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.