VLA's response to Rapke's global challenge

The Sentencing Act 1991 specifies a number of factors a court must have regard to when sentencing for an offence, the first three of which are:

(a)  the maximum penalty prescribed for the offence; and
(b)  current sentencing practices; and
(c)  the nature and gravity of the offence; and

In several cases through 2008 - 2010, the Court of Appeal has expressed concern about the adequate of current sentencing practices, in light of the prescribed maximum penalty for the offence. The Court has consistently stated that, in the interests of procedural fairness, the Court cannot hear arguments about the adequacy of sentencing practices for the first time on an appeal.
The theory being that the expected punishment is a factor a person takes into account when deciding whether to plead guilt, and to radically change existing practices is unfair to a person who pleaded guilty in expectation of a particular punishment (this reasoning informs the power of courts to give sentence indications, and was expressly acknowledge in R v Winch [2010] VSCA 141 at [23]).

In response to those invitations, the DPP has announced a "global current sentencing practices challenge" to the offence of aggravated burglary. A global CSP challenge is unlikely to have the same health benefits as the ubiquitous global corporate challenge, which seems to have succeeded as a marketing move if nothing else. Indeed, given the anxiety evidenced by Victoria Legal Aid's response, it may have completely the opposite effect.

VLA has produced a set of submissions in response to the DPP's aggravated burglary push, which have now been reported on in The Age (as an aside, I wish The Age would stop its ridiculous practice of repeating that Rapke has denied being in a sexual relationship with Diana Karamicov, every time it runs a story mentioning either of them. The practice merely entrenches a habit public figures have to refuse to respond to rumours, because of the risk that the denial of the rumour will be re-run at every opportunity, as though to give credence to the original rumour).

Fundamentally, VLA takes the view that

• sentencing judges are bound by current sentencing practices and therefore the director should not invite them to depart from those practices
• the proper venue for arguing about the adequacy of current practices is the Court of Appeal,
• ideally, even if the Court of Appeal does agree to modify current practices, those changes shouldn't affect the particular accused in question, and
• even the Court of Appeal may be bound by current sentencing practices and the matter may only be capable of resolution by Parliament.

VLA endeavours to read down and distinguish the various pronouncements by the Court of Appeal as part of an attack on the validity of any campaign by the Director to systematically increase current sentencing practices. Fundamentally, it seems that VLA wants arguments about adequacy of practices to take place in the Court of Appeal, based on material appropriate to that case (or perhaps waiting for a suitable vehicle in which to make the arguments). While the subject-matter is serious, this argument seems almost comical if implemented in full, as it would require counsel for a respondent, on a DPP appeal, to argue forcefully against the court's reluctance to raise the issue of sentencing standards for the first time on appeal. Alternatively, it wants the outcome from Winch to apply generally - that is, the court makes a guiding pronouncement about adequacy of standards, but in a way that doesn't harm the particular appellant or respondent. Any such statement would be obiter and non-binding, leaving courts in the same position they are currently in. It is also inconsistent with general principles of appellate practice, where changes in the law established on an appeal apply in that case and all others.

The VLA submission also notes that the Court's current statements, and the DPP challenge, rely strongly on the maximum penalty. It asserts, by reference to earlier cases, that the maximum penalty is reserved for the most serious offence, and argues that it becomes increasingly less relevant as you move away from the most serious category. I have two problems with this approach.

First, I'd like to know what VLA thinks is 'the most serious' example of aggravated burglary. The highest sentence I've found is 12 years in R v Propsting [2009] VSCA 45, which involved a home invasion with intent to rape a child (such conduct was also have been a breach of an intervention order, but that really pales into insignificance in the circumstances). The problem with finding a 'worst case' for aggravated burglary is to somehow avoid other conduct that is also criminal, because punishing for the presence of that other conduct would likely amount to double punishment. And at 12 years, that is about half the maximum penalty. How much worse do things need to be to get closer to the maximum penalty?

Secondly, the maximum penalty is currently the only lever Parliament has to pull to communicate its view of the seriousness of an offence it creates. The question then is how the courts are meant to use that lever. Between Callaway's lighthouse metaphor (steer by the maximum, but don't aim at it) and the High Court's somewhat cryptic guidance (the maximum penalty provides a yardstick and (separately?) courts should pay attention to it because Parliament has legislated for a maximum penalty), the use and relevance of the maximum penalty is difficult to identify precisely. Is it primarily a jurisdictional limit? When there is a conflict between the guidance provided by the maximum penalty and the guidance provided by current sentencing practices, which prevails? Is there, as McCallum J suggested in R v Barlow [2010] NSWCCA 215, 'a linear relationship between the maximum penalty and the objective seriousness of the offence', or was Callaway JA correct in DPP v Aydin & Kirsch [2005] VSCA 86 that 'it is wrong to assume that there is an arithmetical progression from zero to 25'? Part of VLA's submissions suggest that the problem of consistently inadequate sentences may be one that only Parliament can address. Given that Parliament has already set the maximum penalty at 25 years and so, if the maximum penalty provides guidance on the relative seriousness of the offence compared to other offences, then Parliament has already said it is among the most serious offences in the criminal law. The next step up is life imprisonment, which seems very difficult to justify, mandatory minimums, which are manifestly unjust, or some form of legislative tariff, creating a standard sentence. Legislating tariffs would, however, be a massive undertaking and likely be met with howls of protest from the courts and the legal profession as cutting across time-honoured concepts like the intuitive synthesis, judicial discretion and the need for a sentence to fit the offender and the offence.

At the end of the day, sentencing involves balancing numerous competing considerations. The current conflict between VLA and the DPP concerning current sentencing practices is novel in its particular manifestation, but ultimately involves the same balancing of incommensurables that sentencing courts engage in every day. At one level, the dispute will involve working out how much weight to give to current sentencing practices and how much to give to the guidance provided by the maximum penalty. Whatever the outcome at first instance, I expect a string of appeals related to the Director's global CSP challenge that will take years to work their way through the appellate courts (and almost certainly, all the way to the High Court). So stay tuned for the follow up post resolving this issue, some time in 2013.