture; if you can't read them, submit the form and a new image will be generated. Not case sensitive.  Switch to audio verification.