18 November 2015
Baseline sentencing case note: DPP v Walters [2015] VSCA 303
The Court of Appeal decision in DPP v Walters (a pseudonym) [2015] VSCA 303 was handed down on
17 November 2015. The court ruled (by a 4–1 majority) that the ‘baseline sentencing’ provisions
enacted in 2014 are ‘incapable of being given any practical operation’ [9].
This decision demonstrates the fundamentally important role our Court of Appeal plays in statutory
interpretation. This was not a decision attacking the provisions because they were unpopular rather it
found a fundamental defect in the structure of the baseline provisions which meant they were
unworkable.
Offending and baseline provisions
The appeal before the court concerned a sentence imposed for an offence of incest. The baseline
provisions declare that, at some unspecified time in the future, a sentence of 10 years’ imprisonment
will become the ‘median sentence’ for the offence of incest.
The ‘baseline sentencing’ regime was created by amendments to the Sentencing Act 1991 made in
2014. The provisions apply to any ‘baseline offence’ committed on or after 2 November 2014. Incest is
specified as a baseline offence for this purpose, and the provisions require the sentencing court to have
regard to ‘the baseline sentence’ for the offence.
The key provisions are s5A(1)(b), which declares Parliament’s intention, and s5A(3)(a), which requires
the court when sentencing an offender for a baseline offence to ‘do so in a manner that is compatible
with Parliament’s intention’.
Parliament’s intention is expressly stated in s 5A(1)(b), as follows:
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.
The ‘Median’ is a statistical term used to identify the middle number in a series of numbers. In this
instance for the offence of incest that number was 10 years.
What the court decided
Majority decision – Maxwell P, Redlich, Tate and Priest JJA
The majority concluded that whilst the baseline provisions are ‘comprehensible’ they are silent as to the
means by which an individual judge imposing sentence for incest is to do so ‘in a manner compatible
with’ that stated intention [6].
It found the failure to provide a mechanism for the achievement of the intended future median was a
fundamental legislative gap for a dominant sentencing principle it described it as ‘more than a mere
technicality’[46] and [61]. Further it was an ‘incurable defect’ [8] and [10] because it was beyond the
judicial function of the court to fill [11] and [54]. To do so ‘would be to legislate, not to interpret’ [8].
This conclusion follows from the application of established rules of statutory interpretation [2], [3], [7],
[49], [50] and [57]. The court also noted that when Parliament legislates, it does so in the knowledge
that the task of interpretation will be governed by such rules [62].
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Victoria Legal Aid
Baseline sentencing case note
Dissent – Whelan JA
Justice Whelan concluded that the sentencing judge’s analysis of the provisions was, with a significant
exception, substantially correct. He did not accept the submission that the legislation is incapable of
practical operation. He concluded that, notwithstanding the difficulties of application, the new provisions
could operate as a ‘guidepost’, in a similar way to the manner in which maximum penalties operate. He
did not consider the absence of a ‘mechanism’ to be fatal as many sentencing principles are applied as
matters of judgment without any legislated or other mechanism.
*This summary provides an overview of the judgment. Material has been drawn from the judgment and
the Court of Appeal Judgement Summary. It should not be relied upon as a substitute for the Court of
Appeals full judgment.
What will it mean in practice?
The Attorney-General has commented publicly that he is seeking urgent advice from the Department.
We have been advised the Director of Public Prosecutions is considering his position. This may include
an appeal to the High Court but also the Crown’s approach to matters currently in the system and
whether they will be seeking further adjournments will be sought, pending any legislative reform.
Victoria Legal Aid will be advising the government to repeal the legislation given it is fundamentally
unworkable. It will further encourage an unhurried and consultative approach to any proposed
alternative legislation or amendments.
In the meantime, Victoria Legal Aid is of the view that matters that have been in abeyance should
proceed to plea and sentence as finality is important for both accused and victims.
The Court of Appeal decision enables practitioners to make submissions that the courts should
sentence in accordance with established sentencing principles where they consider all of the relevant
factors in arriving at a just sentence given baseline provisions are ‘incapable of being given any
practical operation’. Clients should have certainty in having their matters proceed to sentence so that
they can be finalised and adjournments should be opposed.
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