Speaking out against recent claims published in The Age that “courts defy minimum terms”, Victorian Supreme Court Chief Justice Marilyn Warren AC has penned an explanation of how new laws actually come into effect.
In a statement published on the Supreme Court website, the Chief Justice took down media allegations that the Victorian bench had shown “judicial defiance”, “refusal” and “reluctance to apply a new law”. The law in question relates to minimum terms of imprisonment for gross violence offences that came into effect in 2013.
The Chief Justice pointed out that it takes time for changes in sentencing practices to be reflected in the criminal justice system. She added that the sentencing laws did not have retrospective effect and could not apply to any case before 2013.
“Sentencing is not a mechanical, mathematical exercise,” CJ Warren said.
“It takes time for sentencing practice to develop, as judges work through very wide-ranging facts in each of the hundreds of cases before the higher courts,” she said.
Using the case of Ravenhorst as an example of how a judge would approach sentencing under the law and the situations in which the mandatory sentencing law applies, CJ Warren went on to explain the legislative definition of 'special reason'.
Where the law is applicable, offenders can only be sentenced according to the minimum terms of imprisonment unless it can be shown that a ‘special reason’ applies. The Chief Justice said that a special reason could include certain cases that involve mental illness, intellectual disability, acquired brain injury and other disorders, as well some cases involving young offenders or where the case involves a “substantial or compelling” reason.
“The first [basis] for a judge to find a special reason is if the judge is satisfied that the offender being sentenced has assisted, or given an undertaking to assist, authorities in the investigation or prosecution of another offence,” the Chief Justice said.
"In the gross violence case of Ravenhorst, that special reason arose, [where] the offender made a statement and gave an undertaking to give evidence against his co-offender. The prosecution told the Supreme Court judge this was of “considerable assistance” (to the police and prosecution) and accepted that special reason arose," she said.
The Chief Justice also pointed to two recent applications to the Victorian Supreme Court regarding mandatory minimum terms to show that judges are receiving appropriate guidance for their work in the state's "new sentencing territory".
"The few cases that have been decided show that the process is operating in an orthodox way. They show the courts are interpreting and applying the laws as they were made and passed by the Parliament.
"Judges are going about their sentencing work in a careful, methodical way according to well established legal principles," she said.
Yesterday Victorian Bar voiced its support of the position taken by CJ Warren.
Victorian Bar president Jennifer Batrouney QC said Victoria’s case history demonstrated that judges apply the state's laws in their entirety.
“Sentencing is a complex task and judges need flexibility to do justice,” Ms Batrouney said.
“Independence of the judiciary is a foundational principle of our constitutional democracy. The impartiality of the judiciary, as evidenced by the court’s application of the sentencing laws, is vital to the confidence of the public in a fair and just legal process.”
Ms Batrouney renewed calls to give the courts more room to exercise judicial discretion, adding that the Victorian Bar has previously expressed concerns about the state’s mandatory and baseline sentencing regime.
“It is the court’s role to determine sentences according to the evidence. The more sentencing discretion is constrained, the less the ability to fit the particular facts and the particular circumstances of the offender to the justice of the case,” she said.