Sentencing Amendment (Baseline Sentences) Act 2014

Sentencing Amendment (Baseline Sentences) Act 2014

No. 52 of 2014

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of the Sentencing Act 1991

3Definitions

4Sentencing guidelines

5New sections 5A and 5B inserted

5ASentencing for a baseline offence

5BMedian sentence

6Content of guideline judgment

7Aggregate sentence of imprisonment

8New section 11A inserted

11AFixing of non-parole period for baseline offence

9Aggregate fines

10New section 152 inserted

152Transitional provisions—Sentencing Amendment (Baseline Sentences) Act 2014

Part 3—Amendment of the Crimes Act 1958

11Definition inserted

12Baseline sentence for murder

13Baseline sentence for certain incest offences

14Baseline sentence for sexual penetration of child under the age of 12

15Baseline sentence for persistent sexual abuse of child under the age of 16

16Baseline sentence for culpable driving causing death

Part 4—Amendment of the Drugs, Poisons and Controlled Substances Act 1981

17Definition inserted

18Baseline sentence for trafficking in a large commercial quantity of a drug or drugs of dependence

Part 5—Repeal of Amending Act

19Repeal of amending Act

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Endnotes

SectionPage

Victoria

SectionPage

Sentencing Amendment (Baseline Sentences) Act 2014[†]

No. 52 of 2014

[Assented to 12 August 2014]

Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014

The Parliament of Victoriaenacts:

Part 5—Repeal of Amending Act

Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to amend the Sentencing Act 1991 to provide for baseline sentences for indictable offences; and

(b)to amend the Crimes Act 1958 to fix a baseline sentence for—

(i) murder; and

(ii)incest with one's, or one's de facto spouse's, child or other lineal descendant or step-child under the age of 18; and

(iii) sexual penetration with a child under the age of 12; and

(iv)persistent sexual abuse of a child under the age of 16; and

(v)culpable driving causing death; and

(c)to amend the Drugs, Poisons and Controlled Substances Act 1981 to fix a baseline sentence for trafficking in a large commercial quantity of a drug or drugs of dependence.

2Commencement

s. 2

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 July 2015, it comes into operation on that day.

______

Part 2—Amendment of the Sentencing Act 1991

3Definitions

s. 3

See:
Act No.
49/1991.
Reprint No. 15
as at
30 September 2013
and amending
Act Nos
32/2013, 46/2013, 70/2013, 77/2013, 7/2014, 15/2014 and 17/2014.
LawToday:
www.
legislation.
vic.gov.au

In section 3(1) of the Sentencing Act 1991 insert the following definitions—

"baseline offence means an offence for which an Act specifies a baseline sentence;

Note

See section 5A.

baseline sentence, in relation to an offence, means the period specified by an Act as the baseline sentence for the offence;

Note

See section 5A.

median sentence—see section 5B;

total effective sentence has the same meaning as in the Criminal Procedure Act 2009;".

4Sentencing guidelines

After section 5(2)(a) of the Sentencing Act 1991 insert—

"(ab) the baseline sentence for the offence; and".

5New sections 5A and 5B inserted

After section 5 of the Sentencing Act 1991 insert—

"5A Sentencing for a baseline offence

(1)If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the baseline sentence for the offence, then—

(a)the offence is a baseline offence; and

(b)the period specified as the baseline sentence for the offence is the sentence that the Parliament intends to be the median sentence for sentences imposed for that offence in accordance with this section.

(2)Sentencing practices must give effect to the intention set out in subsection (1)(b).

(3) In sentencing an offender for a baseline offence, a court—

(a)must do so in a manner that is compatible with Parliament's intention as set out in subsection (1)(b); and

(b)for the purpose of doing so, must disregard any provision of this Part (including the requirement to have regard to current sentencing practices) if not to do so would be incompatible with that intention; and

(c) subject to paragraph (b), is required or permitted to take into account any matters that a court is required or permitted to take into account in sentencing an offender.

Note

s. 5

Matters that the court is required or permitted to take into account may, depending on the circumstances of the case, include the entering of a plea of guilty or the presence of any other mitigating factor or of any aggravating factor. Taking those matters into account contributes to the court's consideration of what is an appropriate sentence to impose in the case before it compared with a case for which the median sentence would be appropriate. The outcome of that consideration will determine whether the sentence imposed should be equal to, or the degree to which it should be greater or lesser than, the baseline sentence.

(4) A court that sentences an offender for a baseline offence must at the time of doing so state the reasons for imposing that sentence including its reasons for it being equal to or greater or lesser than (as the case requires) the baseline sentence for the offence.

(5)In imposing a total effective sentence in respect of 2 or more sentences, one or more of which is for a baseline offence, a court must sentence in accordance with this section for any baseline offence included in the total effective sentence.

(6) A reference in this section to a baseline offence includes an offence of aiding, abetting, counselling or procuring the commission of a baseline offence.

(7) This section does not apply in relation to sentencing for a baseline offence if—

(a)the offender was under the age of 18 at the time of its commission; or

(b)the offence is heard and determined summarily.

5BMedian sentence

s. 5

A reference in section 5A to a median sentence for sentences imposed for an offence is to a median where—

(a)both custodial and non-custodial sentences are considered, other than sentences imposed—

(i) on an offender for an offence committed when he or she was under the age of 18; or

(ii)for an offence heard and determined summarily; and

(b)if a total effective sentence is imposed in respect of 2 or more sentences, at least one of which is for a relevant offence, the term of the individual sentence for any such relevant offence is treated as the term of the sentence for that offence; and

(c) the length of that part of a partially suspended term of imprisonment that is not held in suspense is treated as the term of the sentence; and

(d) a wholly suspended term of imprisonment is treated as a non-custodial sentence; and

(e) a non-custodial sentence is treated as a term of imprisonment of zero months.".

6Content of guideline judgment

s. 6

After section 6AC(e) of the Sentencing Act 1991 insert—

"(ea) guidelines for sentencing offenders for baseline offences;".

7Aggregate sentence of imprisonment

After section 9(1A)(a) of the Sentencing Act 1991 insert—

"(ab) the offences comprise at least one offence that is a baseline offence; or".

8New section 11A inserted

After section 11 of the Sentencing Act 1991 insert—

"11A Fixing of non-parole period for baseline offence

(1)This section applies to a court when fixing, in accordance with section 11, a non-parole period—

(a)for a baseline offence; or

(b)in respect of a total effective sentence imposed in respect of 2 or more sentences, at least one of which is for a baseline offence.

(2)This section also applies to a court when fixing, in accordance with section 14, a new single non-parole period in circumstances where the further sentence is a sentence of imprisonment for a baseline offence.

(3) However, this section does not apply to a court when fixing a non-parole period for a baseline offence if—

(a)the offender was under the age of 18 at the time of its commission; or

(b)the offence is heard and determined summarily.

(4) The non-parole period must be at least—

s. 8

(a)30 years if the relevant term is the term of the offender's natural life; or

(b) 70% of the relevant term if that term is a term of 20 years or more; or

(5)In subsection (4) the relevant term is—

(a)if a non-parole period is being fixed for a baseline offence, the sentence for that offence; and

(b)if a non-parole period is being fixed in respect of a total effective sentence referred to in subsection (1)(b), that sentence.

(6) Nothing in this section affects the fixing of a non-parole period for an offence that is not a baseline offence or in respect of a total effective sentence imposed in respect of 2 or more sentences, none of which is for a baseline offence.".

9Aggregate fines

s. 9

After section 51(1) of the Sentencing Act 1991 insert—

"(1A) Despite subsection (1), a court must not impose one fine in respect of 2 or more offences if at least one of them is a baseline offence.".

10New section 152 inserted

At the end of Part 12 of the Sentencing Act 1991 insert—

"152 Transitional provisions—Sentencing Amendment (Baseline Sentences) Act 2014

(1)In this section—

2014 Act means the Sentencing Amendment (Baseline Sentences) Act 2014.

(2) The amendments made to this Act by Part 2 of the 2014 Act only apply to the sentencing of an offender on or after the commencement of that Part for an offence alleged to have been committed on or after that commencement.

(3) However, nothing in subsection (2) prevents a court taking into account the effect on current sentencing practices of the amendments made to this Act by Part 2 of the 2014 Act in sentencing an offender on or after the commencement of that Part for an offence to which those amendments would have applied had it been committed on or after that commencement.

Note

Section 5(2)(b) requires a court in sentencing an offender to have regard to current sentencing practices.

(4) For the purposes of subsections (2) and (3), if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of Part 2 of the 2014 Act, the offence is alleged to have been committed before that commencement.".

s. 10

______

Part 3—Amendment of the Crimes Act 1958

11Definition inserted

s. 11

See:
Act No.
6231.
Reprint No. 24
as at
1 July 2013
and amending
Act Nos
16/2004, 27/2011, 60/2013, 70/2013, 72/2013, 77/2013, 7/2014, 8/2014 and 17/2014.
LawToday:
www.
legislation.
vic.gov.au

In section 2A of the Crimes Act 1958 insert the following definition—

"baseline sentence, in relation to an offence, has the same meaning as in the Sentencing Act 1991;".

12Baseline sentence for murder

At the end of section 3 of the Crimes Act 1958 insert—

"(2)The baseline sentence for murder is 25 years.

Note

See section 5A of the Sentencing Act 1991 as to baseline sentences.".

13Baseline sentence for certain incest offences

(1)After section 44(1) of the Crimes Act 1958 insert—

"(1A) The baseline sentence for an offence under subsection (1) is 10 years if the court is satisfied beyond reasonable doubt that the victim was, at the time of the offence, under the age of 18.

Note

See section 5A of the Sentencing Act 1991 as to baseline sentences.

(1B) The circumstance described in subsection (1A)—

(a)is to be determined by the jury if the accused pleads not guilty to the offence; and

(b)is to be determined by the trial judge if the accused pleads guilty to the offence.".

(2)After section 44(2) of the Crimes Act 1958 insert—

"(2A) The baseline sentence for an offence under subsection (2) is 10 years.

Note

See section 5A of the Sentencing Act 1991 as to baseline sentences.".

14Baseline sentence for sexual penetration of child under the age of 12

s. 14

After section 45(2) of the Crimes Act 1958 insert—

"(2A) The baseline sentence for an offence against subsection (1) committed in the circumstance of aggravation described in subsection (2)(a) is 10 years.

Note

See section 5A of the Sentencing Act 1991 as to baseline sentences.".

15Baseline sentence for persistent sexual abuse of child under the age of 16

s. 15

After section 47A(4) of the Crimes Act 1958 insert—

"(4A) The baseline sentence for an offence under subsection (1) is 10 years.

Note

See section 5A of the Sentencing Act 1991 as to baseline sentences.".

16Baseline sentence for culpable driving causing death

After section 318(1) of the Crimes Act 1958 insert—

"(1A) The baseline sentence for an offence under subsection (1) is 9 years.

Note

See section 5A of the Sentencing Act 1991 as to baseline sentences.".

______

Part 4—Amendment of the Drugs, Poisons and Controlled Substances Act 1981

17Definition inserted

s. 17

See:
Act No.
9719.
Reprint No. 10
as at
30 November 2012
and amending
Act Nos
57/2012, 82/2012, 70/2013, 9/2014 and 13/2014.
LawToday:
www.
legislation.
vic.gov.au

In section 4(1) of the Drugs, Poisons and Controlled Substances Act 1981 insert the following definition—

"baseline sentence, in relation to an offence, has the same meaning as in the Sentencing Act 1991;".

18Baseline sentence for trafficking in a large commercial quantity of a drug or drugs of dependence

At the end of section 71 of the Drugs, Poisons and Controlled Substances Act 1981 insert—

"(2)The baseline sentence for an offence under subsection (1) is 14 years.

Note

See section 5A of the Sentencing Act 1991 as to baseline sentences.".

______

Part 5—Repeal of Amending Act

19Repeal of amending Act

s. 19

This Act is repealed on 1 July 2016.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014

Endnotes

[†] Minister's second reading speech—

Legislative Assembly:

Legislative Council:

The long title for the Bill for this Act was "A Bill for an Act to amend the Sentencing Act 1991 to provide for baseline sentences for indictable offences, to amend the Crimes Act 1958 and the Drugs, Poisons and Controlled Substances Act 1981 to fix a baseline sentence for certain offences against those Acts and for other purposes."