The quest for perfect sentences

Sentencing Guidelines Council for Victoria ... Community input on sentencing ... Judges have the numbers on the new council ... Constitutional issues ... Peach Melba's blog 

FOLLOWING similar models in Scotland, England and Wales, last year the Victorian attorney general Martin Pakula asked the Sentencing Advisory Council to consult and advise on creating a Sentencing Guidelines Council for Victoria.

The SAC is an independent body established in 2004. It provides statistical information on sentencing, conducts research, educates the public on sentencing and provides advice to the attorney general and the Court of Appeal. 

The proposed new council is supported by the government with the premier saying that legislation to implement it will be introduced this year. 

Sentencing criteria currently has two sources, statute and case law. There are three key acts in Victoria with regards to sentences: the Crimes Act 1958 (Vic) for indictable offences, the Summary Offences Act 1966 (Vic) and the Sentencing Act 1991 (Vic).

Judges can only impose a sentence for the purposes of punishment, deterrence, rehabilitation, denunciation and to protect the community (s.5 Sentencing Act). They must consider sentencing factors including the maximum penalty for the offence, the baseline sentence for the offence (if any), the nature and gravity of the offence, the offender's culpability and the impact on the victim.

In practice, sentencing is an exercise in judicial discretion. Different courts will arrive at different sentences as they balance the purposes and principles of sentencing against the circumstances of the offending in different ways.

A guidelines council would be an additional source of guidance for the courts as its purpose would be to structure judicial discretion with regards to sentencing.

In its issue paper on the proposed Sentencing Guidelines Council, the SAC identified sentencing guidelines as generally being a decision-making process that judicial officers should follow, a comprehensive and non-exhaustive set of relevant considerations, and sentencing ranges.

The guidelines council has two proposed purposes: to promote a consistent approach to sentencing, and to promote public confidence in the criminal justice system. These objectives were welcomed by Victoria Legal Aid, which wrote in its submission to the SAC that "a consistent and easily understood approach to sentencing has significant benefits for those involved in the criminal justice system and for the public at large". 

Public opinion on sentencing has a direct impact on politicians. In 2014, the Victorian Parliament introduced baseline sentences intended to be the median sentence for seven offences (including murder and trafficking in commercial quantities).

In 2015, the Court of Appeal in DPP v Walters spelled the end of baseline sentencing with its expressive assessment that "the defect in the legislation is incurable" - namely that it is rather impossible for a judge to impose a sentence which will achieve the intended median sentence in the future. The court evidently had a better appreciation of statistics than the legislators, stating:  

"Parliament cannot declare something to be the median. The median does not exist - and will not exist - except as a statistical product, calculated at some time in the future, once the period chosen for the collection of statistics has ended." 

As baseline sentencing was "incapable of being given any practical operation", by 2016 the provisions were repealed.

The SAC's issues paper sought submissions on its proposal that the attorney general would be able to request the creation of specific sentencing guidelines, which the guidelines council would have discretion to refuse (providing written reasons for doing so).

Other interested parties would also be able to send informal requests for the development of specific guidelines. The SAC suggests that the status quo be maintained for courts, namely that they make suggestions in written judgments about where judges would benefit from guidance on sentencing.  

The composition of the guidelines council is proposed to be seven judicial members drawn from Victoria's criminal jurisdictions (including the Supreme Court and the Children's Court), and six legal and community members with relevant expertise, knowledge or skills. 

The search for guidelines

In response, Victoria Legal Aid submitted that membership of the council should include representatives from the County Koori Court and/or the Koori Court and an Indigenous Australian leader.

The SAC's recommended process is that once a decision to develop a sentencing guideline is made by the council, this should be followed by a consultation process with courts, government departments, other interested parties and the general community, by opening draft guidelines to comments.

The guidelines would then be finalised either by formal approval of the Court of Appeal, or by the guidelines council itself, or by the guidelines being treated as a "novel legal instrument" (that is, not delegated legislation or common law).

However, in this arrangement care must be taken for the scheme not to fall afoul of the Constitution.

The risk of the council approving its own guidelines is that if the guidelines are deemed to be legislative instruments, it may be that the guidelines council is performing functions closely connected with the executive or legislature, and therefore it would be constitutionally impermissible for judicial officers to be members of the council.

On the other hand, a court-approval model might also be constitutionally impermissible as issuing guidelines could require judicial officers to perform executive functions. However, the constitutional advice received by the SAC is that the involvement of sitting judicial officers in making sentencing guidelines does not involve the conferral of an incompatible function.

If established, the guidelines council would be the first of its kind in Australia.

From: Elif Sekercioglu