Victorian Sentencing Reform: Focus on Culpable Driving Causing Death and Other Offences

In May this year (2017), the Victorian Parliament released the Sentencing Amendment (Sentencing Standards) Bill 2017 (VIC). This Bill, which is part of a set of reforms to the Victorian criminal justice system, proposes to repeal the baseline sentencing scheme, and instead provide for standard sentences for certain offences. Key reforms are in the areas of: driving offences causing death, sexual offences, murder and drug offences. If passed, the Bill will amend the Crimes Act 1958 (VIC), the Drugs, Poisons and Controlled Substances Act 1981 (VIC) and the Sentencing Act 1991 (VIC).

General Purpose

The general purpose of the Bill is to incorporate the recommendations of the Sentencing Advisory Report to repeal the system of baseline sentences, currently encapsulated in sections 5A and 5B of the Sentencing Act 1991, and instead provide for standard sentences. Attorney-General Martin Pakula said that judges have some discretion to deviate from the prescribed standard sentence, but must provide reasons if they do. Mr Pakula defines the standard sentences as: 

Under the new Bill, a new definition of standard sentence will be inserted in section 3(1) of the Sentencing Act 1991. The period which is specified as the standard sentence for any offence is the sentence that is in the middle of the range of seriousness, and takes into account the objective factors affecting the relative seriousness of the offence committed. The court will also be obliged to take the standard sentence prescribed as one of the relevant factors in sentencing. The Advisory Council's chairman, Emeritus Professor Arie Freiberg said:

Driving offences

The Bill purports to repeal s 318(1A) of the Crimes Act 1958, which currently provides for a baseline sentence of 9 years for culpable driving causing death. Instead, the Bill will insert a provision for a standard sentence of 8 years for culpable driving causing death. (s 35) The recommendations come after the Sentencing Advisory Council’s report into guideline schemes, but also may be a response to the Bourke St incident where a terrorist drove a vehicle into pedestrians. As the standard sentence is a midpoint in the range of seriousness, courts may have the discretion to hand down a higher or lower sentence based on mitigating or aggravating factors. The definition of culpable driving causing death will remain the same, as provided by section 318(2). This definition provides that a person will be guilty of this offence if they consciously disregard a substantial risk of death or grievous bodily harm of another person and fail to observe a reasonable standard of care.

Murder

The new standard sentence for murder is proposed to be 25 years. If the court is satisfied beyond reasonable doubt that the victim was a custodial officer or emergency worker on duty and at the time the accused was aware of this fact, the standard sentence will be 30 years.

Drug offences

Drug offenders can also expect to have baseline sentences repealed through the proposed repeal of sections 4(1) and 71(2) of the Drugs, Poisons and Controlled Substances Act 1981.

Sexual offences

The Bill amends the Crimes Act 1958 to provide a number of new standard sentences in addition to the standard sentences of 10 years for rape. Some key standard sentences are: 10 years for sexual penetration of a step child under the age of 18 years, sexual penetration of a step child under 18 years, and sexual penetration of a child under 12 years of age.

Current status 

The Bill is an attempt to implement the Sentencing Advisory Council’s report to improve the guideline judgment scheme, and enhance transparency and meet community expectations. The Bill has now passed the Legislative Assembly and has been introduced in the Legislative Council awaiting Second Reading debate on 8 June 2017.

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Sentencing Amendment (Sentencing Standards) Bill 2017, Bill, Explanatory Materials and Second Reading Speeches as published on LawOne.

Crimes Act 1958 (VIC), as published on LawOne.

Drugs, Poisons and Controlled Substances Act 1981 (VIC), as published on LawOne.

Sentencing Act 1991 (VIC), as published on LawOne.

Attorney-General, 'Biggest Ever Shake Up To Target Violent Crime' (media release), 24 May 2017.

Sentencing Advisory Council, 'Sentencing Guidance in Victoria' (report), June 2016.

Beau Donelly, 'Controversial baseline sentencing scheme dumped,' (The Age), 10 June 2016.