Individualised justice and consistency: recent changes in Victorian sentencing law

Last month, the High Court handed down judgment in Director of Public Prosecutions v Dalgliesh (a pseudonym), a decision which alters the sentencing landscape in Victoria. Not long before that, amendments to the Sentencing Act were passed which are set to introduce 'standard sentences' for certain indictable offences. With all these changes on the way, we've taken the opportunity to prepare a summary of what you need to know when it comes to sentencing (adult) offenders in Victoria.

Sentencing in Victoria, a refresher

In Victoria, sentencing is governed by two sources: legislation and the common law. Offences and their maximum (and sometimes minimum) penalties are usually found in legislation, including the Crimes Act 1958, the Summary Offences Act 1966, the Drugs, Poisons and Controlled Substances Act 1981 and the Road Safety Act 1986.

Operating within the boundaries of these legislative provisions, decision-makers have discretion as to the appropriate penalty. In reaching a decision, they are guided by sentencing purposes, principles and factors, which are found in the common law and the Sentencing Act 1991. For those wanting to do background reading, there are many great resources on how sentencing works, including the Sentencing Council's Quick Guide to Sentencing and the Judicial College of Victoria's Sentencing Manual.

Of particular note for the recent changes are the sentencing factors outlined in s 5(2) of the Sentencing Act. Under this section, decision-makers are required to have regard to a range of factors including the maximum penalty for the offence; current sentencing practices for the offence type (the sentences that have been given for similar cases); the nature and gravity of the offence; and the impact of the offence on any victim.

The decision in Dalgliesh

The issue before the High Court in Dalgliesh was essentially about the weight that should be accorded to current sentencing practices.  Our system values individual justice. The High Court affirmed this much in Dalgliesh, observing that 'the imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case.' However, it is also the case, as Gleeson CJ said in Wong v The Queen (and as the High Court reiterated in Dalgliesh), that 'the administration of criminal justice works as a system … It should be systemically fair, and that involves, amongst other things, reasonable consistency.' The consistency being referred to by the Court is the application of the relevant legal principles, rather than the numerical outcome.

In this case, Mr Dalgliesh had been convicted and sentenced for a number of serious offences in the County Court. The DPP appealed the sentence on two grounds: that the sentence imposed on the incest charge was manifestly inadequate and the orders for cumulation resulted in a total effective sentence that was manifestly inadequate.

The Court of Appeal clearly expressed a view that current sentencing practices for the offences in question were inadequate, concluding that the range is so low it 'reveals error in principle' and is not proportionate to the objective gravity of the offending. However, the Court of Appeal dismissed the appeal, holding that the sentences were within the range indicated by current sentencing practices.

The High Court rejected this approach, ruling that the Court of Appeal had erred by treating the range established by current sentencing practices as determinative or decisive of the appeal before it. The High Court unanimously found that there was no statutory basis for this interpretation. It reiterated that the consistency sought is that of approach, rather than outcome and that the Sentencing Act 'does not require adherence to a range of sentences that is demonstrably contrary to principle.'

In doing so, the Court also overruled the decision in Ashdown, which emphasised that an offender who pleads guilty to an offence does so in the expectation that he or she is to be sentenced in line with current sentencing practices. The High Court emphatically rejected this approach, ruling that 'the only expectation an offender can have at sentence is of the imposition of a justice sentence according to law.'

More change to come … amendments to the Sentencing Act

The other change on its way for sentencing in Victoria is in the form of legislation. Parliament recently passed the Sentencing Amendment (Standard Sentences) Bill 2017, which will come into effect in April 2018, unless proclaimed earlier. The Bill introduces standard sentences for certain indictable offences. The standard sentence will be an additional factor for courts to take into account, in the form of a legislative guidepost. The Bill also makes some changes to the operation of guideline judgments. 

Key takeaways

• The weight to be accorded to current sentencing practices in Victorian sentencing law has changed. The High Court has made it clear that current sentencing practices are one factor to be considered. They do not play a decisive or determinative role. 
• The introduction of standard sentences will soon provide another factor to be taken into account by the courts when sentencing offenders for certain indictable offences. These amendments will come into effect in April 2018, unless proclaimed earlier. 

VGSO provides assistance to government on the application of sentencing principles and statutory interpretation.  For more information and assistance please contact our senior lawyers below.

This blog was prepared by Katharine Brown, Solicitor.

Paula Cumbo 
9032 3043

Tien Tran
8684 0414