A Sentencing Guidelines Council for Victoria: report

25 May 2018

On 25 May 2017, the Victorian Government announced that it would introduce legislation in 2018 to establish a sentencing guidelines council, a body with a diverse membership of stakeholders that could develop and issue sentencing guidelines for use by the courts. In July 2017, the AttorneyGeneral asked the Sentencing Advisory Council (the Council) to conduct broad consultation and advise him on the most suitable model for the sentencing guidelines council in Victoria, with particular reference to the features of sentencing guidelines councils in the United Kingdom. The Council was required to provide its advice by 29 March 2018. This report constitutes that advice.

Between July and October 2017, the Council conducted preliminary research and consultation, meeting with stakeholders from a number of key criminal justice organisations. In November 2017, the Council published A Sentencing Guidelines Council for Victoria: Issues Paper (the issues paper) to form the basis of formal consultation. For some of the issues discussed in that paper, the Council offered a proposal for stakeholders to comment on, and for other issues, the Council invited stakeholder views without making a proposal. The Council made a call for submissions on matters raised in the issues paper, and also published an online survey covering six key issues.

Following publication of the issues paper, the Council received and published expert legal advice about the constitutional validity of certain features of the proposed guidelines council (Appendix 2). The Council asked stakeholders to provide their responses to the questions in the issues paper in light of that constitutional advice.

The Council also conducted a series of consultation events in late November 2017, including a judicial symposium, a discussion forum with legal stakeholders and an open community discussion panel. At each of these events, the Right Honourable Lord Justice Treacy and Professor Julian Roberts, both members of the Sentencing Council for England and Wales, shared their experiences about the introduction and operation of sentencing guidelines in the United Kingdom.

This report makes 22 recommendations about the most appropriate features of the sentencing guidelines council in Victoria, as well as the sentencing guidelines it creates. This report does not address the threshold question of whether a sentencing guidelines council should be introduced in Victoria. The Council was not asked to provide such advice, and the government has already committed to the introduction of the sentencing guidelines council.

Some of the recommendations in this report relate to issues that were not discussed in the issues paper, as those issues emerged during consultation. In addition, there has been a substantial change in the recommended composition of the guidelines council. The Council notes that stakeholders’ responses to other questions (such as the binding nature of sentencing guidelines) may have been informed by, and premised on, the composition proposed in the issues paper. For these reasons, and given the significance of the reforms to sentencing law that are proposed, the Council suggests that it will be essential for the government to conduct further consultation on any draft legislation that implements the Council’s recommendations.

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