: First ‘baseline sentence’ highlights problems

First ‘baseline sentence’ highlights problems

Robert Corr
Victoria

The Sentencing Amendment (Baseline Sentences) Act 2014 (Vic) 
commenced on 1 July 2015, and the Supreme Court has already been forced to grapple with its arcane provisions. In R v IRT [2015] VSC 372, Justice Lasry considered ‘the first case to which these new provisions apply’. He allowed the Criminal Bar Association to make submissions as amicus curiae, referred to a Sentencing Advisory Council report on calculating median sentences, and ultimately produced a 92-paragraph appendix to the judgment, dealing solely with the baseline sentencing issue.

His Honour observed that the new process appeared to require a two-stage analysis that was ‘difficult to reconcile with descriptions of the process of instinctive synthesis.’ The crux of the judgment was the nature of a ‘median’ value (at [141]):

It must be accepted as a matter of mathematics, that so long as half of all sentences are at or above, and half of all sentences are at or below a particular figure, the distribution of sentences above and below that point do not affect the median. Therefore sentencing in a manner compatible with Parliament’s intention does not require that sentences below the median are scaled in proportion to the baseline sentence.

Having determined that the offending conduct falls into the lower half of the range of seriousness of the relevant charge, the sentencing judge must continue to apply the other provisions of the Sentencing Act 1991 (Vic) in the usual way.

Acknowledging this would result in ‘an artificial sentencing pattern’ in which there is ‘a significant gap between median sentences and sentences in cases falling below the median’, Justice Lasry noted that mandatory minimum sentences also distorted sentencing outcomes. ‘While it is an unusual result, it is not one which is so absurd as to cast doubt on the construction of the provisions.’

ROBERT CORR is a Legal Studies teacher at the 
Mac.Robertson Girls’ High School.
(2015) 40(3) AltLJ 214
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