Fran Dalziel

Crown Prosecutor

The Standard Sentencing Scheme

November 2013

THE MODERN PROSECUTOR

Sentencing: Expectations. Standards. Responsibilities. .

Sentencing Amendment (Sentencing Standards) Act 2017

• Repeals the baseline sentencing legislation

• Sets the “standard sentence” for twelve offences

• Adds the “standard sentence” as a consideration which must be taken into account under s5(2)

• Sets out that the “standard sentence” is the “sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.”

• Requires the sentencing court to not have regard to sentences imposed in respect to the relevant offence, unless they were imposed taking into account the standard sentence.

• Makes clear that the “standard sentence” is but one of the factors to be taken into account and that the SSS is not intended to limit what matters are otherwise required or permitted to be taken into account in sentencing

• Explicitly retains the “instinctive synthesis” approach to sentencing

• Requires reasons for the sentence imposed, which include reference to the SS and an explanation of how the sentence imposed relates to the standard sentence

• Makes certain exceptions to the SSS

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Commencement • The provisions launching the Standard Sentence Scheme

commenced on 1 February 2018. They apply in respect to the relevant offences if committed on or after 1 Feb 2018 [Section 162(2)]

• Where a relevant offence was committed between dates which span 1 February 2018, it is to be treated as having been committed before that date [Section 162(4)]

• Where a SSO was committed before 1 February 2018 a court “may take into account the effect on current sentencing practices” by sentences imposed pursuant to the SSS. [Section 162(3)]

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Which Offences Offence Standard Sentence

Murder

30 years - Where Victim Custodial or Emergency Worker on duty and

Accsed knew or was reckless as to that fact

25 years – in all other cases

Rape 10 years

Sex Pen of Child U12 10 years

Sex Pen of Child U16 6 years

Sexual Assault of Child U16 4 years

Sexual Activity in presence of Child U16 4 years

Causing child under 16 to be present during

sexual activity

4 years

Persistent Sexual Abuse of Child U16 10 years

Sexual Penetration of child or lineal

descendant

10 years - if at the time of the offence the victim was under 18

Sexual Penetration of step-child 10 years - if at the time of the offence the victim was under 18

Culpable Driving Causing Death 8 years

Trafficking LCQ 16 years - unless offences constituted by an attempt to traffick) 4

Exceptions

• Offender under 18 at the time of the offence – this applies

regardless of jurisdiction in which the matter is heard. • Offences is heard and determined summarily - only applies to

IOTS; Sexual Assault of Child U16, Sexual Activity in presence of Child U16, Sexual Activity in presence of Child U16

• The offences of conspiracy, incitement, or attempt to commit

a SSO, are not SSOs.

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Section 5A - Standard Sentence Scheme

(1) If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the standard sentence for the offence, then—

(a) the offence is a standard sentence offence; and

(b) the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

(2) An offence of conspiracy to commit, incitement to commit or attempting to commit a standard sentence offence is itself not a standard sentence offence.

(3) For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined—

(a) without reference to matters personal to a particular offender or class of offenders; and

(b) wholly by reference to the nature of the offending.

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Section 5B Sentencing for a standard sentence offence

(1) This section applies in relation to sentencing an offender for a standard sentence offence unless—

(a) the offender was under the age of 18 at the time of the commission of the offence; or

(b) the offence is heard and determined summarily; or

(c) section 162 makes this section inapplicable because of when the offence is alleged to have been committed.

(2) In sentencing an offender for a standard sentence

offence, a court— (a) must take the standard sentence into

account as one of the factors relevant to sentencing; and

(b) despite section 5(2)(b), must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.

(3) Subsection (2)— (a) does not limit the matters that a court

is otherwise required or permitted to take into account in determining the appropriate sentence for a standard sentence offence; and

(b) is not intended to affect the approach to sentencing known as instinctive synthesis.

(4) A court that sentences an offender for a standard sentence offence must at the time of doing so state the reasons for—

(a) imposing that sentence; and (b) any non-parole period fixed in accordance

with section 11 as part of that sentence if that period is shorter than the period specified in section 11A(4)(a) , (b) or (c), as the case requires.

(5) As part of its reasons under subsection (4), a court must refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence.

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What the Prosecutor Must Do

In addition to the usual requirements and duties of a prosecutor, when an offence before the Court is an SSO, the prosecutor must: • Ensure that where the SSS applies this has been

brought to the Court’s attention; • Provide assistance to the Court as to the approach to

sentencing for a SSO, as well as any other legislative requirements; and

• Make submissions as to the assessment of the relative seriousness of the offending which is before the court, taking into account only the objective factors of the offending.

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What the Prosecutor Must Not Do

• Prosecutors should not make submissions about whether the standard sentence should be imposed in a particular case, or whether a sentence higher or lower than the standard sentence is appropriate.

• Where the prosecutor’s lawful submissions by necessary implication demand a sentence which is higher or lower than the standard sentence, the prosecutor may acknowledge that implication if asked by the Court.

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Applying the Scheme

• The Court should take the standard sentence into

account, as one of the factors relevant to the “intuitive synthesis” of the sentencing decision.

Sentencing Act 1991 ss 5(2)(ab) and 5B(2)(a). • The standard sentence is like the other factors in s5(2) in

that it does not have primacy in the exercise of the discretion. The conclusions by the High Court in DPP v Dalgliesh in respect to s5(2)(b) can also apply to s5(2)(ab).

DPP v Dalgliesh [2017] HCA 41, [9], [68], [79]

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Applying the Scheme The SSS does not require that the standard sentence be imposed unless there are reasons not to, nor that it be treated as a starting point. That this is so is made clear by:

– the explicit retention of the “intuitive synthesis” approach, and

– the application of the decision of Muldrock (2011) 244 CLR 120 in which the High Court considered the comparable scheme in NSW. The High Court in Muldrock adopted the language of ‘guidepost’ to describe a standard sentencing scheme that exists in New South Wales - see [25], [27]

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Applying the Scheme - CSP

• The requirement to take into account current sentencing practices remains in the Sentencing Act.

• Current sentence practices can mean both the numerical value of past sentences, and “guidance as to the identification and application of relevant sentencing principles” [R v Pham (2015) 256 CLR 550, [26]].

• The Court can take into account non-SSO cases insofar as they relate to sentencing principles, but not the actual sentences imposed (s5B(2)(b)).

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Reasons for Sentence

• Section 5B(4) of the Sentencing Act 1991 requires the

Court, when sentencing, to state the reasons for imposing that sentence.

• Section 5B(5) requires the reasons for sentence to

“refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence.”

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Reasons for Sentence

The requirement under s5B(5) could be met by the Court:

1. Identifying in the sentencing remarks what the standard sentence for the offence is; and

2. Noting that the SSS requirements pursuant to s5B(2) do not limit the factors which can and should otherwise be taken into account and is not intended to affect the usual “intuitive synthesis” approach to sentencing (s5B(3); and

3. Making an assessment of the relative seriousness of the offending which is before the Court, taking into account only “the objective factors affecting the relative seriousness of that offence”; and

4. Setting out all the factors and principles which have been taken into account in the decision.

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Reasons for Sentence

• The Court is not required to detail the various reasons why it has not

imposed the standard sentence.

• Remarking upon why the sentence imposed departs from the standard

sentence for an offence can easily give the appearance of a two-staged or

mathematical approach to sentencing.

• Canvassing all the relevant sentencing factors will itself explain how the

sentence imposed relates to the standard sentence.

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Assessing the seriousness of the offending

• The SSS does not require the Court to consider what some notional or hypothetical mid-range (taking into account only the objective factors) offence might look like.

• By way of comparison, the existence of the maximum penalty

does not require a judge to imagine a hypothetical offence which might receive the maximum.

• Rather, the Court considers the case before it, forms a view as

to the seriousness of the offending and sentences taking into account that assessment and all other relevant facts and principles.

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What are the “objective factors”?

Section 5A(1)(b) indicates that “the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.”

Section 5A goes on:

(3) For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined—

(a) without reference to matters personal to a particular offender or class of offenders; and

(b) wholly by reference to the nature of the offending.

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What are the “objective factors”?

Some factors which are clearly objective would be:

– For a LCQ trafficking charge, the quantity of drug – Did the Accused mutilate the body? – For culpable driving, how fast was the car going?

How much alcohol in the driver’s blood? – Did the sexual offending occur in the context of

additional violence and degradation? – Role in the offending

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What are the “objective factors”?

• Questions of pre-meditation or planning, provocation, or racial prejudice as a motive are often relied upon as factors going to the gravity of the offending, but each of those necessarily involves consideration of the offender’s state of mind when committing the offence.

• The question is whether they are “matters personal to a

particular offender or class of offenders” rather than “the nature of the offending.” Each case will necessarily be different.

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Non-Parole Periods

• Section 11A of the Sentencing Act addresses non-parole periods where one or more of the offences before the court is a SSO.

• The minimum non-parole period that the Court must impose,

unless the Court considers that it is in the interests of justice not to do so, is: – 30 years if the relevant term is life imprisonment; – 70% of the sentence imposed if the term is a term of

20 years or more; or – 60% of the sentence imposed if the term is a term of

less than 20 years.

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Non-Parole Periods

• The ‘relevant term’ is the head sentence imposed for the standard sentence offence or the total effective sentence where one or more of the sentenced offences was a standard sentence offence, not the maximum penalty for that offence.

• If the Court is setting a new single non-parole period because at the

time of the new sentencing an offender is already serving the non-parole period on another sentence, then s11A applies. Sentencing Act 1991 s 11A(5).

• The reference in s11A(2) to “a standard sentence offence” is to be

read as singular or plural as the case may be – see Interpretation of Legislation Act s37

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Non-Parole Periods

• The percentages set out in s11A are not inconsistent with the “usual” ratio of NPP to head sentence.

• In the event that submissions are made by defence counsel

that the ‘interests of justice’ call for a shorter non-parole period, the submissions made in response will depend on the circumstances of each case.

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