Baseline: Proposed Sentencing Amendment in Victoria

New laws, namely, the Sentencing Amendment (Baseline Sentences) Bill 2014 (the Bill), which are reported as proposed legislation leading to “tougher sentences for pedophiles and drug dealers” are currently before the Victorian Parliament having been introduced into the Legislative Assembly on 2 April 2014 and reaching second reading moved stage by 3 April 2014.

The "tougher" approach to sentencing laws, now before a deadlocked Victorian Parliament, create a new "baseline sentencing regime" in Victoria for crimes such as murder, sexual abuse of minors, and serious drug crimes and will, if enacted, create a new "median sentence level for serious crimes". The changes to the sentencing law are a key 2010 election promise made by the current Victorian Coalition Government.

Background and Key Points of the Proposed Legislation

The Bill provides baseline sentences for six serious crimes and requires the Victorian courts to increase the length of sentences imposed for those offences. The Bill amends the Sentencing Act 1991 (Vic), the Crimes Act 1958 (Vic), and the Drugs, Poisons and Controlled Substances Act 1981 (Vic) to establish baseline sentences for the offences of:

• Murder (25 years);
• Incest with one’s, or one’s de facto spouse’s, child under the age of 18 (10 years);
• Sexual penetration of a child under the age of 12 (10 years);
• Persistent sexual abuse of a child under the age of 16 (10 years);
• Culpable driving causing death (9 years); and
• Trafficking a large commercial quantity of drugs (14 years).

The intent ascribed by Victorian Government to the new baseline sentences is that they will become the "median" (the midpoint) sentence for the above listed offences. The expected effect of this being that, sentencing practices will adjust over time so that half the sentences imposed will be less than the baseline and half will be more. The baseline sentences apply to the actual sentence (known as the ‘head sentence’) imposed for an offence, rather than to the non-parole period. The Bill further provides ratios for minimum non-parole periods in relation to the new baseline sentences.

At this stage, the default commencement proposed for the Bill is 1 July 2015 although the Bill does provide for earlier commencement.

Objections, Responses and Differences

Those critical of the new baseline sentencing scheme in Victoria, it is reported, have indicated concern that the scheme will restrict judicial discretion to determine the most appropriate sentence for each individual case, and that the scheme will further complicate an already complicated sentencing process (see for example, Baseline Sentencing a Mistake - an LIV article of 3 April 2014).

Responding to the objections, the Government has stated the Bill does not introduce mandatory sentences and does not alter the "instinctive synthesis" process used by judges at present for sentencing. Judges, the government says,  will still be able to take into account the aggravating and mitigating factors and circumstances of individual cases as they do now when determining sentences up or down from the baseline.

The Attorney-General (the AG) in his second reading speech has said that the new laws are required because:

Using child sex offences as an example the AG points out that while these offences are considered to be among the worst kind of offences, the median sentences for these crimes are "unacceptably low". Baseline sentencing reform the AG says:

The AG has also indicated in his second reading speech that the baseline sentences provided by the Bill are higher than those recommended by the Sentencing Advisory Council (SAC) report because the model put forward in the Bill is different to the model recommended by the SAC.

A key difference is that the baseline sentences in the Bill, "apply to the actual sentence imposed for an offence, rather than to the non-parole period that must be served". Further, the Bill provides ratios in order to ensure that baseline sentences are reflected in the minimum non-parole periods set by the courts.

Other Jurisdictions and Baseline Sentencing

Other comparable minimum non-parole schemes, have been introduced in several Australian jurisdictions and also in other countries.

Example of such are:

• New South Wales - has a standard non-parole scheme that operates as the median term of imprisonment for certain offences.
• South Australia, the Northern Territory and Queensland - have statutory minimum non-parole periods for a range of selected serious offences.
• Overseas - England and Wales have system of staged guidelines administered by a Sentencing Council.
• New Zealand - has guidelines issued by the Court of Appeal which operate in conjunction with minimum non-parole periods for offences attracting lengthy sentences.

(For more detail see - Sentencing Amendment (Baseline Sentences) Bill 2014 Research Brief - provided by the Victorian Parliamentary Library at section 5).

Reaction to Current Trends to More Punitive, Longer Sentences

In "Sentencing overhaul needed to reduce crime and save taxpayer money" an article reporting on a paper ('From Arbitrariness to Coherency in Sentencing: Reducing the Rate of Imprisonment and Crime While Saving Billions of Taxpayer Dollars') by Professor Mirko Bagaric, Deakin University Dean of Law published in the Michigan Journal of Race and the Law, the following is quoted from the professors paper:

Professor Bagaric argues that the best way to reduce crime is to increase visible police presence which actually results in "a massive reduction in the expenditure of prisons" and allows more money to be spent on productive community services, such as health and education. The Professor points out that the current sentencing system has failed to reduce crime and the nation's "burgeoning imprisonment rate" is having "negative impact[s] on public revenue".

Interestingly he also  points to crime statistics from Victoria to demonstrate that the system is "profoundly failing" and further makes the equally relevant statement that:

A relevant point given the justification being used for the introduction of  "baseline sentencing" is largely that of community expectation.

What next for the Victorian Laws?

As the media has reported, Victoria's Lower House will be politically deadlocked until at least September 2014 which casts doubt on any controversial new laws, such as the baseline sentencing,  put forward by the Government. The opposition and the government will each have 43 votes on the floor of the Assembly (following the Geoff Shaw suspension until 2 September 2014). Any new laws opposed by the Opposition will only pass through the Assembly  with the Speaker's casting vote to support the Government.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

• Sentencing Amendment (Baseline Sentences) Bill 2014 as reported in the TimeBase LawOne Service.
• Sentencing Amendment (Baseline Sentences) Bill 2014 (RESEARCH BRIEF - No 6 May 2014,  Vic Parliamentary Library and Information Service, Department of Parliamentary Services)
• Baseline Sentencing a Mistake (LIV - 3 April 2014)
• Sentencing overhaul needed to reduce crime and save taxpayer money (PhysOrg - 2 June 2014)
• State Parliament to debate proposed new sentencing laws amid deadlock (Herald Sun - 12 June 2014)