High Court shames slack sen­tenc­ing in Vic­to­ria

Aus­tralians know 3½ years’ jail for in­cest is piti­fully low

The Australian - - COMMENTARY -

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.

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