Baseline sentencing and the High Court's implacable opposition to two-stage sentencing

The Sentencing Advisory Council currently has a reference from the Attorney-General regarding baseline sentences. The parameters of the government's idea of baseline sentences are spelt out in 5 bullet points:

Baseline sentences will apply for serious offences as defined in the Sentencing Act 1991 and for additional offences such as arson, recklessly causing serious injury, aggravated burglary and major drug trafficking.

Baseline sentences will provide the starting point for the court in determining the minimum sentence (i.e., non-parole period) to be imposed in cases where a baseline sentence applies, and will indicate the sentence that the parliament expects will be the median or mid-point of minimum sentences imposed for cases involving that offence.

In determining the non-parole period to be served by the offender, the court will be required to start from the baseline minimum sentence before applying aggravating or mitigating factors that would alter the non-parole period up or down from the baseline.

Where a baseline sentence applies, the appropriateness of a non-parole period is to be assessed on appeal primarily by reference to the applicable baseline sentence, rather than by reference to current sentencing practice.

The baseline sentencing regime is to operate so that, over time, the Court of Appeal will be able to determine whether or not the median levels of minimum sentences being handed down are in fact aligned with the baseline sentences specified by parliament and, if not, to require changes accordingly in sentencing practices.

Following yesterday's High Court decision in Muldrock v R [2011] HCA 39, one model the council presumably won't be looking to emulate is the New South Wales approach to standard non-parole periods.
The relevant parts of that regime are section 54A(2):

For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.

And 54B(2):

When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

There are also various procedural provisions that require the court to state its reasons for departing from the standard non-parole period and limit the factors the court may consider when deciding to do so (though in practice, the limitation seems largely ineffective, since it incorporates the entirety of the common law principles of sentencing).

Under the previous NSW approach to those provisions, a court was required to ask itself:

Are there reasons for not imposing the standard non-parole period?

The High Court, seemingly at the urging of the DPP, has now held that is wrong: Muldrock at [25]. The High Court instead held that the standard non-parole periods must be considered solely by reference to the objective circumstances of the offence and do not take into account aggravating or mitigating factors personal to the offender. But when determining the appropriate sentence, the court stated at [28] that:

Nothing in the amendments introduced by the Amending Act requires or permits the court to engage in a two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period.

Standard non-parole periods then form another yardstick which, like the maximum penalty, serve to guide the sentencing judge's decision making process, but do not allow the court to use the standard period as a 'starting point' which the court adds to or subtracts from.

This decision will surely be influential in the design of Victoria's baseline sentencing scheme. If the Attorney-General intends to press ahead with the scheme he has previously outlined, then he will need some form of legislative language that makes the baseline sentence the starting point. Given that Victorian judges have strongly adopted the High Court's preference for the intuitive synthesis model of sentencing, and staunch opposition to anything that resembles two-stage sentencing, this process will likely attract opposition from the very people who are expected to implement it. The clearest of clear language will be required to ensure it works as the Attorney-General has envisioned, and does not turn into one more factor to take into the sentencing matrix.