Standard Sentences: What They Mean and How They are Applied

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Ophelia HollwayThe article Standard Sentences: What They Mean and How They are Applied is written by Ophelia Hollway, Senior Associate, Doogue + George Defence Lawyers.

Ophelia is currently based at our Melbourne office. She regularly represents clients at Magistrates’ Courts as well as other metropolitan and regional courts of Victoria.

Since becoming a lawyer, Ophelia has worked exclusively on matters related to crime and family violence. She previously worked for Melinda Walker Criminal Law and Victoria Legal Aid handling state and Commonwealth cases, as well as volunteered overseas to assist in the preparation of capital defense cases.

Sentencing BookThe Standard Sentence Scheme was introduced in Victoria by the Sentencing Amendment (Sentencing Standards) Act 2017 (Vic) in February 2018. This amendment essentially abolished the former Sentencing Amendment (Baseline Sentences) Act 2014 (Vic).

The new Act increased the number of serious offences from seven to eleven, with a twelfth introduced through the Sentencing Amendment (Emergency Worker) Act 2014 (Vic) some nine months later.

The purposes and principles of sentencing can be found under section 5(2) of the Sentencing Act 1991 (Vic). The Crimes Act 1958 (Vic) and the Drugs, Poisons and Controlled Substances Act 1981 (Vic) were amended accordingly to keep up with the changes in sentencing.

In December 2019, the new Victorian Sentencing Manual was updated to reflect the case of Brown v The Queen, in which the Victorian Court of Appeal interpreted and explained the concept and application of the ‘Standard Sentence Scheme’.

The ‘Standard Sentence Scheme’, as then Attorney-General Martin Pakula told Parliament, was to ensure:

The most effective legislative mechanism to provide sentencing guidance to the Courts in a way that promotes consistency of approach in sentencing offenders and promotes public confidence in the criminal justice system.

Prior to the new Act coming into effect, 4 out of 5 Supreme Court of Appeal Justices ruled that the old Act was ‘incapable of being given any practicable operation’ and was ‘incurably flawed’ because it removed a ‘Judge’s Discretion’; interfering with other relevant sentencing principles and factors.

How Standard Sentences Work

The Standard Sentence applicable to certain offences is essentially an additional factor that the Court must address when considering an appropriate sentence. The Court cannot apply ‘current sentencing practices’, unless such practices involve the Standard Sentence Scheme criteria.

When passing sentence, a judge must state the reasons for a particular sentence being imposed.

List of Offences Standard Sentences
Murder 25 years
Murder of custodial officer or emergency worker on duty 30 years
Rape 10 years
Sexual penetration of a child under the age of 12 10 years
Sexual penetration of a child under the age of 16 6 years
Sexual assault of a child under the age of 16 4 years
Sexual activity in the presence of a child under the age of 16 4 years
Causing a child under the age of 16 to be present during sexual activity 4 years
Persistent sexual abuse of a child under the age of 16 10 years
Sexual penetration of a child or lineal descendant under the age of 18 10 years
Sexual penetration of a step-child under the age of 18 10 years
Culpable driving 8 years
Trafficking in a large commercial quantity of a drug of dependence 16 years

The ‘Standard Sentence’ equates to 40% of the maximum sentence for the offence. The only exceptions are for sentences which carry ‘life imprisonment’ as their maximum. Therefore, judges now have two ‘legislated guidelines’ which must be taken into account (maximum sentences and standard sentences). This is in addition to all other matters in mitigation.

As explained by the Judicial College of Victoria, it is anticipated that, over time, the period of imprisonment served for offences included in the ‘Standard Sentence Scheme’ will increase and eventually current sentencing practices will reflect statistics to be considered for such offences.

The former Director of Public Prosecutions and now Justice of the Victorian Supreme Court His Honour Justice John Champion made the following observations of the standard sentencing scheme:

  1. The standard sentence scheme is valid and capable of practical operation.
  2. It preserves the operation of the instinctive synthesis (essentially, where a judge considers all factors and comes to a conclusion as to the appropriate sentence).
  3. The standard sentence for an offence is a legislative signpost.
  4. The standard sentence for an offence is not to take a predominant role in the sentencing exercise.
  5. It is just one factor for the court to take into account.
  6. In following the legislative requirement to take current sentencing practices into account when sentencing a standard sentence offence, the court may only have regard to sentences imposed under the standard sentence scheme.

The difference between the abolished ‘Baseline Sentence Legislation’ and ‘Standard Sentence Scheme Legislation’ is that the latter will have practical operation in the higher courts.
Date Published: 8 April 2021

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