On 14th June this year, the High Court heard a Crown appeal against an incest sentence, an appeal that turns in part on a practice of Victoria’s Court of Appeal. Since 2007, the Victorian Court has sought submissions and made rulings on the topic of ‘current sentencing practices’ in particular classes of case, simultaneously with but separate from resolving particular sentencing appeals. A year ago, the Court of Appeal ruled that sentencing practices for incest were too low, but also dismissed a Crown appeal about a particular incest sentence. In his written submissions on appeal, Victoria’s Chief Crown Prosecutor said:

It is not apparent that any other State or Territory in Australia struggles with the question of consistency of sentencing in quite the manner experienced in Victoria. It is respectfully submitted that the correct role to be played by “current sentencing practices” should be decided. From what appears above, it might be said that there is not a united position in the Victorian Court of Appeal on the issue.

In the High Court hearing, he used sharper language, describing the Victorian approach as ‘inimical’ and ‘not permissible’. One exchange went like this:

KEANE J: But as I understand it, it seems to be said against you that the Director somehow accepted that there was this limit on the appeal and that the result is essentially something for which the Director is responsible.

MR SILBERT: Your Honour, this has been going on for something like 10 years. The Director has no option, when requested to make these submissions, but to make them. When the court refers to an uplift the Director cannot simply say, “I refuse to be involved in this uplift.” If the Director is lodging an appeal on the basis of manifest inadequacy he has to go along with it or else he has no basis for appealing. So it is a procedure that is imposed by the court and has been for something like 10 years. It has actually never been used by the Director effectively, I do not think, to produce any result in any concrete case.

There are dicta that emanate from various cases where the court considers this uplift and says well, sentencing is inadequate, and they have said it here, but they do not determine the dispute in issue between the parties. There is obiter, as referred to by Justice Ashley in Ashdown, that emanates from these discussions but they are more philosophical discussions than disputes between the Crown and an accused. The Crown is not complicit in the exercise – it did not invent the exercise – and it is dragged kicking and screaming into each one of these contests. I do not know whether that answers your Honour’s question.

KEANE J: It just does seem odd.

On Wednesday, the High Court unanimously upheld the DPP’s appeal, drawing on its recent ruling in Kilic (on the relevance of the maximum sentence) and holding that the decision to uphold a sentence that was based on then current, but wrong, sentencing practices, was ‘an error of principle’. Indeed, the plurality concluded that it ‘might’ be that the Court of Appeal’s practice ‘is inconsistent with [Victoria’s] Sentencing Act’.

The publication of the judgment coincided with the release by News Ltd of letters between Victoria’s then Chief Justice and Victoria’s Director of Public Prosecutions. Continue reading →