DPP v Walters

DPP v Walters - [2015] VSCA 303 - VSCA 2015 case summary — Zoe

[32]

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

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 being involved in the commission of a baseline offence.[18]

[84]

Traditionally, it has been Parliament's role to define a criminal offence, and to set the maximum penalty for that offence. The maximum penalty indicates the sentence that can be imposed for the very worst instance of a crime, and is also intended to set the relative severity of crimes. However, the maximum penalty itself is rarely imposed.

Below the maximum, the sentencing court imposes a penalty that it considers appropriate, by reference to a range of aggravating and mitigating factors specific to each case, and by reference to cases that have gone before, in accordance with current sentencing practices.

Other than setting the maximum penalty, Parliament at present has little say as to what sentences the common or mid-range instances of any particular crime should receive.

...

The baseline sentencing reform changes this. Through this bill, the Parliament is asked to set baseline sentences for six serious crimes that will serve as a guidepost for judges whenever they impose a sentence for those crimes.

The baseline sentence is the figure that Parliament expects will become the median sentence for that offence. This requires sentencing practices to change so that, over time, for sentences to which baseline sentencing applies, half the sentences imposed for the offence should be less than this figure, and half should be greater.

Thus, the sorts of instance of the offence concerned that have in the past incurred a sentence of median length - that is, at the midpoint of relevant sentences imposed for that offence - should in future receive a sentence equal to the baseline sentence.

In other words, the bill requires courts to increase sentences for the sorts of cases that incur a midpoint sentence from the current median sentence length to the sentence length specified as the baseline sentence. Sentences for cases that deserve to incur a higher or lower sentence than the median will then be set having regard to the median sentence length required by the baseline sentence.

This bill sets baseline sentences that are unashamedly higher than the current median sentences. This will serve to influence the entire range of sentences imposed for each baseline offence so that most sentences imposed for baseline offences under this bill will move higher to a greater or lesser extent as a result of the change to sentencing practices that the bill requires.

To the extent that current sentencing practices are inconsistent with the baseline sentence, the court must depart from current sentencing practices and give effect to Parliament's intention. Acting compatibly with the Parliament's intention that the baseline sentence should be the median sentence is to prevail over consistency with existing sentencing practices.

The bill does not seek to specify what factors involved in a particular instance of an offence should result in a sentence greater or lower than the median. This is something that will continue to be determined in accordance with existing sentencing principles_. Judges will be able to have regard to the sorts of instances of the offence that have incurred a median sentence and then determine whether the instance of offending before the court is deserving of a greater or lesser sentence than instances of offending that have incurred a median sentence. However, the individual sentence imposed must be consistent with the baseline sentence being the figure that Parliament expects will become the median sentence for that offence_, and the court will be required to state its reasons as to why a sentence imposed for a baseline offence is equal to or greater or lesser than the baseline sentence.

It is expected that judges may draw on their experience in sentencing for that offence and may seek submissions from counsel as to where the instance of offending before them stands in relation to an instance that would incur a median sentence. Judges may also have regard to sentencing data and other materials relating to the relevant offence published by the Sentencing Advisory Council, the Judicial College of Victoria or other sources to ascertain instances of offending that have incurred a median sentence. It is the government's intention that relevant statistical records will continue to be updated and that statistics will be prepared and published on a basis consistent with section 5B as proposed to be inserted by the bill.

...

[156]

My concern is with the appellant's reliance on decisions of this Court which discuss proportionality in sentencing as authority to support that aspect of his argument. In this regard, the appellant cited Veen v The Queen [No 2], Wong v The Queen, Muldrock v The Queen and Markarian v The Queen.

The discussion of proportionality in sentencing in the decisions cited affords no support for the appellant's argument. The discussion of proportionality in sentencing in those cases proceeds by reference to legislated yardsticks. Each yardstick fixed by the legislature provides a necessary datum point from which the discussion of proportionality in sentencing may proceed. As was said in Markarian v The Queen by Gleeson CJ, Gummow, Hayne and Callinan JJ: 'Judges need sentencing yardsticks.' The provision of those yardsticks is the province of the Parliament.

None of the decisions cited by the appellant offers any support for the notion that it is any part of the judicial function to ensure that the yardsticks legislated for various kinds of misconduct are 'appropriately' calibrated to some assumed range of moral culpability in offenders. The work of the legislature in laying down norms of conduct and attaching sanctions to breaches of those norms is anterior to the function of the judiciary. As was said in the Supreme Court of Canada in R v McDonnell: '[I]t is not for judges to create criminal offences, but rather for the legislature to enact such offences.'

The enactment of sentences by the legislature, whether as maxima or minima, involves the resolution of broad issues of policy by the exercise of legislative power. A sentence enacted by the legislature reflects policy-driven assessments of the desirability of the ends pursued by the legislation, and of the means by which those ends might be achieved. It is distinctly the province of the legislature to gauge the seriousness of what is seen as an undesirable activity affecting the peace, order and good government of the Commonwealth and the soundness of a view that condign punishment is called for to suppress that activity, and to determine whether a level of punishment should be enacted as a ceiling or a floor.

In laying down the norms of conduct which give effect to those assessments, the legislature may decide that an offence is so serious that consideration of the particular circumstances of the offence and the personal circumstances of the offender should not mitigate the minimum punishment thought to be appropriate to achieve the legislature's objectives, whatever they may be.[82]

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