Baseline Sentencing ● May 2012 ● Sentencing Advisory Council
Baseline Sentencing
Report
Sentencing Advisory Council, May 2012
Warning to readers
This paper contains subject matter that may be distressing to readers, including case examples that contain explicit material describing offences.
Published by the Sentencing Advisory Council, Melbourne, Victoria, Australia
This paper reflects the law as at 1 February 2012.
© Copyright State of Victoria, Sentencing Advisory Council, May 2012. This publication is protected by the laws of copyright. No part may be reproduced by any process except in accordance with the provisions of the Copyright Act 1968 (Cth).
ISBN 978-1-921100-90-1 (Print)
978-1-921100-91-8 (Online)
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Contents
Warning to readers 1
Contents 2
Preface 12
Contributors 14
Glossary 16
Executive summary 18
Terms of reference 18
Consultation 20
Package of recommendations 20
Context of terms of reference 21
Scope of the reference 21
Implementation of a baseline sentencing scheme within the current sentencing framework 21
Proposed model to implement a baseline sentencing scheme 23
Exclusions from the baseline sentencing scheme 26
Children sentenced in the higher courts 26
Baseline offences 27
Suggested additional offences 27
Gross violence offences 28
Attempts, conspiracy and incitement offences 29
The baseline levels 30
Baseline levels and the median non-parole period 32
The role of the Court of Appeal 33
Likely effects of a baseline sentencing scheme 34
Legislative amendments 35
Other relevant matters 36
Summary of recommendations 37
Recommendation 1 – The baseline level 37
Recommendation 2 – Application of the baseline level 38
Recommendation 3 – One baseline level for each offence 38
Recommendation 4 – Redefinition of offences 38
Recommendation 5 – Application of the baseline level to cases with one charge 38
Recommendation 6 – Application of the baseline level to cases with multiple charges 39
Recommendation 7 – Exclusions from the baseline sentencing scheme 40
Recommendation 8 – Additional offences 41
Recommendation 9 – Incitement, conspiracy and attempt offences 41
Recommendation 10 – Baseline levels 42
Recommendation 11 – Legislative amendments 43
Chapter 1: Introduction 44
Terms of reference 44
Context of the reference 47
Government concern regarding current sentencing practices 47
Director of Public Prosecutions’ challenge to current sentencing practices 48
Court of Appeal commentary on current sentencing practices for certain offences 49
Scope of the reference 50
Chapter 2: Current sentencing framework 52
Sentencing adults in the higher courts 52
Sentencing children in the higher courts 54
Sentencing under the ‘dual track’ system 57
The non-parole period 58
Setting a non-parole period 59
Purposes of a non-parole period 60
The non-parole period compared with the head sentence 60
Serious offender provisions 62
Continuing criminal enterprise provisions 64
Indefinite sentences 65
Chapter 3: A baseline sentencing scheme 67
Sentencing principles under a baseline scheme 67
Sentencing synthesis 69
The Council’s assumptions about the baseline sentencing scheme 73
What should the baseline represent? 75
Baseline sentencing models 75
Combined Model 76
Objective Offence Seriousness Model 78
Difference between New South Wales’ standard non-parole period scheme and the proposed baseline sentencing scheme 83
Other jurisdictions 84
Recommended model 90
Stakeholders’ views 90
The Council’s view 92
Multiple baseline levels 93
Stakeholders’ views 93
The Council’s view 95
Recommendation 1 – The baseline level 96
Recommendation 2 – Application of the baseline level 97
Recommendation 3 – One baseline level for each offence 97
Redefinition of offences 97
Stakeholders’ views 98
The Council’s view 98
Recommendation 4 – Redefinition of offences 99
Chapter 4: Sentencing under the baseline sentencing scheme 99
Current sentencing procedure 99
Sentencing procedure under a baseline sentencing scheme 100
Cases with one charge of a baseline offence that receives a sentence of imprisonment 101
Recommendation 5 – Application of the baseline level to cases with one charge 106
Cases with multiple charges that receive a sentence of imprisonment 106
Stakeholders’ views 108
The Council’s view 109
When the base sentence offence is not a baseline offence 111
Applying the baseline 112
Option one: courts determine sentence and non-parole period for each charge (New South Wales approach) 113
Option two: non-parole period only for each charge 116
Option three: apply one baseline to the case as a whole 118
Option four: determine an adjusted baseline for the base offence then a non-parole period for the case as a whole 119
Stakeholders’ views 121
The Council’s view 122
Aggregate sentencing and the baseline sentencing scheme 123
Rolled-up charges, representative charges and the baseline 126
Recommendation 6 – Application of the baseline level to cases with multiple charges 127
Chapter 5: Exclusions from the baseline sentencing scheme 128
No general exclusion 128
Offences tried summarily 129
Magistrates’ Court 129
Children’s Court 131
Young offenders sentenced under ‘dual track’ 131
The Council’s view 132
Children sentenced in the higher courts 133
Other Australian jurisdictions 134
Stakeholders’ views 135
The Council’s view 137
Recommendation 7 – Exclusions from the baseline sentencing scheme 138
Chapter 6: Baseline offences 139
Offences in the terms of reference 139
Exclusions suggested by stakeholders 140
Making a threat to kill 140
Other suggested exclusions 142
Additional offences 143
Stakeholders’ views 143
The Council’s view 147
Recommendation 8 – Additional offences 151
Attempts, conspiracy and incitement offences 152
Recommendation 9 – Incitement, conspiracy and attempt offences 157
Chapter 7: Setting the baseline levels 157
Assumptions 159
Levels reflect the chosen model: middle of the range of custodial sentences 159
Baseline sentencing does not apply to offences heard and determined summarily 162
Exclusion of discount for guilty plea and/or assistance to authorities 162
Sources of information considered by the Council in setting the levels 167
Maximum penalty 167
Current sentencing practices 169
Derived non-parole period midpoint 171
Comments by Judges of the Court of Appeal 173
Community attitudes to relative offence seriousness 174
Chapter 8: Baseline levels 176
Summary of approach taken by the Council in determining the baseline levels 176
Relativities between offences 177
Death-related offences 182
Sexual offences 195
Injury offences 207
Property offences 218
Drug offences 223
Recommendation 10 – Baseline levels 225
Chapter 9: Likely effects 227
Issues in estimating the impact of the baseline sentencing scheme 227
Sentence adjustment 229
Scope of cases 229
Methodology 234
Data 234
Estimating sentencing changes 235
Estimating prison population changes 235
Assumptions and limitations 236
Effect on sentencing 237
Effect on prison population 243
Summary of effects 250
Chapter 10: Baseline levels and the median non-parole period 251
What is the median? 251
What does the baseline level represent? 252
Relationship between the baseline level and the median 252
The derived non-parole period midpoint 254
The role of the Court of Appeal 256
Appeals against errors in sentence 257
Provision of guidance 264
Chapter 11: Legislative amendments 265
Sentencing Act 1991 (Vic) 266
Crimes Act 1958 (Vic) 267
Drugs, Poisons and Controlled Substances Act 1981 (Vic) 268
Court of Appeal 268
Commencement 268
Recommendation 11 – Legislative amendments 269
Chapter 12: Other relevant matters 270
Effects on pleading practices and court resources 270
Effects on sentence indication 275
Effects on the County Koori Court 277
Constitutional issues 280
Human rights obligations 281
Custodial issues and future costs 283
Monitoring and evaluation 285
Timing and implementation 286
Appendix 1: Results of ‘My Views Survey’ 286
Appendix 2: Serious and significant offences 293
Appendix 3: Consultation – meetings and submissions 295
Meetings/roundtables 295
Roundtable attendees 295
Submissions 296
Appendix 4: Offence data 297
Offence 298
Murder 299
Defensive homicide 300
Child homicide 302
Arson causing death 304
Manslaughter 305
Culpable driving causing death 308
Dangerous driving causing death 310
Manslaughter – suicide pact 312
Making a threat to kill 313
Rape 315
Sexual penetration with a child under 12 317
Incest – parent or de facto parent 318
Persistent sexual abuse of a child under 16 320
Sexual penetration with a child 12–16 (where the child is under the care, supervision or authority of offender) 322
Sexual penetration with a child aged 12–16 324
Incest – sibling 326
Kidnapping – section 63A of the Crimes Act 1958 (Vic) 327
Intentionally causing serious injury 329
Recklessly causing serious injury 331
Kidnapping – common law 332
Abduction or detention 334
Assault with intent to rape 336
Abduction of a child under the age of 16 337
Armed robbery 338
Aggravated burglary 340
Arson 342
Trafficking in a large commercial quantity of a drug of dependence 344
Trafficking in a commercial quantity of a drug of dependence 346
References 347
Bibliography 347
Media releases 350
Case law 350
Legislation and Bills 354
Victoria 354
Other jurisdictions 355
Quasi-legislative materials 356
Preface
In April 2011, the Attorney-General asked the Sentencing Advisory Council (‘the Council’) to advise him on aspects of a baseline sentencing scheme. The introduction of such a scheme is one of a number of policies relating to sentencing that the then opposition announced prior to its election to government in 2010.
Among those policies, the baseline sentencing scheme – governing the way in which higher courts will sentence the majority of offences heard before those courts – represents one of the most significant changes to sentencing in Victoria for many decades.
The advice that the Attorney-General has sought from the Council is limited to such matters as the offences that should be included in the scheme, the baseline levels for those offences, how the scheme should operate in practice and the likely effects of the scheme on prisoner numbers. The Attorney-General has not asked the Council to examine the merits of a baseline sentencing scheme or whether a baseline sentencing scheme should be introduced. While acknowledging the views expressed by the majority of stakeholders consulted – including objections to the introduction of a baseline sentencing scheme – the Council has confined its advice to those matters raised in the terms of reference.
It is important to recognise that the baseline sentencing scheme is not a mandatory custodial sentencing scheme. A baseline level represents the starting point for the sentencing judge when determining the non-parole period for a baseline offence, after the judge has decided to impose a term of imprisonment.
This project posed a number of challenges in formulating a scheme that would implement the government’s policy objectives within the existing statutory and common law framework. For example, the Council sought to devise a practical way in which the baseline level set for an individual offence could influence the non-parole period set for a case as a whole. Similarly, the Council considered how sentences should be imposed in cases involving multiple offences, including multiple baseline offences.
Sentencing is not simply a mathematical process. It involves complex decision-making based on a court’s consideration of a wide array of factors and circumstances weighed against legislated and common law sentencing principles and purposes.
The proposal for a new baseline sentencing scheme illustrates the perennial tension between legislative and judicial prescriptions for how a court should sentence and the retention of sufficient discretion for a sentencing judge to sentence in a way that achieves individualised justice.
Without legislated processes and parameters, community values and expectations expressed through parliament may be undermined. A lack of prescription may also result in unjustified disparity in sentencing outcomes, which undermines the rule of law. At the same time, limiting discretion could result in the unique circumstances of each case not being taken into account, causing injustice for particular offenders. In formulating its recommendations, the Council sought to implement the government’s policy objectives while balancing these competing (though not mutually exclusive) concerns.
The Council has provided specific recommendations on the sentencing model, sentencing procedure and exclusions from the baseline sentencing scheme, as well as a recommended baseline level for each baseline offence. However, further refinement and consideration of how the baseline sentencing scheme will operate in practice is required.
One way in which oversight of and guidance on the operation of the scheme, once legislated, may be provided in the future is through decisions of the Court of Appeal, including guideline judgments in appropriate cases. Such judgments might specify guidelines for the way in which courts are to sentence under the baseline sentencing scheme, including factors relevant to determining where an example of an offence sits in relation to the legislated baseline level.
Contributors
Authors
Narelle Sullivan
Donald Ritchie
Data analysts
Geoff Fisher
Georgina Payne
Sentencing Advisory Council
Chair
Arie Freiberg
Deputy-Chair
Thérèse McCarthy
Council Members
Carmel Arthur
Graham Ashton†
Hugh de Kretser
Peter Dikschei*
David Grace QC
John Griffin†
Jenny Morgan
Barbara Rozenes
Gavin Silbert SC
Lisa Ward
Kornelia Zimmer*
*Commenced 1 January 2012. Did not participate in any deliberations regarding this report.
†Commenced 21 February 2012. Did not participate in any deliberations regarding this report.
Chief Executive Officer
Stephen Farrow
Acknowledgements
The Council would like to thank all of those who made submissions and attended meetings and roundtables in relation to this reference. The Council would also like to thank the Department of Justice Library staff for their assistance in the preparation of this report.
Glossary
Adjusted baseline / The period (in years) determined by a court when sentencing a baseline offence after starting at the baseline level and adjusting that level to account for the offence factors, the offender factors and any discount for a guilty plea and/or assistance to authorities.Base sentence / The sentence of imprisonment in a case in relation to which other sentences of imprisonment are ordered to be served concurrently and/or cumulatively.