Representative counts and current sentencing practices

Last year the Court of Appeal decided the appeal against sentence of DPP v CPD [2009] VSCA 114. That case considered an appeal against sentence for sex offences against children, but provided useful statements of general principle with broader application in all sentencing matters. It’s just been reported in the Victorian Reports at (2009) 22 VR 533 (which is what put me on to it) — suggesting the law reporters think it’s kind of important too!

Representative counts

At [38] – [43], the Court said that representative counts are relevant at sentencing for two reasons.

First, a representative count prevents an accused person submitting in mitigation that the offence was isolated or out of character incident — but is not itself an aggravating factor (citing DPP v McMaster (2008) 19 VR 191 at [42] – [49]).

Second, the sentencing court must consider the accused’s behaviour demonstrated by the representative count to place the offending in its full context — or consider the full picture — and give appropriate weight to culpability, specific deterrence and rehabilitation: DPP v CPD (2009) 22 VR 533 at [38].

Current sentencing practices

Sentencing Act 1991 s 5(2)(a) and (b) provide:

(2) In sentencing an offender a court must have
regard to —

(a) the maximum penalty prescribed for the offence; and

(b) current sentencing practices;

This appeal considered how to resolve the tension that might arise if the prescribed maximum for an offence varies from current sentencing practices — especially if the maximum has been increased by Parliament.

At [77] in its joint judgment, the Court declared that current sentencing practices means the approach currently adopted by sentencing judges when sentencing for the particular offence. That involves considering relevant sentencing statistics for the offence (echoes of MacNeil-Brown) and sentencing decisions in comparable cases.

The Court then referred to DPP v OJA (2007) 172 A Crim R 181 at [29]–[32], where Nettle JA said (my paraphrase) current sentencing practices:

  1. Prohibit identifying aggravating increments and mitigating decrements above a mathematical norm (which would offend the Markarian proscription of two-step sentencing). But some [sexual] offences are more serious than others and there is a need for at least some degree of comparison.
  2. Having regard to current sentencing practices doesn’t mean manifest excess and inadequacy are capped and collared by the highest and lowest sentences for previous similar offences. A sentence may properly rise above or fall below the greatest and lowest sentences previously imposed.
  3. Sentencing Act 1991 s 5(2)(b) requires courts to have regard to current sentencing practices. That doesn’t preclude increases or decreases in the level of sentences for particular kinds of offences. Over time, views may change about the length of sentence which should be imposed in particular cases and, when that occurs, the notions of manifest excessiveness and manifest inadequacy will be affected. It is possible that previous sentences were simply too low.

In short: sentencers should consider relevant sentencing statistics and previous cases, but sentencing ranges are not carved in stone, and can change as prescribed maximums change and as sentencing standards change too.

I expect that in practice this means sentencers will look ever more for assistance from advocates to provide relevant statistics and cases for their consideration to help avoid appeals on sentence.

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