Commonwealth specified discounts

The obligation to quantify the discount for an early guilty plea in Sentencing Act 1991 s6AAA has clearly troubled Victorian judges. From the early comments about trying to unscramble an omelette to complaints about it being an artificial exercise, it is clear that judges are uncomfortable with the deviation from the intuitive synthesis required by the legislation. However, its worth remembering that s6AAA isn't unique. Section 21E of the Commonwealth Crimes Act (not to be confused with the Commonwealth Criminal Code), requires judges to quantify the discount for promised future cooperation. This quantification then becomes relevant as a kind of 'ceiling' on an appellate court if the offender fails to provide the promised cooperation.

Encouragement or coercion

In Victoria, sentence indication schemes have evoked a range of attitudes from lawyers and the judiciary. Available in the Magistrates Court since 1992 without any legislative backing, the scheme was given a legislative footing and expanded to the higher courts as a pilot project in 2008 following a Sentencing Advisory Council report. In 2010, the council report on the pilot recommended continuation of the sentence indication scheme and the government implemented that recommendation by repealing the sunset provision that previously hung over the sentence indication clauses.

Despite this brief history of gradual acceptance of sentence indication processes, the higher Victorian courts have been generally cautious about sentence indication. They have cited concerns about judicial independence, the risk of plea bargaining and the involvement of the judge in an accused's plea decisions. Guariglia v R [2010] VSCA 343 is the latest example of this caution.

Abolition of sentencing double jeopardy

One of the major reforms introduced by the Criminal Procedure Act 2009 was the abolition of the sentencing principle of double jeopardy. This principle historically acted as a fetter on Crown appeals against sentence and, in the words of the then-Attorney General:

This existing common-law consideration can distort sentencing practices because the sentence imposed by the Court of Appeal will not reflect the sentence that it considers should have been imposed in the first place. This can reduce the guidance provided by Court of Appeal sentences to other courts and the effectiveness of DPP appeals against sentence.

Further, this approach does not take into account other relevant and counterbalancing policy considerations, such as the interests of the community and the victim, in the courts sentencing offenders to appropriate sentences.

In DPP v Karazisis, Bogtstra and Kontoklotsis, specially convened court of five considered the operation of ss287, 289 and 290 of the Criminal Procedure Act 2009.

The meaning of 'sentence'

Ludeman, Thomas & French v R is the first five-judge bench decision on the meaning of the new appeal provisions in the Criminal Procedure Act 2009. The court held that the right to appeal 'a sentence' and the provisions governing when the court may grant leave or allow the appeal, apply to:

• The recording of a conviction;
• The individual sentences;
• Any concurrency or cumulation orders associated with individual sentences; 
• The non-parole period;
• An aggregate sentence;
• Superannuation orders;
• Restitution orders; and
• Compensation orders.

However, the provisions do not apply to what is conventionally called the 'total effective sentence'.

Corporate identity, statutory interpretation and keywords

Monday 29 November 2010 has been a busy day for Victorians. After a long wait, John Brumby conceded defeat in the Victorian state election. However, while politics tragics may have been waiting most of the day with bated breath, criminal law geeks received a feast of decisions from the Court of Appeal. Three in particular deserve special mention.

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 limited value of specified sentence discounts

In Sharkey v R [2010] VSCA 273, one of the recent flurry of non-precedential appeals, Ashely JA remarked that

... this is yet another instance in which, despite an early plea of guilty and accepted remorse, a sentencing judge made a s 6AAA declaration which reveals, on its face, a minimal discount in the sentence passed in recognition of the plea. The revealed discount is indicative sentencing error. But it is unnecessary to decide whether, on that account alone, the sentencing discretion should be re-opened; because the respondent accepts that the sentence passed on the count of armed robbery was outside the range.

In contrast, the Court of Appeal in Scerri v R [2010] VSCA 287, the Court rejected a ground of appeal that the judge erred by imposing a discount of only 20% for a plea of guilty. The Court stated (footnotes omitted):

Victim impact statements and judicial sensitivity

The last 24 hours has seen the Herald Sun and affiliated newspapers run an article on the drama that unfolded during the sentencing hearing of Leon Borthwick. The article is available here.

The Facts
On 16 November 2008, Mark Zimmer was killed when he was struck by a van driven by Leon Borthwick. Borthwick was charged with murder and after a trial, was convicted by a jury of manslaughter. Yesterday, Kornelia Zimmer sought to read parts of her victim impact statement. Borthwick's counsel, Carmen Randazzo objected to several lines on the basis of relevance. Justice Katherine Williams agreed and directed that certain passages in the statement be admitted.

Today, Kornelia Zimmer took to the airwaves to share the omitted portions of her statement with 3AW's listeners.

Public punitiveness and judicial minimalism

WCB v R is an interesting example of the judiciary's willingness to engage in the public debate concerning sentencing standards (summary of reasons available here).

The bulk of the judgment concerns the following ground of appeal:

The learned sentencing judge erred in sentencing the appellant on the basis that ‘The community would expect you to be imprisoned for a lengthy period.

Statements of this nature are quite common in sentencing remarks. As the judgment records at [36], courts have often spoken of the community's justifiable concern about sexual abuse of children, and the need to respond to such concern with appropriately severe penalties.

Despite this straightforward point, the court spends 15 pages responding to one reasonable simple ground of appeal. The analysis includes: