Sentencing Amendment (Baseline Sentences) Act
2014
No. 52 of 2014
TABLE OF PROVISIONS
Section
Page
PART 1—PRELIMINARY
1
2
1
Purposes
Commencement
1
2
PART 2—AMENDMENT OF THE SENTENCING ACT 1991
3
4
5
6
7
8
9
10
Definitions
Sentencing guidelines
New sections 5A and 5B inserted
5A
Sentencing for a baseline offence
5B
Median sentence
Content of guideline judgment
Aggregate sentence of imprisonment
New section 11A inserted
11A
Fixing of non-parole period for baseline offence
Aggregate fines
New section 152 inserted
152
Transitional provisions—Sentencing Amendment
(Baseline Sentences) Act 2014
PART 3—AMENDMENT OF THE CRIMES ACT 1958
11
12
13
14
15
16
Definition inserted
Baseline sentence for murder
Baseline sentence for certain incest offences
Baseline sentence for sexual penetration of child under the
age of 12
Baseline sentence for persistent sexual abuse of child under
the age of 16
Baseline sentence for culpable driving causing death
i
3
3
3
3
3
5
6
6
7
7
8
8
8
10
10
10
10
11
12
12
Section
Page
PART 4—AMENDMENT OF THE DRUGS, POISONS AND
CONTROLLED SUBSTANCES ACT 1981
17
18
Definition inserted
Baseline sentence for trafficking in a large commercial quantity
of a drug or drugs of dependence
PART 5—REPEAL OF AMENDING ACT
19
Repeal of amending Act
═══════════════
ENDNOTES
13
13
13
14
14
15
ii
Victoria
Sentencing Amendment (Baseline
Sentences) Act 2014†
No. 52 of 2014
[Assented to 12 August 2014]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purposes
The purposes of this Act are—
(a) to amend the Sentencing Act 1991 to
provide for baseline sentences for indictable
offences; and
(b) to amend the Crimes Act 1958 to fix a
baseline sentence for—
(i) murder; and
1
Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014
s. 2
Part 1—Preliminary
(ii) incest with one's, or one's de facto
spouse's, child or other lineal
descendant or step-child under the age
of 18; and
(iii) sexual penetration with a child under
the age of 12; and
(iv) persistent sexual abuse of a child under
the age of 16; and
(v) culpable driving causing death; and
(c) to amend the Drugs, Poisons and
Controlled Substances Act 1981 to fix a
baseline sentence for trafficking in a large
commercial quantity of a drug or drugs of
dependence.
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 July 2015, it comes into
operation on that day.
__________________
2
Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014
Part 2—Amendment of the Sentencing Act 1991
s. 3
PART 2—AMENDMENT OF THE SENTENCING ACT 1991
3 Definitions
In section 3(1) of the Sentencing Act 1991 insert
the following definitions—
"baseline offence means an offence for which an
Act specifies a baseline sentence;
Note
See section 5A.
baseline sentence, in relation to an offence, means
the period specified by an Act as the baseline
sentence for the offence;
Note
See section 5A.
median sentence—see section 5B;
total effective sentence has the same meaning as
in the Criminal Procedure Act 2009;".
4 Sentencing guidelines
After section 5(2)(a) of the Sentencing Act 1991
insert—
"(ab) the baseline sentence for the offence; and".
5 New sections 5A and 5B inserted
After section 5 of the Sentencing Act 1991
insert—
"5A Sentencing for a baseline offence
(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
3
See:
Act No.
49/1991.
Reprint No. 15
as at
30 September
2013
and
amending
Act Nos
32/2013,
46/2013,
70/2013,
77/2013,
7/2014,
15/2014 and
17/2014.
LawToday:
www.
legislation.
vic.gov.au
Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014
s. 5
Part 2—Amendment of the Sentencing Act 1991
(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.
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Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014
Part 2—Amendment of the Sentencing Act 1991
(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 an offence of aiding,
abetting, counselling or procuring 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.
5B Median sentence
A reference in section 5A to a median
sentence for sentences imposed for an
offence is to a median where—
(a) both custodial and non-custodial
sentences are considered, other than
sentences imposed—
(i) on an offender for an offence
committed when he or she was
under the age of 18; or
(ii) for an offence heard and
determined summarily; and
5
s. 5
Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014
s. 6
Part 2—Amendment of the Sentencing Act 1991
(b) if a total effective sentence is imposed
in respect of 2 or more sentences, at
least one of which is for a relevant
offence, the term of the individual
sentence for any such relevant offence
is treated as the term of the sentence for
that offence; and
(c) the length of that part of a partially
suspended term of imprisonment that is
not held in suspense is treated as the
term of the sentence; and
(d) a wholly suspended term of
imprisonment is treated as a noncustodial sentence; and
(e) a non-custodial sentence is treated as a
term of imprisonment of zero months.".
6 Content of guideline judgment
After section 6AC(e) of the Sentencing Act 1991
insert—
"(ea) guidelines for sentencing offenders for
baseline offences;".
7 Aggregate sentence of imprisonment
After section 9(1A)(a) of the Sentencing Act
1991 insert—
"(ab) the offences comprise at least one offence
that is a baseline offence; or".
6
Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014
Part 2—Amendment of the Sentencing Act 1991
8 New section 11A inserted
After section 11 of the Sentencing Act 1991
insert—
"11A Fixing of non-parole period for baseline
offence
(1) This section applies to a court when fixing,
in accordance with section 11, a non-parole
period—
(a) for a baseline offence; or
(b) in respect of a total effective sentence
imposed in respect of 2 or more
sentences, at least one of which is for a
baseline offence.
(2) This section also applies to a court when
fixing, in accordance with section 14, a new
single non-parole period in circumstances
where the further sentence is a sentence of
imprisonment for a baseline offence.
(3) However, this section does not apply to a
court when fixing a non-parole period 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.
(4) The non-parole period must be at least—
(a) 30 years if the relevant term is the term
of the offender's natural life; or
(b) 70% of the relevant term if that term is
a term of 20 years or more; or
(c) 60% of the relevant term if that term is
a term of less than 20 years.
7
s. 8
Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014
s. 9
Part 2—Amendment of the Sentencing Act 1991
(5) In subsection (4) the relevant term is—
(a) if a non-parole period is being fixed for
a baseline offence, the sentence for that
offence; and
(b) if a non-parole period is being fixed in
respect of a total effective sentence
referred to in subsection (1)(b), that
sentence.
(6) Nothing in this section affects the fixing of a
non-parole period for an offence that is not a
baseline offence or in respect of a total
effective sentence imposed in respect of 2 or
more sentences, none of which is for a
baseline offence.".
9 Aggregate fines
After section 51(1) of the Sentencing Act 1991
insert—
"(1A) Despite subsection (1), a court must not
impose one fine in respect of 2 or more
offences if at least one of them is a baseline
offence.".
10 New section 152 inserted
At the end of Part 12 of the Sentencing Act 1991
insert—
"152 Transitional provisions—Sentencing
Amendment (Baseline Sentences) Act 2014
(1) In this section—
2014 Act means the Sentencing
Amendment (Baseline Sentences) Act
2014.
(2) The amendments made to this Act by Part 2
of the 2014 Act only apply to the sentencing
of an offender on or after the commencement
of that Part for an offence alleged to have
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Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014
Part 2—Amendment of the Sentencing Act 1991
been committed on or after that
commencement.
(3) However, nothing in subsection (2) prevents
a court taking into account the effect on
current sentencing practices of the
amendments made to this Act by Part 2 of
the 2014 Act in sentencing an offender on or
after the commencement of that Part for an
offence to which those amendments would
have applied had it been committed on or
after that commencement.
Note
Section 5(2)(b) requires a court in sentencing an
offender to have regard to current sentencing
practices.
(4) For the purposes of subsections (2) and (3),
if an offence is alleged to have been
committed between 2 dates, one before and
one after the commencement of Part 2 of the
2014 Act, the offence is alleged to have been
committed before that commencement.".
__________________
9
s. 10
Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014
s. 11
Part 3—Amendment of the Crimes Act 1958
PART 3—AMENDMENT OF THE CRIMES ACT 1958
11 Definition inserted
See:
Act No.
6231.
Reprint No. 24
as at
1 July 2013
and
amending
Act Nos
16/2004,
27/2011,
60/2013,
70/2013,
72/2013,
77/2013,
7/2014, 8/2014
and 17/2014.
LawToday:
www.
legislation.
vic.gov.au
In section 2A of the Crimes Act 1958 insert the
following definition—
"baseline sentence, in relation to an offence, has
the same meaning as in the Sentencing Act
1991;".
12 Baseline sentence for murder
At the end of section 3 of the Crimes Act 1958
insert—
"(2) The baseline sentence for murder is 25 years.
Note
See section 5A of the Sentencing Act 1991 as to
baseline sentences.".
13 Baseline sentence for certain incest offences
(1) After section 44(1) of the Crimes Act 1958
insert—
"(1A) The baseline sentence for an offence under
subsection (1) 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.
Note
See section 5A of the Sentencing Act 1991 as to
baseline sentences.
10
Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014
Part 3—Amendment of the Crimes Act 1958
(1B) The circumstance described in
subsection (1A)—
(a) is to be determined by the jury if the
accused pleads not guilty to the
offence; and
(b) is to be determined by the trial judge if
the accused pleads guilty to the
offence.".
(2) After section 44(2) of the Crimes Act 1958
insert—
"(2A) The baseline sentence for an offence under
subsection (2) is 10 years.
Note
See section 5A of the Sentencing Act 1991 as to
baseline sentences.".
14 Baseline sentence for sexual penetration of child
under the age of 12
After section 45(2) of the Crimes Act 1958
insert—
"(2A) The baseline sentence for an offence against
subsection (1) committed in the circumstance
of aggravation described in subsection (2)(a)
is 10 years.
Note
See section 5A of the Sentencing Act 1991 as to
baseline sentences.".
11
s. 14
Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014
s. 15
Part 3—Amendment of the Crimes Act 1958
15 Baseline sentence for persistent sexual abuse of child
under the age of 16
After section 47A(4) of the Crimes Act 1958
insert—
"(4A) The baseline sentence for an offence under
subsection (1) is 10 years.
Note
See section 5A of the Sentencing Act 1991 as to
baseline sentences.".
16 Baseline sentence for culpable driving causing death
After section 318(1) of the Crimes Act 1958
insert—
"(1A) The baseline sentence for an offence under
subsection (1) is 9 years.
Note
See section 5A of the Sentencing Act 1991 as to
baseline sentences.".
__________________
12
Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014
Part 4—Amendment of the Drugs, Poisons and Controlled Substances Act
1981
s. 17
PART 4—AMENDMENT OF THE DRUGS, POISONS AND
CONTROLLED SUBSTANCES ACT 1981
17 Definition inserted
In section 4(1) of the Drugs, Poisons and
Controlled Substances Act 1981 insert the
following definition—
"baseline sentence, in relation to an offence, has
the same meaning as in the Sentencing Act
1991;".
18 Baseline sentence for trafficking in a large
commercial quantity of a drug or drugs of
dependence
At the end of section 71 of the Drugs, Poisons
and Controlled Substances Act 1981 insert—
"(2) The baseline sentence for an offence under
subsection (1) is 14 years.
Note
See section 5A of the Sentencing Act 1991 as to
baseline sentences.".
__________________
13
See:
Act No.
9719.
Reprint No. 10
as at
30 November
2012
and
amending
Act Nos
57/2012,
82/2012,
70/2013,
9/2014 and
13/2014.
LawToday:
www.
legislation.
vic.gov.au
Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014
Part 5—Repeal of Amending Act
s. 19
PART 5—REPEAL OF AMENDING ACT
19 Repeal of amending Act
This Act is repealed on 1 July 2016.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
═══════════════
14
Sentencing Amendment (Baseline Sentences) Act 2014
No. 52 of 2014
Endnotes
ENDNOTES
†
Minister's second reading speech—
Legislative Assembly:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to amend the
Sentencing Act 1991 to provide for baseline sentences for indictable
offences, to amend the Crimes Act 1958 and the Drugs, Poisons and
Controlled Substances Act 1981 to fix a baseline sentence for certain
offences against those Acts and for other purposes."
15