Discretionary sentencing

Robert Corr

It must be an election year in Victoria, because there has been a sharp increase in legislative attacks on judicial discretion.

The phase-out of suspended sentences will soon be complete, with the complete abolition of this option for offences committed after 31 August 2014. Monitoring by the Sentencing Advisory Council suggests that prison sentences have been increasing since the phase-out began. This can be expected to put further pressure on the prison system and its capacity to rehabilitate offenders. In July, the Victorian Ombudsman announced an investigation into rehabilitation programs, observing, ‘It’s no secret that Victoria’s increasing prison population has put stress on prisoner access to education and rehabilitation programs throughout their sentences.’ A booming prison population with reduced access to high quality rehabilitation programs increases the risk of a criminogenic effect.

The Sentencing Amendment (Baseline Sentences) Act 2014 (Vic) has been passed, covering a first tranche of offences including murder, culpable driving, certain sex offences against children, and trafficking a large commercial quantity of drugs. The Sentencing Advisory Council was asked for its advice on implementing the policy — but not its merits. Nevertheless, it noted, ‘The majority of stakeholders expressed strong opposition to a baseline sentencing scheme.’ Needless to say, the baselines in the Act are longer than the SAC’s recommended sentences. The Act states that baseline sentences are ‘the sentence that the Parliament intends to be the median sentence for sentences imposed for that offence’, and requires judges to ‘give effect’ to that intention. Reasons must be given as to why the sentence is above or below the baseline sentence, although the Explanatory Memorandum helpfully advises, ‘The baseline sentence is not a starting point for sentencing judges nor does it require two-stage sentencing.’

Judges have until commencement on 1 July 2015 to work out how they can give effect to a hypothetical median, and explain deviation from it, without referring to it as a starting point.

The tabloid-inspired Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Bill 2014 will apply a minimum 10-year non-parole period to two types of manslaughter. The first is a ‘single punch’ form of dangerous act manslaughter, and the second is for manslaughter committed by the offender in company of two or more others. The Bill highlights the absurd and unjust distortions caused by mandatory sentencing. If an accused is convicted of a one-punch murder, the court retains full sentencing discretion — from 2007 to 2012, four offenders were sentenced to non-parole periods of less than 10 years for murder. But if a jury returns an alternative verdict of single-punch manslaughter, a minimum non-parole period of 10 years applies unless ‘substantial and compelling reasons’ exist.

As Chris Berg of the Institute of Public Affairs put it, ‘Discretionary sentencing is a fail-safe mechanism to prevent laws conceived in the abstract from becoming absurdities in practice. … This principle is too important to abandon just because an election is coming up.’

ROBERT CORR teaches Legal Studies at the MacRobertson Girls’ High School.

(2014) 39(3) AltLJ 200
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