Last week the Sentencing Advisory Council released a comprehensive report, Sentencing Guidance in Victoria, containing recommendations for sentencing guidance in the state in response to terms of reference received from the Attorney-General on 24 November 2015.
"The reforms to sentencing recommended in this report are intended to promote consistency of approach in sentencing, and promote public confidence in the criminal justice system," Emeritus Professor Arie Freiberg, chair of the Sentencing Advisory Council, said.
"Many past changes have failed to do either. The report therefore calls for a number of other reforms that will make the Victorian sentencing system more consistent, clear, and coherent."
The report made three key recommendations, firstly the introduction of a suite of reforms to the guideline judgment scheme to replace baseline sentencing, which has been repealed.
The enhanced scheme is intended to facilitate greater use of guideline judgments, which can provide comprehensive guidance on the sentencing of all offences and offence categories, including offences sentenced in the higher courts or the Magistrates’ Court.
"The Council’s preferred model of sentencing guidance – in the form of an enhanced guideline judgment scheme – will create an evolving, inclusive, evidence-based, and judge-led process that can respond to changing community attitudes and legislative reforms," Professor Freiberg said.
Secondly, the Council recommends that numerical guidance on the appropriate level or range of sentences for an offence or offence category should be permitted within a guideline judgment.
This would allow the Court of Appeal to provide guidance on what sentences would be adequate, not simply to declare that sentencing practices are inadequate.
Thirdly, the Council recommends that, in particular circumstances, the Attorney-General should have the power to apply for a guideline judgment, without the need for an appeal case.
This power is intended to overcome the problem, for some offences, of sentencing judges being constrained by inadequate current sentencing practices and the Court of Appeal not having the opportunity to provide guidance on such practices, in the absence of a suitable appeal case.
The report calls for a number of other reforms that will make the Victorian sentencing system more transparent. These include the online publication of all sentencing remarks, a review of the sentencing schemes under the Sentencing Act 1991 (Vic), and further research on public opinion on sentencing.
The Council recommends against the introduction of jury sentencing on the basis of numerous and significant practical and procedural issues.
The report also contains recommendations on a ‘standard sentence scheme’, although it is not the Council’s preferred option.
Under the scheme, parliament fixes a ‘standard’ sentence that represents the sentence for a charge of an offence in the middle of the range of seriousness. This standard sentence would operate as a ‘guidepost’ to offence seriousness, and a court would be required to consider this new guidepost when sentencing.
If a standard sentence scheme is adopted, the Council recommends that it should only apply to offences for which there is evidence of significant problems that can be addressed by this form of sentencing guidance, and that the scheme should be combined with an enhanced guideline judgment scheme.