High Court shames slack sentencing in Victoria
Australians know 3½ years’ jail for incest is pitifully low
Victorians who believe the state’s justice system does too little to deter serious crimes by imposing overly lenient sentences can take heart. The High Court agrees. On Wednesday, the court ruled that a 3½-year jail sentence handed to a man who sexually abused and impregnated his partner’s 13-yearold daughter was “manifestly inadequate”. Nobody could disagree — not even the Victorian Court of Appeal, which upheld the sentence it described as “not a proportionate response to the objective gravity of the offence”. Yet it refused to increase it, on the dubious grounds it was “in accordance with current standards”. Those standards, the High Court found, had been “anomalously low” for at least 30 years.
Victorian prosecutors, understandably, have despaired for years about the lax sentences given to some of the state’s worst criminals. The administration of justice, however, has been hamstrung by a disproportionate emphasis on consistency in sentencing or the treatment of “like cases alike”. Victorian Attorney-General Martin Pakula, in welcoming the High Court’s decision, said it would ensure Victorian courts had greater freedom to impose sentences that reflected the gravity of offences. It should never have come to this, however. As the High Court noted, current sentencing practice “was just one factor, not the controlling factor, in fixing a just sentence”.
Unfortunately, that fundamental point has eluded Victorian judges for too long. In her war of words with Victorian Director of Public Prosecutions John Champion over the conduct of the DPP’s sentencing appeal to the High Court, recently retired Victorian chief justice Marilyn Warren showed determined adherence to the principle of upholding longstanding sentencing practices. She accused the DPP of misleading the High Court because it had not previously questioned a 2011 Victorian Court of Appeal ruling that said those who pleaded guilty had the right to expect they would be sentenced in line with current decisions. In practice, that principle has kept a lid on punishments meted out for serious crimes. As legal affairs correspondent Nicola Berkovic wrote yesterday: “Just because you make one mistake in the past doesn’t mean you should keep repeating it.”
Ironically, the High Court heard the appeal in Canberra on June 14 — the day the Victorian Supreme Court wrote to three federal ministers, Greg Hunt, Michael Sukkar and Alan Tudge, and to editorial staff of The Australian asking why they should not be charged with contempt of court. That row stemmed from comments we published in which the ministers criticised terrorism sentences in Victoria, while Ms Warren and two other judges were presiding over an appeal by the Commonwealth DPP against a 7½-year non-parole sentence imposed on Anzac Day plotter Sevdet Ramadan Besim. The ministers avoided prosecution only after apologising and withdrawing the comments. The High Court has done Victorians a favour, raising expectations that in future the punishment of rapists, murderers, terrorists and others will fit their crimes.