The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on ‘ranges’ of sentences and the evaluation of current sentencing practice. The respondent plead guilty to four charges of incest and was cumulatively sentenced  to five years and six months imprisonment. The sentence for charge one, which related to committing incest and impregnating his 13-year old stepdaughter, whose pregnancy was subsequently terminated, was three years and sixth months. The DPP appealed against both the sentence for charge one and the cumulative total imposed, contending that both were manifestly inadequate. While the VSCA noted that the sentence on charge one could be seen as lenient, and that the range was so low that it revealed an error in principle as being not proportionate to the objective seriousness of the offence or moral culpability of the offender here, the Court ultimately held that in light of what were the then current sentencing practices, it was within the range open to the sentencing judge, and that the Court of Appeal was constrained by those sentencing practices to dismiss the appeal.

The High Court unanimously allowed the appeal. The joint judges (Kiefel CJ, Bell and Keane JJ) held that the VSCA erred in treating a range of sentences established by current sentencing practice as decisive of the appeal (at [2]). After noting the sentencingfactors outlined in s 5(2) of the Sentencing Act 1991 (Vic), and reiterating that these considerations cannot be applied mechanically, but rather must be balanced and weighed as a whole as part of the ‘instinctive synthesis’ (see at [4]ff), the joint judges emphasised that this weighting was a matter of judgment (at [7]):

While the instinctive synthesis must be informed by each of the factors listed in s 5(2), the extent to which each factor bears upon the case is inevitably a matter for judgment. The process of instinctive synthesis thus allows a measure of discretion to the sentencing judge. The discretionary nature of the judgment required means that there is no single sentence that is just in all the circumstances. Nevertheless, it is well understood that a sentence may be so clearly unjust, because it is either manifestly inadequate or manifestly excessive, that it may be inferred that the sentencing discretion has miscarried. The question raised for determination by the Court of Appeal in the present case was whether the sentence imposed on the respondent was manifestly inadequate.

Each factor must be taken into account as a single factor in that balancing, and no one factor is to be treated as controlling that exercise (at [9]).

After reviewing the history of these proceedings (at [12]ff) and the Court of Appeal’s reasoning (at [26]ff), the joint judges held that the Court of Appeal’s use of two earlier similar cases as the ‘worst category’, from which the present sentence could be seen as ‘mid-level’ seriousness was an ‘unorthodox’ approach: first, because imposing a just sentence is not a mechanical or arithmetical exercise, and second, because it misunderstood the meaning of ‘worst category’, in that it is the maximum sentence for the offence that invites comparisons between the worst possible cases and the case before the Court, rather than those worst cases fixing the meaning of ‘worst category’ (see at [45]–[46]).

Rejecting the respondent’s suggestion that the Court of Appeal did not treat current sentencing practices as the single determining factor in dismissing the appeal (see [48]), the joint judges then emphasised that doing justice in sentencing required treating each case and offence individually, and that achieving consistency in sentencing cases of similar seriousness, while an important aspect of the rule of law, does not require ‘adherence to a range of sentences that is demonstrably contrary to principle.’ (at [49]–[50]).

While the Court of Appeal was correct to note that the range of current sentencing practices here did not reflect the gravity of the offending, and was thus a misapplication of principle, it declined to correct the anomaly in that range, which the joint judges noted was largely due to the ‘gravitational pull’ of an earlier problematic decision (see at [53]–[58]). The Court of Appeal’s acknowledgement that there had been a misapplication of principle that had affected the range used by the sentencing judge indicated manifest inadequacy and warranted appellate intervention (at [60]), and there was no good reason for the Court to not correct the error which it had recognised (at [63]).

The joint judges then criticised the Court of Appeal’s ‘bifurcated’ approach to sentencing — attempting to ‘avoid perceived unfairness to the respondent, while at the same time allowing the Court of Appeal to correct, for the future, the unjustifiably low level of sentences for offending of this kind’ (at [64]) — rejecting the founding assumption that an offender who pleads guilty can expect to be sentenced in accordance with current sentencing practices: ‘The only expectation that an offender can have at sentence is of the imposition of a just sentence according to law. The Court of Appeal’s assumption as to the basis on which the plea of guilty was entered does not warrant a different view.’ (at [65]). Again, the joint judges reiterated that an offender, whether or not he or she pleads guilty, can expect to be sentenced in accordance with the considerations outlined in the Act (see at [66]ff).

Finally, their Honours turned to the VSCA’s residual discretion to not interfere with the sentence imposed by a primary judge, even where an error has occurred, and rejected the respondent’s contention that the DPP’s arguments before the VSCA meant that it had acquiesced to determining the appeal with reference to the range of current sentencing practices (see [71]). This contention misconstrued the DPP’s arguments before the VSCA, and nothing in those arguments ‘contributed’ to the VSCA’s own decision to bifurcate the appeal in its reasons (see at [72]–[75]).

Ultimately, the joint judges concluded that given the VSCA’s own conclusion that a higher sentence was warranted given the maximum penalty for the offence, the gravity of this offence, the respondent’s culpability and the impact on the complainant, the Court erred in not allowing the DPP’s appeal, and s 5(2) and the current sentencing practices factor did not constrain it from acting to remedy that manifest injustice (at [76]). The Court remitted the matter to the VSCA for determination of the appeal against sentence (at [77]).

Gageler and Gordon JJ agreed with the orders of the joint judges.Their Honours emphasised that the factors in s 5(2) are diverse, and no particular factor must be assessed in a particular way or accorded specific weight; rather the process is of identifying and balancing relevant factors, and making a judgment about the appropriate sentence in a particular case (at [79], and see [82]). Gageler and Gordon JJ also noted that the VSCA’s approach to current sentencing practices that treated them as a ‘band’ within which judges were ‘able’ to sentence appeared to be rooted in cases preceding the High Court’s decision in R v Kilic [2016] HCA 48, and manifests the error identified in that case: current sentencing practices are not to be treated as ‘fixing quantitative boundaries within which future sentences were required to be passed’ (at [81]). Applying this directly to the present case, Gageler and Gordon JJ stated (at [84]):

The Court of Appeal’s treatment of current sentencing practices as fixing quantitative boundaries within which future sentences were required to be passed evidently infected its consideration of manifest inadequacy in the present case. Having accepted that a significantly higher sentence was warranted in the circumstances of the case ‘but for’ current sentencing practices, the Court of Appeal was not correct to end its task by treating those current sentencing practices as a complete answer to the question whether the sentence imposed was manifestly inadequate. It was required to determine that question, and to sentence, according to law. The earlier decisions of the Court of Appeal to the contrary are wrong and are not to be followed or applied.

Their Honours concluded by noting that a guilty plea, while one factor, does nothing to change the basic approach to sentencing, namely to determine a just sentence according to law that is appropriate to the case before the court (at [85]).