R v IRT

THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 0081 of 2015

THE QUEEN
v
IRT	Accused

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2015
DATE OF SENTENCE:	30 July 2015
CASE MAY BE CITED AS:	R v IRT
MEDIUM NEUTRAL CITATION:	[2015] VSC 372

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CRIMINAL LAW - Sentence - Two charges of indecent act with child under 16 - Four charges of lineal incest - Offences committed over two-year period - Sentencing Act 1991 - Amendments apply to one charge of incest only - Plea of guilty - Remorse - Prospects of rehabilitation - Serious sexual offender - Baseline offence falls below the median - Mandatory minimum non-parole period - 6AAA of the Sentencing Act - Total effective sentence 6 years 8 months – Non-parole period 4 years.

CRIMINAL LAW – Sentence – Effect of Sentencing Amendment (Baseline Sentences) Act 2014 - Baseline sentencing – Parliament’s intention – Task of a sentencing judge – Compatibility with provisions – Historic median sentence for incest – Use of historic median cases – Comparative analysis – Instinctive synthesis consistency with baseline provisions – Whether case at, above or below median a question of proof beyond reasonable doubt – “Scaling” of sentence above and below the median – Application to the instant case.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Champion SC and Ms F Dalziel	The Office of Public Prosecutions
For the Accused	Mr T Marsh	Victoria Legal Aid
For the Criminal Bar Association of Victoria (as amicus curiae)	Ms L Taylor QC

HIS HONOUR:

[IRT] on 12 June 2015 you pleaded guilty in this Court to an indictment containing six offences. The first two charges alleged that you committed an indecent act with a child under the age of 16 years. The remaining four charges are that you committed the offence of incest with the same child in two different forms. The victim of your conduct in each case is [D] who is your natural daughter and is the third of nine children born to you and your wife [W].

The Director of Public Prosecutions has filed the indictment in your case with this Court rather than in the County Court because as a result of the date on which you committed the offence which is charge 6, that charge falls to be dealt with under the new regime of sentencing enacted in the Sentencing Amendment (Baseline Sentences) Act 2014. As I understand it, this is the first case to which these new provisions apply. I will from time to time refer to these amendments as the “baseline sentencing provisions”.

The maximum penalty for committing an indecent act with a child under the age of 16 years is 10 years imprisonment. The maximum penalty for incest is 25 years imprisonment. In addition for that latter offence and in relation to charge 6 only, pursuant to s 44(1A) of the Crimes Act 1958 the baseline sentence is 10 years imprisonment if I am satisfied beyond reasonable doubt that the victim was, at the time of the offence, under the age of 18. There is no contest that she was.

It is now my duty to sentence you for these charges to which you have pleaded guilty.

In addition to these reasons for sentence I will separately publish my consideration of the application of Part 2 of the Sentencing Act 1991 in particular dealing with the effect of ss 5A & 5B. That will inform in more detail the basis on which I have imposed the sentence that I will shortly describe and the extent to which that sentence has been affected by the amendments.

Circumstances of offending

The circumstances of your offending are set out in detail in the Prosecution Summary of Facts which was tendered and is exhibit A on the plea.

An overview of that summary reveals that you and your wife [W] have nine children. The complainant in this case is your daughter and she is the third eldest and is now aged 14 years.

These offences were committed over a period of some two years between late 2012 and 15 November 2014 when the police were advised. The evidence suggests that you regretted your actions and from time to time stopped them for several weeks but then succumbed to the temptation to resume them.

You began your course of offending in 2012 following an incident where you apparently accidently touched your daughter’s breast whilst you and she were sitting on a couch under a large blanket watching television. That having happened, you deliberately left your hand in that position. This is the first incident which is relevant to the representative charge 1.

Some weeks later, also whilst watching television, you again touched her on the breast but this time deliberately and under her clothing. Your hand remained touching her for some time. That conduct constitutes charge 1 being an indecent act with a child under the age of 16 and is representative of three instances of this type of conduct. Subsequent to this incident you touched her in a similar manner on other occasions. This is the third aspect of charge 1.

Charge 2 is also a representative charge of four instances where you committed an indecent act with your daughter involving you touching her genital area. Your behaviour had escalated to touching her on the vagina whilst again sitting on the couch under the blanket watching television. The first occasion you did this relevant to charge 2 was when you touched her on the front of her vagina over her clothes. The second time you were touching her breast and then moved your hand down her torso to where you could feel her pubic hair. That is also relevant to charge 2.

On each occasion your daughter moved her leg attempting to stop you but you persisted. You told police that after this incident when the boys had gone to bed your said to your daughter you were sorry and that you would try to desist in the future. A period of weeks or months passed without incident but according to your account you were overwhelmed by the urge and started touching her again.

Your conduct progressed to touching her vagina under her clothes. One evening one of your sons was out and after watching television for some time, another son went to bed. You and your daughter remained on the couch under the blanket. You described your hand then wandering and touching her over her clothes. She crossed her legs but you uncrossed them and thought to yourself “why stop?”. You then put your hand under her clothes touching her vagina. The eldest son then came home and you stopped. That incident is also relevant to charge 2.

You regularly got into your daughter’s bed and touched her and penetrated her vagina with your fingers. She shared a room with three of her sisters and had a lower bunk. You would check on the girls after they had gone to bed and then sat on the side of the complainant's bed chatting to her, and then asked her to move over and lay down next to her on her bed. You touched her stomach and then her vagina under her clothes. The first occasion you did this in her bed you did not penetrate her vagina. It is this incident which is relied on by the prosecution as charge 2.

Charge 3 is a separate occasion in late 2013 or early 2014 when you penetrated your daughter’s vagina, touching her clitoris with your fingers.

On occasions you discussed what you had done with her and apologised saying that you wanted to stop. You told her you would make it your life’s mission to stop but then continued.

Charges 4 and 5 occurred on 1 November 2014, after you had told your daughter you would make it your life's mission to stop. You had put a condom on before going in to her bed. You then got your daughter to lie on the floor and spread her legs and then lay on top of her. You penetrated her vagina with your finger, as usual and this is charge 4.

You then managed to penetrate her vagina with your penis. The complainant apparently said to you, “You said you would make it your life's mission”, but you did not stop. That conduct is at the basis of charge 5.

Whilst they are two separate acts and thus two offences, they occurred at virtually the same time.

Charge 6 occurred on 15 November 2014 when you went into your daughter’s bedroom to wake her up. You then got into the bed and touched her breast and vagina and penetrated her vagina with your fingers.

Your conduct came to light on that particular day. That occurred because earlier in September 2014 your daughter had a romantic relationship with a young man. It soon became apparent to him that she was suffering the consequences of what you had been doing to her. Ultimately he and his mother were instrumental in alerting your wife, who in turn went to the police on 15 November 2014.

On that same day, and without the need to be arrested, you also went to the [P] police station and, as it were, handed yourself in as the offender. You went on to make full and complete admissions about your conduct. The prosecutor accepted that in your record of interview you provided particulars of incidents, including the facts of charges 3 and 4, which your daughter had not described and therefore, but for your assistance, in all likelihood may have remained unknown or undisclosed. That stands to your credit and the prosecutor, Ms Dalziel, accepted that such conduct was a sign of your genuine remorse for what you had done.

Victim Impact Statements

I have been provided with victim impact statements from your wife [W] and your son [S].

Your wife has suffered significantly and the impact of your conduct on her has been pronounced. She feels responsible and is struggling with the knowledge that she was unaware of what you were doing. Obviously she trusted you and relied on you. Now, as a result the family is fractured and the responsibilities on her have grown considerably. That has also taken its toll on her.

Your 14 year old son’s statement makes it clear that he is sad, angry and confused by what happened but optimistic about the future.

By any standard your actions have had a significant effect on your daughter and the rest of your family. That effect will be with them for a long time and for your wife and children will be difficult to deal with. I have taken these victim impact statements into account in fixing the sentence I should impose on you.

Nature and Gravity of the Offences

Although there is no violence or the threat of it by you against your daughter, these are very serious offences. Your counsel properly accepted that on your behalf in acknowledging that an immediate custodial sentence was required. Over a two year period you exploited the trust of your child to satisfy a sexual urge you found difficult if not impossible to control. However, you had plenty of time to think about what you had done and reflect on the wrongfulness of it. You knew what you were doing was wrong but you simply could not control yourself. In the simplest of terms, you should have tried much harder.

The prosecutor submitted that you engaged in what she described as emotional blackmail by placing the responsibility on your daughter to end your conduct by her disclosing it to somebody. You did that by telling her that you would not deny the conduct if she did disclose it and if she did so it would affect not only her and you, but the whole family. It was, you said to her, a matter for her to decide. Mr Marsh took issue with the prosecutor’s characterisation of emotional blackmail and alternatively suggested your approach showed an ambivalence about your conduct. I reject that explanation. In my view what you said to your daughter was simply a sign you did not have the strength to desist from your conduct. Phrases like “emotional blackmail” are not helpful and I do not conclude that appropriately describes your attitude.

Charges 1 and 2 being representative charges serves to highlight that in relation to that conduct there was a pattern and that what occurred were not isolated events.

Obviously in my view, and given the importance of the relationship between a father and daughter, your efforts to control yourself were nowhere near sufficient. She did what she could to resist you but she was in no position to stop you. On occasions she was asked by you for forgiveness and she offered it but it had little effect. As I have already mentioned, the best that can be said about your approach is that you apparently told her that if she reported you, you would not deny your conduct. Ultimately when it was reported you were true to that promise. You were right that the whole family would be affected and the responsibility for that it completely with you.

Ultimately it was only the knowledge that your wife had reported what had occurred to the police that was sufficient to bring this terrible conduct of yours to an end. You did do the right thing with an immediate confession.

Both general and specific deterrence are significant in this case. Incest must be publicly denounced as thoroughly unacceptable conduct which will result in very significant punishment for anyone who engages in it. Young children are not a possession to be exploited though far too often that is what happens. Children are to be protected and cared for. You failed in that regard.

As far as you are concerned there is a need to specifically deter you from any future conduct of this kind. As you know you will be going to prison and for some time. I accept your counsel’s submission that that in itself will contribute to the deterrent effect on you.

Personal Circumstances

You were born on 21 June 1970 and are now aged 45 years.

You are a man without any history of offending against the criminal law and therefore, until now, you were entitled to be described as a man of good character. As Mr Marsh has submitted on your behalf your good character was not something you exploited in order to commit these offences.

You were supported during the plea by the presence of members of your family and friends who were present in court. Three of that group have provided supportive written references to which I will later refer.

According to your counsel, you are the eldest of three children and your brother and sister are aware of your offending. Indeed your younger sister has provided a supportive written reference. She expresses her confidence in your prospects of rehabilitation.

Your education lasted until year 9 and then you found jobs in retail and sales. You have worked or studied for all of your adult life. You pursued training in information technology and web design. You pursued some religious training but your completion of that was not recognised due to these matters coming to light. You seem to have had difficulty in maintaining continuing employment and you describe yourself as “self-sabotaging” your employment efforts.

You and your wife met in 1991 and married in July 1992 and as I have said there are nine children of the marriage.

As a result of these matters being revealed and as a result of an intervention order you have been excluded from the family home though you have contact with all but two of your children including the complainant in this matter. You now live at the premises of a Mr [M] and he has also supplied a written reference about you. He believes your offending is out of character for you and expresses concern at the loss of the friendship that he has with you if you were to be imprisoned.

Finally, Pastor [A] has also supplied a reference. He has known you for some time and then became re-acquainted with you at the [X] Christian Centre. He speaks well of you, describing you as compliant and good natured and appears willing to continue to support you in the future.

Medical and mental state

You have Type 2 diabetes which has created various medical and physical complications. You are also medicated with an anti-depressant due to panic attacks you have suffered.

The state of your mental health can be summarised as a diagnosed anxiety disorder, major depressive disorder and dependent personality disorder. You do not have a major mental illness of a schizophrenic nature. Your pathology is described as acute and in need of assessment by a psychiatrist.

Those conclusions were made by the forensic psychologist Dr Dion Gee who reported on your condition in June 2015 and gave evidence during the plea. He said you had reasonable insight into your offending and wanted to better understand why you did what you did.

Dr Gee also suggested that your inevitable incarceration would affect you more heavily than a person in normal mental health and he explained that there are logistical difficulties with the provision of the kind of psychological support and treatment service that you need apart from dealing with your offending behaviour. At present such services would not be available to you. As a result of the recent disturbances in the prison system, it appears that the system is in “chaos” and that situation is likely to remain for between three and six months. Dr Gee expects that you will withdraw and you will also be on a protection unit.

Your counsel relied on this matters as mitigating the sentence because of the likely severity of the sentence on you as opposed to the impact on a person without, what Mr Marsh described as, your complex and compromised psychological functioning. The prosecutor accepted that the legal principles that Mr Marsh relied on[1] are enlivened but that unlike other cases, your condition is not at the acute end of the scale. That contention was not in dispute
[1]R v Verdins (2007) 16 VR 269.

I accept Mr Marsh’s submission and take those matters which were described in detail in Dr Gee’s report and the evidence he gave into account. I also take into account the more difficult circumstance that you will face in serving your sentence as a protection prisoner.

I would make the observation that one of the important aspects of the kinds of intervention that Dr Gee has described you needing is to reduce the prospects of any further offending. During your period of custody the authorities should do everything practically within their power to assist you in that respect.

Remorse and the plea of guilty

There is no issue that you pleaded guilty to the indictment at the earliest practical opportunity. As I have earlier described you immediate co-operation with police was significant and your conduct from then on was indicative of the remorse you felt for what you had done. Your plea has obviously spared your family the trauma of giving evidence including by your daughter which no doubt would have further dislocated and traumatised your family.

Your counsel has made the point that your plea of guilty was entered with all the associated uncertainty surrounding the baseline sentencing regime which has been the subject of considerable debate during the plea.

Your remorse for what you have done is illustrated not just by your plea of guilty but your willingness to undertake such treatment as is necessary to give you a proper insight into your offending and prevent it occurring again.

Prospects of rehabilitation

So, with that background of your mental state, I must consider your prospects for rehabilitation. You do not have a history of prior offending. Dr Gee has formed the view that your prospects for rehabilitation are good but, as I have noted, dependent in part in further psychological and/or psychiatric assistance. You have expressed a willingness to undergo any counselling and therapy that is available aimed at preventing a repetition of this conduct. The difficulty with that, which is beyond your control, is that it is likely such assistance will not be available to you in custody at least for the time being.

However, in your favour and with those qualifications I have concluded that with appropriate assistance, your rehabilitation prospects are good. You seem to now have some level of insight into the wrongfulness your offending. Surely, given the price you now must pay, you will resolve never to commit such offences again.

Serious Sexual Offender

I have determined to impose a sentence of imprisonment on each charge to which you pleaded guilty. Each offence is one to which clause 1 of schedule 1 of the Sentencing Act 1991 applies. The result is that after I have imposed a sentence of imprisonment on charges 1 and 2, for charges 3 to 6 you are to be sentenced as a serious sexual offender.

I am required to consider protection of the community as the principal purpose for which the sentence is imposed. It is open to the court to impose a disproportionately high sentence on you in those circumstances but the prosecutor does not submit I should do so and I do not do so. The Act also provides that terms of imprisonment imposed for these offences must be served cumulatively unless I otherwise direct, which I will do.

I do direct that the fact that you are sentenced as a serious sexual offender be entered in the records of the Court pursuant to s 6F of the Sentencing Act 1991.

Conclusion

As I have described in Appendix 1 which immediately follows these reasons for sentence, having heard submissions on the effect of the baseline sentencing provisions, I have concluded that the sentence on charge 6 should fall below the median sentence for this offence. Notwithstanding the submissions of the Director I have also concluded that that being the case, I will not inflate the sentence on count 6 beyond what would normally be appropriate in accordance with usual sentencing practice for this offence.

I have also taken the principle of totality into account in determining the total effective sentence that you will serve. I have, as that principle requires, determined what I consider to be the appropriate sentence for the totality of your conduct.

I have concluded that the sentence I will impose on you will be as follows:

·Charge 1 being the offence of committing an indecent act you will be sentenced to a period of 2 years’ imprisonment;
·Charge 2 being the offence of committing an indecent act you will be sentenced to a period of 2 years’ imprisonment.
·Charge 3 being an offence of incest you will be sentenced to a period of imprisonment of 4 years;
·Charge 4 being an offence of incest you will be sentenced to a period of imprisonment of 4 years.
·Charge 5 being an offence of incest you will be sentenced to a period of imprisonment of 5 years.
·Charge 6 being an offence of incest you will be sentenced to a period of imprisonment of 4 years and 6 months.

The base sentence will be the sentence on charge 5. I direct that 4 months of the sentence on charges 1 and 2; 4 months of the sentence on charges 3 and 6; and 4 months of the sentence on charge 4 be served cumulatively with the sentence on charge 5. That results in a total effective sentence of 6 years and 8 months.

I must fix a minimum period of imprisonment that you must serve before you are eligible for release on parole. Pursuant to s 11A of the Sentencing Act there is now a mandatory minimum non-parole period I must fix when, as in this case, you are being sentenced for two or more offences one of which is a baseline offence. That minimum period is 60% of the relevant term which in this case means the total effective sentence. Whether I think that is appropriate given your prospects of rehabilitation and your need for psychological intervention is of no consequence. The legislation requires that the minimum term be “at least” 60% when the total effective sentence is less than 20 years’ imprisonment as it is.

I therefore fix a minimum term of 4 years.

Pursuant to s 6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty the total effective sentence I would have imposed on you would have been 8 years with a mandatory minimum to serve before parole of 4 years and 10 months. I make that declaration bearing in mind the observations of Kaye J (as he then was) in R v Flaherty.[2] In my view the artificiality of such a declaration is, if anything, accentuated by the baseline sentencing provisions.
[2] (2008) VSC 270 – I particularly refer to the following passage from His Honour’s reasons:
Taken literally, s 6AAA requires me, as an hypothetical exercise, to ignore the plea of guilty, in order to determine what sentence I would have imposed on the prisoner if he had not pleaded guilty. Self-evidently, it is intellectually highly artificial, if not impossible, to carry out that exercise. Firstly, it is difficult to imagine how the prisoner could have pleaded not guilty, having made full and detailed admissions of his guilt in his record of interview. Secondly, if the prisoner had pleaded not guilty, that would necessarily have impacted on my findings of remorse, on my findings of cooperation, and on my views as to rehabilitation.

I declare that your pre-sentence detention is a period of 18 days including this day and direct that such period be reckoned as a period of imprisonment already served pursuant to s 18 of the Sentencing Act 1991.

I have already made the forensic sample orders requested by the prosecution and not opposed by you.

As you have been sentenced for two Class 1 registrable offences under the Sex Offenders Registration Act 2004 you are a registrable offender with a life long reporting period. The Court will now provide you with a written notice outlining your obligations pursuant to s 50 of that Act.

Appendix 1 - Baseline Sentencing
Introduction

In this matter, as I have described in my reasons for sentence, charge 6 on the indictment was committed by the accused on 15 November 2014. The result is that charge falls under the effect of the changes to the Sentencing Act 1991 brought about by the Sentencing Amendment (Baseline Sentences) Act 2014. Those new provisions came into effect for offences committed after 2 November 2014.

Since this is the first matter in either this Court or the County Court where a sentencing judge has been called upon to impose a sentence affected by new provisions, it is appropriate for me to describe in some detail how they have been applied and whether and in what manner they have affected the sentence I have imposed on the accused in this case.

In circumstances where the reasons for the sentence imposed are recited by me to the accused man directly, there is no utility in this unusual part of my reasons being dealt with in that manner. The accused would be unlikely to follow the reasoning and so I publish this separately as an appendix but nonetheless with the intention that it will illuminate how the provisions have affected this case.

I am very grateful for the assistance I received in this matter from all counsel. The Director of Public Prosecutions, Mr John Champion SC, was good enough to appear on the hearing of the plea with Ms Dalziel of counsel. Mr Tim Marsh, for the accused, also made very useful submissions on the effect of the provisions over and above a well prepared plea on behalf of the accused to which I have already referred. Ms Lesley Taylor QC was granted leave to appear on behalf of the Criminal Bar Association of Victoria as amicus curiae and I am grateful to her and to the Association for their assistance.

So, the sixth charge on the indictment to which the accused has pleaded guilty is a charge of incest which occurred on 15 November 2014 – the day the matter was later reported to police. The baseline sentence for the offence of incest under s 44(1A) of the Crimes Act 1958 is 10 years if the court is satisfied beyond reasonable doubt that the victim was, at the time of the offence, under the age of 18. On the basis of the material before me and the accused man’s plea of guilty I am so satisfied.

Key provisions

The key provisions of the amended legislation are in s 5A of the Sentencing Act 1991 which provides:

(1)If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the baseline sentence for the offence, then—
(a) the offence is a baseline offence; and
(b)the period specified as the baseline sentence for the offence is the sentence that the Parliament intends to be the median sentence for sentences imposed for that offence in accordance with this section.

(2)Sentencing practices must give effect to the intention set out in subsection (1)(b).

(3) In sentencing an offender for a baseline offence, a court—
(a)must do so in a manner that is compatible with Parliament's intention as set out in subsection (1)(b); and
(b)for the purpose of doing so, must disregard any provision of this Part (including the requirement to have regard to current sentencing practices) if not to do so would be incompatible with that intention; and
(c)subject to paragraph (b), is required or permitted to take into account any matters that a court is required or permitted to take into account in sentencing an offender.

Note
Matters that the court is required or permitted to take into account may, depending on the circumstances of the case, include the entering of a plea of guilty or the presence of any other mitigating factor or of any aggravating factor. Taking those matters into account contributes to the court's consideration of what is an appropriate sentence to impose in the case before it compared with a case for which the median sentence would be appropriate. The outcome of that consideration will determine whether the sentence imposed should be equal to, or the degree to which it should be greater or lesser than, the baseline sentence.
(4)A court that sentences an offender for a baseline offence must at the time of doing so state the reasons for imposing that sentence including its reasons for it being equal to or greater or lesser than (as the case requires) the baseline sentence for the offence.
(5)In imposing a total effective sentence in respect of 2 or more sentences, one or more of which is for a baseline offence, a court must sentence in accordance with this section for any baseline offence included in the total effective sentence.
(6)A reference in this section to a baseline offence includes being involved in the commission of a baseline offence.
(7)This section does not apply in relation to sentencing for a baseline offence if—
(a)the offender was under the age of 18 at the time of its commission; or

(b) the offence is heard and determined summarily.

The other significant provision is the inclusion of the baseline sentence as one of matters which the court must take into account in sentencing an offender in s 5(2)(ab) of the Sentencing Act 1991.

In this case, in relation to charge 6, I am therefore required by the Sentencing Act 1991 to:

·Have regard to the baseline sentence for incest being 10 years imprisonment;
·Engage in a sentencing practice which gives effect to Parliament’s intention that 10 years imprisonment be the median sentence imposed for incest in accordance with s 5A; and
·Sentence in a manner compatible with Parliament’s intention that 10 years imprisonment be the median sentence imposed for incest in accordance with s 5A.

This is a highly unusual set of provisions. The standard approach of the law is to set out principles, rules and process which are applied by the courts to the individual cases which come before them. The role of the court in sentencing is the consistent application of those rules and process, not to produce an overall statistical result. However, these provisions begin with the Parliament’s wish to achieve a statistical outcome which the courts are directed to give effect to as they sentence individuals for particular offences including, in this case, incest. It is an outcome which is dependent on, or at least influenced by, the actions of others involved in unrelated offending, not simply by way of comparison of facts and circumstances but in forming a cohort which will determine what sorts of facts and circumstances fall at the midpoint.

There is no precedent in Victoria or elsewhere which deals with provisions of this kind. In the circumstances I can do no more than seek to adopt an approach which most closely meets the requirements of the law on the basis of information available to me.

Parliament’s intention

In order to apply the provisions it is necessary to understand Parliament’s intention.

I begin by simply noting at this stage that in the early part of his submissions, the Director of Public Prosecutions spent some considerable time supporting the proposition that the regime of baseline sentencing does not represent an interference with concepts of instinctive synthesis in the sentencing process. I have significant doubt as to whether that is so and I will return to this topic later.

The median is the middle term (or where the series contains an even number of figures the average of the middle two terms) of a series arranged in order of magnitude. A median sentence is derived by listing a set of sentences in order of magnitude and then finding the middle value. The result is that 50% of the sentences will be at or above the median level and 50% will be at or below the median level.

It is not possible to calculate a median without first defining the series of values for which the median is to be calculated. While the legislation provides certain rules around the inclusion and exclusion of sentences and values given to certain sentences in calculating a median, it provides no temporal indication which would define the series of sentences from which a median would be calculated, other than it will only include those sentences imposed under these provisions and therefore only encompasses sentences for offences committed on or after 2 November 2014.

There are two possible interpretations in this context. The first is that the Parliament intends the courts to maintain the baseline sentence as the median sentence for sentences imposed under the new provisions at any given point in time including when I impose this sentence. The second is to treat the series as all sentences to which the provisions apply, being an infinite set containing known sentences (of which this will be the first) and future, as yet undetermined, sentences.

The first interpretation would lead to some disturbing results in practice. For example, the first and second sentences imposed for any baseline offence would have to be for the baseline sentence for that offence regardless of whether the individual cases were at the highest or lowest end of seriousness. This would also distort all future sentences.

The second interpretation is consistent with the literal meaning of the words of the section, but acknowledges that the notion of the median in this context is concerned with a longer term cohort of sentences. The Crown contends that this is correct approach.

The second interpretation finds support in the broader context of the provisions. Section 5A(2) requires that sentencing practices give effect to Parliament’s intention. Sentencing practice is a notion concerned with multiple sentences over time. Section 5A(3) requires the individual sentencing judge to sentence in a manner compatible[3] with Parliament’s intention, rather than requiring the individual sentence to maintain a specific median at all times. Finally, support for the latter interpretation is found in the second reading speech of the Attorney General which included the following statement:

This requires sentencing practices to change so that, over time, for sentences to which the baseline sentence applies, half the sentences imposed for the offence should be less than this figure, and half should be greater. (emphasis added) 3 April 2014

[3]That is, capable of existing with such an intention.

On this basis, the second interpretation is to be preferred. I therefore proceed on the basis that Parliament’s intention is that the baseline sentence is to form, after a period of time, the median sentence for the cohort of sentences to which the baseline sentencing provisions apply and will apply, meaning that half of those sentences will be at or above the baseline and half will be at or below the baseline figure.

Task of the Sentencing Judge

The question is then how a sentencing judge in an individual case is to sentence in a manner compatible with that intention.

For any offence there will be a range of sentences imposed as a result of the differing facts and circumstances of each case and the application of the Sentencing Act 1991 to those facts. The distribution of those sentences is represented in sentencing statistics and the median for that data set can be identified.

The baseline sentencing provisions direct the courts to sentence in such a manner as to create a distribution of sentences which results in a particular median. The only imperative is for half of those sentences to be at or above the baseline and for half to be at or below the baseline sentence. In reaching its sentence the court will be drawing a conclusion about whether the case before it should fall at, above or below the median. This is necessarily an exercise in placing a sentence relative to other sentences. However, because the set of sentences in question is, at this point, a future as yet undetermined cohort, I will inevitably be making a determination based on some element of assumption, prediction or speculation as to what that set will look like.

The difficulty of such a task, the fact that it is most unlikely to produce reliable results, and the general incongruity between such a task and the ordinary judicial function, tell against such an approach. The Director submitted it is not necessary for the court to envisage the gamut of sentences which may be imposed in future.[4] Nevertheless it is difficult, taking the words of the Act on their face, to reach a different conclusion.
[4]Prosecution General Submissions on the Baseline Sentencing Provisions [73].

The relevance of the historic median

The Director submitted that having established the historical median sentence, the court may consider the collection of cases in which offenders received terms of imprisonment at or near the historic median term to give the court an understanding of where the instant case falls in the spectrum of possible offending in the same way as it would look at comparable cases to come to an understanding of where the instant case sits in current sentencing practice.[5]
[5]Prosecution General Submissions on the Baseline Sentencing Provisions [68]-[69].

This approach finds support in the extrinsic material. The Attorney-General in his second reading speech stated:

The sorts of instance of the offence concerned that have in the past incurred a sentence of median length—that is, at the midpoint of relevant sentence imposed for that offence—should in future receive a sentence equal to the baseline sentence.[6]

[6]Victoria, Parliamentary Debates, Legislative Assembly, 3 April 2014, 1276 (Robert Clark MP).

However, the Director submitted that the Court should not make a specific finding of where the present case sits in respect of the historic median.[7] The Criminal Bar Association, in their submission, describe this as the ‘historical median transposition method’[8] and submit that it should be specifically rejected.[9]
[7]Prosecution Submissions in Reply [6].
[8]Submissions as to the Baseline Sentencing Provisions Made by the Victorian Criminal Bar Association Appearing as Amicus Curiae [22].
[9]Ibid [37].

Using a finding as to where the instant case sits with respect to historic median sentences in order to transpose that to a distribution with a new pre-determined median would only achieve the result which Parliament intends if patterns of offending and offenders remain consistent from whatever ‘historical’ period is chosen to determine a median, into the future. This assumes that society remains static; that no progress is ever made in reducing the worst instances of particular crimes; and that no significant social factors change patterns of offending. Indeed it assumes that the introduction of the baseline sentencing provisions themselves have no effect either on offending behaviour or the behaviour of offenders in relation to their decision of how to plead.

As the Criminal Bar Association illustrates in their submission,[10] there may be reason to believe that the introduction of the baseline provisions themselves will change features of the cases coming before the courts on particular charges to such an extent that a comparison between cases receiving the median sentence prior to those provisions and new cases is no longer valid.
[10]Ibid [27].

I accept that a simplistic historic median transposition approach is not appropriate. Nevertheless, historical sentencing information provides the only available empirical basis from which to commence an analysis of a future cohort of sentences. It provides the best available information from which to form a view about what future patterns of offending will look like.

Mr Marsh on behalf of the accused submitted that one of the fundamental tasks of the court is to consider whether or not the offending falls at above or below the historical median.[11]
[11]Defence submissions on the Sentencing Amendment (Baseline Sentences) Act 2014 (Vic) [16].

The fundamental task undertaken by the court is to impose a sentence according to law, which now includes a requirement to consider whether the instant case falls at above or below the future median. This will be informed, to an extent, by the historical median, but may also take into account any other factors shown to have a bearing.

I therefore move to considering the historical data as the starting point for analysis before returning to the question of application.

The Historical Median

The Sentencing Advisory Council (SAC) has undertaken an extensive analysis of the historical data available. This initially resulted in the 2014 report Calculating the Baseline Offence Median in which the Council calculated the median sentence for sentences imposed for what are now baseline offences between 2008-09 to 2012-13 applying the “counting rules” set out in the Act.

Several caveats were articulated in relation to the data presented. This included that the data did not take into account the effect of appeals. In relation to the offence of incest, it also aggregated data in relation to two incest baseline offences. The SAC subsequently published in June of this year a document entitled Charges Sentenced to the Baseline Median Value: Guide to Baseline Sentencing Information. This provides data for sentences for the period 2009-10 to 2013-2014, includes appeal data and disaggregates the two incest offences. The data in this report supersedes that from the earlier report.

The SAC conclude that the median sentence for offences under s 44(1) of the Crimes Act where the victim was under 18 for the reference period was 5 years’ imprisonment.

The Director submitted that:

In the absence of any evidence of changes to sentencing practices subsequent to June 2014, the SAC statistics published in June 2015 provide a practical and proper basis for determining, as far as possible or necessary at this point the historical median.[12]

[12]Prosecution General Submissions on the Baseline Sentencing Provisions [65].

In his submissions, and whilst urging caution in placing reliance on the historic median,[13] Mr Marsh accepted that the SAC statistics demonstrate that cases of lineal incest have historically been treated by the courts in such a way as to yield a median of five years.[14]
[13]Defence Submissions on the Sentencing Amendment (Baseline Sentences) Act 2014 [12].
[14]Defence Outline of Plea Submissions [56].

In the most recent report the SAC provides the following explanation of its approach to calculating the median

Given that the median is a statistical measure that emerges from a set of data, it will vary according to the number of observations from which it is calculated. As long as offending and sentencing practices remain stable, variability in the median will decrease as the number of cases increases. The volume of cases will typically increase as the time period under examination increases.
The Council has chosen a five-year period of data from which to calculate the baseline median sentence. Five years has been chosen because it strikes a balance between:
· Ensuring that the period examined for the purpose of describing a current median is not so long as to include ‘historical’ sentencing practices (which may be different as a result of changes in the law over a longer periods of time); and
· Collecting enough data for an offence to reduce the variability that occurs from years to year…
Using a different period may result in different medians from those reported here.[15]

[15]Sentencing Advisory Council, Charges Sentenced to the Baseline Median Value: Guide to Baseline Sentencing Information (2015) 7.

While there are acknowledged limitations to, and caveats regarding, the SAC data, their approach to calculating the historical median has been a thoughtful one and their conclusion in relation to incest is accepted by both sides in this case. Whilst it is not necessarily a finding which is required by the Act, I am prepared to proceed on the basis that the historical median sentence for the offence of incest with a child, step child or lineal descendent aged under 18 is 5 years’ imprisonment. This informs a consideration of the historical cases, which in turn informs the determination I must make with respect to the instant case.

Use of the historic median cases

The SAC have collected sentencing reasons for cases in which the historical median sentence was imposed. In relation to the current charge 6 on this indictment the Council found that the median sentence of 5 years was imposed in relation to 89 charges (36 cases) out of a total sample of 430 charges. Sentencing reasons have been made available for 13 of the 36 cases.

The Crown have provided a table summarising certain factors in those 13 cases together with a table of appellate decisions in which at least one sentence of five years was imposed on a charge of incest.

The Defence submissions sound an appropriate note of caution in relation to drawing inferences from the pool of historical incest cases where individual sentences were at the historic median. It is likely, and in some cases apparent, that sentences on individual counts within that cohort have been moderated as a result of totality or the need to avoid a crushing sentence.

I accept that consideration of cases in which the historic median was imposed is therefore one to be approached with the same, if not greater, caution than the more usual process of comparison of like case for the purposes of establishing current sentencing practices. An analysis of the cases may provide some understanding of where the instant case may fall in the spectrum of future offending and inform the Court as it sentences. However, as I indicated above, I do not accept that the Court is called upon to make a determination about whether the instant case falls at, above or below the historic median.

Further, I am of the view that an analysis that looks only at median sentences is unlikely to be the most informative approach.

The Crown have undertaken a broader approach in analysing cases receiving sentences at, above and below the historic median and have drawn from that analysis the following broad characterisations:

Above median sentences reflect
·No plea of guilty cases without substantial mitigation
·Plea of guilty cases involving representative charges with significant aggravation
·Plea of guilty cases with very substantial aggravation

Median sentences reflect
·No plea of guilty cases with substantial mitigation (e.g. age mitigation for offender aged over 70 at sentence)
·Plea of guilty cases involving representative charges with no significant aggravation
·Plea of guilty cases involving single charges with moderate to significant aggravation

Below-median sentences reflect
·Plea of guilty cases with non-representative charges with no significant aggravation
·No plea of guilty cases with exceptional mitigation
·Plea of guilty cases with exception mitigation.[16]

[16]Prosecution Sentencing Submissions [9].

Examining the broader pattern of historical cases, whilst doubtless an onerous task and one that may not always be possible, is a process from which a much better and more informative picture emerges for the sentencing court.

Whilst not accepting the approach the Director advocates for, Mr Marsh agreed with the above characterisation for the purposes of this case.[17] The concurrence of views on this point makes the task of sentencing in this case substantially more straight forward that it would otherwise be. The predictions during public debate about how complex the sentencing process might become when these matters are not the subject of agreement seem to be well based. That is of particular concern for the time and resources of busy trial courts.
[17]Defence Outline of Plea Submissions [59].

Is the court to make a comparison with the case for which the median sentence would be appropriate?

The note at the end of s 5A(3) of the Sentencing Act 1991 suggests that the court is to engage in a comparative process between the current case (taking account all relevant sentencing factors) and “a case for which the median sentence would be appropriate” with the outcome of that consideration determining whether the current sentence should be equal to, or the degree to which it should be greater or lesser than, the baseline sentence. This would suggest that the task of the judge is to form a view about what is a case for which the median sentence would be appropriate before proceeding to make a comparison with the instant case and deciding a sentence by degrees of differentiation from the median.

A plain reading of the note suggests a two-stage sentencing process.

The note forms part of the Act (see Interpretation of Legislation Act 1984 s 36(3A)) and therefore informs the application of the provisions. However it remains an explanatory note and not a directive as to the task the court is to undertake. Read in context, it seeks to elaborate on the operation of s 5A(3)(c) regarding the matters the court is required or permitted to take into account and nothing more.

Neither the Director nor counsel for the accused in this case sought to give any definitive content to what was “a case for which the median sentence would be appropriate”.

It is not a concept currently known in Victorian sentencing law. The closest concept in established sentencing law in Australia is found in the standard non-parole period regime in New South Wales. Under this regime standard non-parole periods are specified for certain offences and represent “the non-parole period for an offence…that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.[18]
[18]Section 54A Crimes (Sentencing Procedure) Act 1999 (NSW).

The point of comparison was held by the High Court to be “an hypothetical offence in the middle of the range of objective seriousness” without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case.[19]
[19]Muldrock v the Queen (2011) 244 CLR 120 [31] relating to an earlier version of this section.

Identifying objective offence seriousness is a function of understanding the range of offence seriousness for any particular offence. It is informed by a history of cases coming before the courts, but it is not influenced by whether the particular offence has a high proportion of less serious offending, or an even distribution of seriousness across a range. It remains a hypothetical fixed yardstick or guidepost and can therefore be given meaningful content to be applied to cases as they come before the court.

On the other hand a median sentence is the result of a collection of actual sentences and is influenced by the overall pattern of offending and offenders which can change over time. Logically, the case for which the median sentence is appropriate is neither a fixed nor a hypothetical case as it is only revealed as such by an ex post facto analysis of actual cases over a defined period. It is, by definition, a marker that can only be placed in respect of a known and ordered set. Importantly, the median sentence need not bear any relationship with objective offence seriousness or any other conglomeration of sentencing facts.

It is therefore very difficult to give content to “a case for which the median sentence would be appropriate” and the usefulness of this approach in giving effect to the provisions of the Act is doubtful.

The Director submitted that the baseline sentence as the median forms a “guidepost” for the court, but as the Criminal Bar Association point out, as a “guidepost” it is worth very little in the absence of knowledge as to where that post is placed on the spectrum of culpability.[20] The Director in reply accepted the Criminal Bar Association’s conclusion on this point, but maintained that it had no significance as it is not an irrational reference point.[21] The Director submitted that the significance of the baseline as a guidepost is supplied by the Court’s understanding of the circumstances of, and the sentences imposed in, other cases.[22]
[20]Submissions as to the Baseline Sentencing Provisions made by the Victorian Criminal Bar Association appearing as Amicus Curiae [15].
[21]Prosecution Submissions in Reply [9] & [11].
[22]Ibid [14].

The approach of the Director in seeking to characterise not only the median sentence cases, but those above and below, is of greater assistance in giving effect to provisions of the Act than seeking to develop a picture of the features of a case for which the median sentence is appropriate. As a result, I do not propose to follow the process described in the note in undertaking the task set by the substantive provisions of the Act.

Is the instinctive synthesis approach preserved?

As I have mentioned, the opening submission of the Director was that baseline sentencing provisions are to be interpreted in a manner consistent with the instinctive synthesis methodology because, he argued, there is nothing in the amending legislation that expressly or by implication abrogates that approach.[23] Instinctive synthesis has been described as “an exercise in which all considerations relevant to the instant case are simultaneously unified, balanced and weighed by the sentencing judge.”[24] Or in the words of McHugh J in Markarian v The Queen:[25]

…the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.

[23]Prosecution General Submissions on the Baseline Sentencing Provisions, [20].

[24]Fox & Freiberg, Sentencing: State and Federal Law in Victoria (2014, 3ed) 228.

[25](2005) 228 CLR 357, [51].

The instinctive synthesis approach has been established as the law in Victoria and, as the Director pointed out, it would require a clear legislative intention to displace it. The various authors of the extrinsic material surrounding the baseline sentencing amendments take great pains to make clear their view that the amendments do not disturb the instinctive synthesis. Such statements however cannot be a substitute for an analysis of the text of the provisions and their effect.

The Director submitted that the baseline sentence is simply a matter to be taken into account in the overall mix of the sentencing equation.[26] Yet it is a matter which is unlike any of the other matters which the Court is to take into account because it seeks a statistical result and requires that other provisions of Part 2 which, if considered, would be inconsistent with Parliament’s intention are to be disregarded.
[26]Transcript, 55.

Other sentencing factors cannot weigh against Parliament’s intention that the baseline sentence form the median. Aggravating and mitigating circumstances serve only to place the instant case within a distribution of sentences. If, taking into consideration all relevant factors, a case falls clearly at or above the median in that distribution the Court is not in a position to come to a sentence which is below the baseline. To do so would be incompatible with the intention of the Parliament to which the Court is to give effect.

That does not mean that the process undertaken by the Court is no longer one of instinctive synthesis. The High Court in Muldrock v The Queen[27] found that Parliament in placing an additional guidepost in the sentencing process, in the form of standard non-parole periods, did not disrupt the instinctive synthesis process. Even mandatory minimum sentence provisions do not remove the process of instinctive synthesis.[28] They have been described by the High Court as setting one end of the yardstick as described in Markarian.[29]
[27](2011) 244 CLR 120.
[28]DPP(Cth) v Haidari (2013) 230 A Crim R 134; [2013] VSCA 149 [40].
[29]Magaming v The Queen (2013) 252 CLR 381 [48].

In the context of the baseline sentencing provisions the process of instinctive synthesis may be said to remain in the sense that the Court must consider all relevant factors to determine where the instant case should sit in the overall sentencing distribution. The baseline sentence and the maximum penalty will guide the court as to the numerical value that is to be ascribed as a result of that conclusion. However there are other sentencing factors which bear upon the numerical value to be ascribed and not just the relativity of the sentence to other sentences, including current sentencing practice, parsimony and proportionality. These are to be disregarded to the extent that their consideration would be inconsistent with the intention of the Parliament. As I noted earlier in relation to the note following s 5A(3), it is arguable that this necessarily involves a form of two stage sentencing, at least in cases falling at or above the median. For the reasons which follow a determination of whether a sentence at, above or below the median is required will determine the extent to which consideration of other factors is inconsistent with Parliament’s intention and therefore whether they must be disregarded. That is not a weighting exercise in a single stage process and is therefore difficult to reconcile with descriptions of the process of instinctive synthesis.

Is the determination of whether a case falls at, above or below the median a question of sentencing fact?

Counsel for the accused submitted that a finding that a matter is equal to, or more serious than those cases at the historical median is a finding of fact which is adverse to the accused and thus needs to be proved beyond reasonable doubt.[30] Mr Marsh further submitted that:

It is not possible- save in exceptional circumstances- for a court to make a finding required for the purposes of s 5A(1)(b) beyond a reasonable doubt that a case before it requires the imposition of a sentence of imprisonment for the terms required by the baseline sentencing scheme.[31]

[30]Defence Submissions on the Sentencing Amendment (Baseline Sentences) Act 2014 [17].

[31]Ibid [19].

It first needs to be clarified that at no stage is the Court required to make a finding of where the instant case sits in relation to the historical median. The historical median is informative only to the conclusion the Court must reach about whether the instant case is to fall at, above or below the median in the cohort of cases to which the baseline provisions apply.

The determination of whether a case should fall at, above or below the median will necessarily be based on a range of facts which are established in accordance with the rules established in R v Storey[32] and accepted by the majority of the High Court in R v Olbrich,[33] including that a sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt.
[32][1998] 1 VR 359, 369.
[33](1999) 199 CLR 270, 281.

The introduction of the baseline sentencing provisions add to the conventional sentencing facts regarding the offending and offender that are typically in issue. There may be a dispute, for example, about sentencing statistics regarding the historic median or factors which are affecting or will influence future cases. But, having resolved those questions of fact in accordance with the relevant principles, the process whereby the Court determines how the case at hand is to sit within the cohort of cases is not a fact finding exercise.

A conclusion that a case is to fall at or above the median will have significant consequences for an offender, it is not one to be reached lightly, but it is not one to which the principles in Storey apply because it is not a finding of sentencing fact.

In this case there was essentially no factual dispute. The only real point of difference between the Director and the accused was the way in which the offender’s conversations with the victim about disclosure of the offending should be characterised. There was no disagreement about the historic median. There was broad agreement about the characterisation of the salient features of historic cases falling at, above and below the median. In taking all those established matters into account and arriving at a sentence, the sentencing court does not impose a particular standard of proof because it is not, at that stage, making findings of fact adverse to the accused which would need to be established to the criminal standard. Rather the court is engaging in something of a comparative exercise with a view to a statistical outcome.

‘Scaling’ of sentence above and below the median

The Director submitted that most sentences should increase significantly in comparison to pre-baseline sentencing practice as a result of baseline sentencing provisions.[34]
[34]Prosecution General Submissions on the Baseline Sentencing Provisions, [77].

The Director likened the provisions to changes in the maximum penalty which are frequently dealt with within the context of a single case involving historical sexual offending.[35]
[35]Transcript, 71.

In response to questions from me, the Director argued that the sentence on charge 6 must inevitably be higher than the earlier charges of incest by virtue of the baseline provisions alone.[36]
[36]Transcript, 68-71.

Mr Marsh argued that the baseline sentencing provisions do not require that sentences above or below the median are ‘scaled’ in proportion to the baseline sentence.[37] He argued that for cases which do not warrant a sentence at or above the median the Court is to sentence without regard to the baseline sentence.[38]
[37]Defence Submissions on the Sentencing Amendment (Baseline Sentences) Act 2014, [23].
[38]Transcript, 96.

It must be accepted as a matter of mathematics, that so long as half of all sentences are at or above, and half of all sentences are at or below a particular figure, the distribution of sentences above and below that point do not affect the median. Therefore sentencing in a manner compatible with Parliament’s intention does not require that sentences below the median are scaled in proportion to the baseline sentence. As defence counsel rightly pointed out, whether a sentence of one year or nine years is imposed does not change the median.[39]
[39]Transcript, 97.

However, there are other sections of the legislation which must be considered before reaching a conclusion on this point. Section 5(2)(ab) requires the court to have regard to the baseline sentence for the offence. That requirement is not confined to cases falling at or above the median.

The baseline sentence cannot be disregarded in a case where a sentence below the median is appropriate. However, it is necessary to consider what that means in the context of all other relevant provisions of the Act. While s 5A(3)(b) requires the sentencing court to disregard a provision of that Part if not disregarding it would be incompatible with the intention of the Parliament, Mr Marsh submits in a case which falls below the median none of the provisions are incompatible with Parliament’s intention.[40] In particular he pointed to the principle of parsimony in s 5(3):

A court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

[40]Transcript, 97.

Those purposes are unaffected by the baseline provisions and therefore this principle should continue to constrain the upper limits of sentences to which it applies. He also sought to distinguish the introduction of the baseline provisions from increases in the maximum penalty for an offence.

In respect of the latter Court of Appeal has held that:

Whenever Parliament increases the maximum sentence for any criminal offence, that increase has potential significance for all sentences to which the new maximum applies. As the present case illustrates, the increase will have very substantial implications for any sentence for an offence that is placed within the worst category of that offence. Even where the offence to which the increase applies is nowhere near the worst category, the increase remains of relevance since, in the usual case, the increase shows that Parliament regarded the previous penalties as inadequate.[41] Even where the new maximum may only be of general assistance it becomes the ‘yardstick’ which must be balanced with all other relevant factors.

[41]R v AB (No 2) (2008) 18 VR 391, [51].

Counsel submitted that the baseline provisions are to be distinguished as they evince an intention only that cases requiring sentences falling at or above the median are to be adjusted, and say nothing about sentences falling below the median.[42]
[42]Transcript, 98-99.

I am persuaded by Mr Marsh’s submissions on this issue.

Primacy is to be given to the text of the provisions in interpretation. General statements in the extrinsic material about the intention to increase sentences cannot be used as a substitute for the words of the Act.[43]
[43]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27, 46–7.

Giving effect to the intention of Parliament as expressed in s 5A(1)(b) does not affect the application of the remaining provisions of the Act with respect to sentences for cases falling below the median. Indeed s 5A(3)(c) requires that the court is to continue to apply the existing provisions in the same way as they would apply to non-baseline charges.

Whilst it is now necessary to have regard to the baseline sentence pursuant to s 5(2), the baseline sentence requires only that cases at the median are to receive a sentence of 10 years with cases above more and cases below less. The requirement that regard be had to the baseline sentence says nothing about the distribution of sentences beyond that.

While reference in the note at the end of s 5A(3)(c) to degrees of departure from the baseline might be taken as an indication that a scaling exercise of some kind was envisaged, no such process is provided for by the directive sections of the Act. There is no mechanism or guidance in the legislation as to how a process of scaling might be approached.

This interpretation will create what Mr Marsh described as an artificial sentencing pattern.[44] That is not a matter which concerns the Court. It is accepted that legislative provisions may distort sentencing patterns. Mandatory minimum sentences may compress sentences towards the lower end of the range[45] as a result of the principles of parsimony and proportionality of sentence to the objective gravity of the crime. Here those same requirements, together with the baseline provisions, will most likely lead to the formation of a significant gap between median sentences and sentences in cases falling below the median. While it is an unusual result, it is not one which is so absurd as to cast doubt on the construction of the provisions.
[44]Transcript, 98.
[45]Atherden v Western Australia [2010] WASCA 33 [43] cited with approval in DPP (Cth) v Haidari (2013) 230 A Crim R 134; [2013] VSCA 149 [42].

Does this case fall at above or below the median?

Mr Marsh submitted that the offending on charge 6 can properly be characterised as a plea of guilty to a non-representative charge with no significant aggravating features. Therefore, in accordance with the Crown analysis of historical cases, a sentence below the median is warranted.[46]
[46]Defence Outline of Plea Submissions [61].

The Director submitted that the offending as a whole falls at mid-range[47] (whatever that means, respectfully,) but did not make any submission as to whether charge 6 should fall at above or below the median by reference to their analysis.
[47]Prosecution Sentencing Submissions [11].

The following facts are uncontested and apparent from my sentencing remarks:

·The offender made full and frank admission within hours of the first contact with police and pleaded guilty at the earliest possible opportunity;
·There is significant evidence of remorse;
·The offender is of prior good character with no antecedents;
·The offender has good prospects of rehabilitation; and
·Imprisonment will weigh more heavily on the offender as a result of his mental illness when compared to an offender of normal health and is likely to have an adverse effect on his mental health.

Charge 6 is not a representative charge, nor does it involve the features of aggravation present in other cases such as the risk of pregnancy or physical assault. The offender did not use threats to prevent the disclosure of the offences by the victim or seek to blame the victim in any way for his offending. He did, in speaking to the victim, suggest that if she were to disclose the offending it would have consequences for the family and at various points sought to place upon the victim the responsibility to stop him by suggesting she remind him of his promise not to do it again. The offending continued over a period of 2 years and he did not find it within himself to stop and is therefore not in the same position as to mitigation as, for example, the offender in CD v The Queen.[48]
[48][2013] VSCA 95.

The offence has had a significant impact on the victim, her mother, and the family. Whilst I accept the Defendant’s submission that there is no evidence to support the proposition that the offender ignored the victim’s attempts to stop him on individual occasions, by his own admission he continued to offend on subsequent occasions.

Taking all these matters into account, I am satisfied that the sentence on charge 6 should fall below the median sentence to be imposed for this offence under the baseline sentencing provisions. In reaching that conclusion I have been informed by the characterisation of historical cases outlined in the Prosecution submissions and accepted by Defence counsel. I consider they provide reasonable guidance to future cases. Whilst it would be open to argument that other factors may change the characteristics of the future cohort of cases, there is nothing at present to suggest any factor would lead to a conclusion other than the one I have arrived at in this case.

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Du Randt v R [2008] NSWCCA 121

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[2015] VSC 372

30 July 2015