Sentencing Amendment (Sentencing Standards) Act2017
No. 34 of 2017
table of provisions
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Part 1—Preliminary
1Purposes
2Commencement
Part 2—Repeal of the baseline sentencingscheme
Division 1—Amendment of the Sentencing Act 1991
3Definitions
4Sentencing guidelines
5Sentencing for a baseline offence
6Median sentence
7Content of guideline judgment
8Aggregate sentence of imprisonment
9Fixing of non-parole period for baseline offence
10Aggregate fines
11Transitional provisions—Sentencing Amendment (BaselineSentences) Act 2014
Division 2—Amendment of the Crimes Act 1958
12Definitions
13Punishment for murder
14Culpable driving causing death
Division 3—Amendment of the Drugs, Poisons and Controlled Substances Act 1981
15Definitions
16Trafficking in a drug or drugs of dependence—large commercial quantity
Part 3—Standard sentence scheme
Division 1—Amendment of the Sentencing Act 1991
17Definitions
18Sentencing guidelines
19New sections 5A and 5B inserted
20Content of guideline judgment
21Aggregate sentence of imprisonment
22New section 11A inserted
23Aggregate fines
Division 2—Amendment of the Crimes Act 1958
24Definition inserted
25Standard sentence for murder
26Standard sentence for rape
27Standard sentence for sexual penetration of a child under the age of 12
28Standard sentence for sexual penetration of a child under the age of 16
29Standard sentence for sexual assault of a child under the age of16
30Standard sentence for sexual activity in the presence of a child under the age of 16
31Standard sentence for causing a child under the age of 16 to be present during sexual activity
32Standard sentence for persistent sexual abuse of a child under the age of 16
33Standard sentence for sexual penetration of a child or lineal descendant
34Standard sentence for sexual penetration of a stepchild
35Standard sentence for culpable driving causing death
Division 3—Amendment of the Drugs, Poisons and Controlled Substances Act 1981
36Definition inserted
37Standard sentence for trafficking in a large commercial quantity of a drug or drugs of dependence
Part 4—Guideline judgments
38Definition
39New section 6ABA inserted
40Content of guideline judgment
41Procedural requirements
Part 5—Miscellaneous
42New section 162 inserted
43Amendment of Schedule 1
Part 6—Repeal of amending Act
44Repeal of amending Act
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Endnotes
1General information
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Victoria
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Sentencing Amendment (Sentencing Standards) Act2017[†]
No. 34 of 2017
[Assented to 15 August 2017]
1
Sentencing Amendment (Sentencing Standards) Act2017
No. 34 of 2017
1
Sentencing Amendment (Sentencing Standards) Act2017
No. 34 of 2017
The Parliament of Victoriaenacts:
1
Part 6—Repeal of amending Act
Sentencing Amendment (Sentencing Standards) Act2017
No. 34 of 2017
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to amend the Sentencing Act 1991—
(i)to repeal the baseline sentencing scheme; and
(ii) toprovide for standard sentences for indictable offences;and
(iii) toenhancethe scheme in that Act for the giving of guideline judgments; and
(iv)to amend the definition of arson offence for the purposes of Part 2A of that Act (serious offenders); and
(b)to amend the Crimes Act 1958—
(i)to remove references to the baseline sentencing scheme; and
(ii)to fix a standard sentence for—
(A) murder; and
(B) a range of sexual offences; and
(C) culpable driving causing death; and
(c)to amend the Drugs, Poisons and Controlled Substances Act 1981—
(i)to remove references to the baseline sentencing scheme; and
(ii)to fix a standard sentence for trafficking in a large commercial quantity of a drug or drugs of dependence.
2Commencement
(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 April 2018, it comes into operation on that day.
Part 2—Repeal of the baseline sentencingscheme
Division 1—Amendment of the Sentencing Act 1991
3Definitions
In section 3(1) of the Sentencing Act 1991, the definitions of baseline offence, baseline sentenceandmedian sentence are repealed.
4Sentencing guidelines
Section 5(2)(ab) of the Sentencing Act 1991 is repealed.
5Sentencing for a baseline offence
Section 5A of the Sentencing Act 1991 is repealed.
6Median sentence
Section 5B of the Sentencing Act 1991 is repealed.
7Content of guideline judgment
Section 6AC(ea) of the Sentencing Act 1991 is repealed.
8Aggregate sentence of imprisonment
Section 9(1A)(ab) of the Sentencing Act 1991 is repealed.
9Fixing of non-parole period for baseline offence
Section 11A of the Sentencing Act 1991 is repealed.
10Aggregate fines
Section 51(1A) of the Sentencing Act 1991 is repealed.
11Transitional provisions—Sentencing Amendment (BaselineSentences) Act 2014
Section 155 of the Sentencing Act 1991 is repealed.
Division 2—Amendment of the Crimes Act 1958
12Definitions
In section 2A(1) of the Crimes Act 1958, the definition of baseline sentence is repealed.
13Punishment for murder
(1)Section 3(2) and (3) of the Crimes Act 1958 is repealed.
(2)The note at the foot of section 3 of the Crimes Act 1958 is repealed.
14Culpable driving causing death
Section 318(1A) of the Crimes Act 1958 is repealed.
Division 3—Amendment of the Drugs, Poisons and Controlled Substances Act 1981
15Definitions
In section 4(1) of the Drugs, Poisons and Controlled Substances Act 1981, the definition of baseline sentence is repealed.
16Trafficking in a drug or drugs of dependence—largecommercial quantity
Section 71(2) of the Drugs, Poisons and Controlled Substances Act 1981 is repealed.
Part 3—Standard sentence scheme
Division 1—Amendment of the Sentencing Act 1991
17Definitions
In section 3(1) of the Sentencing Act 1991insertthe following definitions—
"standard sentence, in relation to an offence, means the period specified by an Act as the standard sentence for the offence;
Note
See section 5A.
standard sentence offence means an offence for which an Act specifies a standard sentence;
Note
See section 5A.".
18Sentencing guidelines
After section 5(2)(a) of the Sentencing Act 1991 insert—
"(ab)the standard sentence, if any, for the offence; and".
19New sections 5A and 5B inserted
After section 5 of the Sentencing Act 1991 insert—
"5A Standard sentence scheme
(1)If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the standard sentence for the offence, then—
(a)the offence is a standard sentence offence; and
(b)the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
(2) An offence of conspiracy to commit, incitement to commit or attempting to commit a standard sentence offence is itself not a standard sentence offence.
(3)For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined—
(a) without reference to matters personal toa particular offender or class of offenders; and
(b) whollyby reference to the nature of the offending.
5BSentencing for a standard sentence offence
(1) This section applies in relation to sentencing an offender for a standard sentence offence unless—
(a)the offender was under the age of 18 atthe time of the commission of the offence; or
(b)the offence is heard and determined summarily; or
(c)section 162 makes this section inapplicable because of when the offence is alleged to have been committed.
(2) In sentencing an offender for a standard sentence offence, a court—
(a)musttake the standard sentence into account as one of the factors relevant to sentencing; and
(b)despite section 5(2)(b),must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.
(3) Subsection (2)—
(a)does not limit the matters that a court isotherwise required or permitted to take into account in determining the appropriate sentence for a standard sentence offence; and
(b)is not intended to affect the approach to sentencing known as instinctive synthesis.
(4)A court that sentences an offender for a standard sentence offence must at the time of doing so state the reasons for—
(a)imposing that sentence; and
(b)any non-parole period fixed in accordance with section 11 as part of that sentence if that period is shorter than the period specified in section 11A(4)(a),(b) or (c), as the case requires.
(5)As part of its reasons under subsection (4), acourt must refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence.".
20Content of guideline judgment
After section 6AC(e) of the Sentencing Act 1991 insert—
"(ea) guidelines for sentencing offenders for standard sentence offences;".
21Aggregate sentence of imprisonment
After section 9(1A)(a) of the Sentencing Act1991 insert—
"(ab)the offences comprise at least one offence that is a standard sentence offence; or".
22New section 11A inserted
After section 11 of the Sentencing Act 1991 insert—
"11A Fixing of non-parole period for standard sentence offence
(1)This section applies to a court when fixing, in accordance with section 11, a non-parole period—
(a)for a standard sentence 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 astandard sentence 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 standard sentence offence.
(3) However, this section only applies to a courtwhen fixing a non-parole period for a standard sentence offence if section 5B applied in relation to the sentencing for that offence.
(4)Unless the court considers that it is in the interests of justice not to do so, the courtmust fix a non-parole periodof 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 20years.
(5)In subsection (4) the relevant term is—
(a)if a non-parole period is being fixed fora standard sentence offence, the sentence for that offence; and
(b)if a non-parole period is being fixed inrespect 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 standard sentence offence or in respect of a total effective sentence imposed in respect of 2 or more sentences, none of which is for a standard sentence offence.".
23Aggregate 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 standard sentence offence.".
Division 2—Amendment of the Crimes Act 1958
24Definition inserted
In section 2A(1) of the Crimes Act 1958 insert the following definition—
"standard sentence, in relation to an offence, hasthe same meaning as in the Sentencing Act1991.".
25Standard sentence for murder
(1) The note at the foot of section 3(1) of the Crimes Act 1958 is repealed.
(2) After section 3(1) of the Crimes Act 1958 insert—
"(2) The standard sentence for murder is—
(a)30 years if the court, in determining sentence, is satisfied that the prosecution has proved beyond reasonable doubt that—
(i)the person murdered was a custodial officer on duty or an emergency worker on duty; and
(ii)at the time of carrying out the conduct the accused knew or was reckless as to whether that person was a custodial officer or an emergency worker; and
(b)in any other case, 25 years.
Notes
1See sections 5A and 5B of the Sentencing Act1991 as to standard sentences.
2Murder is a category 1 offence under the Sentencing Act1991.See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.
(3)In subsection (2)(a) custodial officer on duty, custodial officer, emergency worker on duty and emergency worker have the same meanings as in section 10AA of the Sentencing Act 1991.".
26Standard sentence for rape
(1) The note at the foot of section 38(2) of the Crimes Act 1958 is repealed.
(2) After section 38(2) of the Crimes Act 1958 insert—
"(3)The standard sentence for an offence against subsection (1) is 10 years.".
(3) For the note at the foot of section 38 of the Crimes Act 1958substitute—
"Notes
1 An exception applies to this offence—see section 48A.
2 See sections 5A and 5B of the Sentencing Act 1991 asto standard sentences.
3 An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991.Seesection5(2G) of that Act for the requirement toimpose a custodial order for this offence.".
27Standard sentence for sexual penetration of a child under the age of 12
(1)After section 49A(2) of the Crimes Act 1958 insert—
"(3)The standard sentence for an offence against subsection (1) is 10 years.".
(2)For note 3 at the foot of section 49A of the Crimes Act 1958substitute—
"3See sections 5Aand 5B of the Sentencing Act 1991 asto standard sentences.
4An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991.Seesection5(2G) of that Act for the requirement toimpose a custodial order for this offence.".
28Standard sentence for sexual penetration of a child under the age of 16
(1)After section 49B(2) of the Crimes Act 1958 insert—
"(3)The standard sentence for an offence against subsection (1) is 6 years.".
(2)After note 2 at the foot of section 49B of the Crimes Act 1958insert—
"3See sections 5A and 5B of the Sentencing Act 1991 asto standard sentences.".
29Standard sentence for sexual assault of a child under the age of16
(1)After section 49D(2) of the Crimes Act 1958 insert—
"(2A) The standard sentence for an offence against subsection (1) is 4 years.".
(2)After note 3 at the foot of section 49D of the Crimes Act 1958insert—
"4See sections 5A and 5B of the Sentencing Act 1991 asto standard sentences.".
30Standard sentence for sexual activity in the presence of a child under the age of 16
(1)After section 49F(2) of the Crimes Act 1958 insert—
"(2A) The standard sentence for an offence against subsection (1) is 4 years.".
(2)After note 3 at the foot of section 49F of the Crimes Act 1958insert—
"4See sections 5A and 5B of the Sentencing Act 1991 asto standard sentences.".
31Standard sentence for causing a child under the age of 16 to be present during sexual activity
(1)After section 49H(2) of the Crimes Act 1958 insert—
"(2A) The standard sentence for an offence against subsection (1) is 4 years.".
(2)After note 3 at the foot of section 49H of the Crimes Act 1958insert—
"4See sections 5A and 5B of the Sentencing Act 1991 asto standard sentences.".
32Standard sentence for persistent sexual abuse of a child under the age of 16
(1)After section 49J(2) of the Crimes Act 1958 insert—
"(2A) The standard sentence for an offence against subsection (1) is 10 years.".
(2) For the note at the foot of section 49J of the Crimes Act 1958substitute—
"Notes
1 See sections 5A and 5B of the Sentencing Act 1991 asto standard sentences.
2 An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991. Seesection5(2G) of that Act for the requirement toimpose a custodial order for this offence.".
33Standard sentence for sexual penetration of a child or lineal descendant
(1)After section 50C(2) of the Crimes Act 1958 insert—
"(3) The standard sentence for an offence against subsection (1) is 10 years if Bis, at the time of the offence, under the age of 18 years.".
(2) For note 4 at the foot of section 50C of the Crimes Act 1958 substitute—
"4See sections 5A and 5B of the Sentencing Act 1991 asto standard sentences.
5An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991 if Bis, atthetime of the offence, under the age of 18 years. Seesection 5(2G) of that Act for the requirement toimpose a custodial order for this offence.".
34Standard sentence for sexual penetration of a stepchild
(1)After section 50D(2) of the Crimes Act 1958 insert—
"(3) The standard sentence for an offence against subsection (1) is 10 years if Bis, at the time of the offence, under the age of 18 years.".
(2) For note 4 at the foot of section 50D of the Crimes Act 1958 substitute—
"4See sections 5A and 5B of the Sentencing Act 1991 asto standard sentences.
5An offence against subsection (1) is a category 1 offence under the Sentencing Act 1991 if B is, atthetime of the offence, under the age of 18 years. See section 5(2G) of that Act for the requirement toimpose a custodial order for this offence.".
35Standard sentence for culpable driving causing death
After section 318(1) of the Crimes Act 1958 insert—
"(1A)Thestandard sentence for an offence under subsection (1) is 8 years.
Note
See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.".
Division 3—Amendment of the Drugs, Poisons and Controlled Substances Act 1981
36Definition inserted
In section 4(1) of the Drugs, Poisons and Controlled Substances Act 1981 insert the following definition—
"standardsentence, in relation to an offence, hasthe same meaning as in the Sentencing Act1991;".
37Standard sentence for trafficking in a large commercial quantity of a drug or drugs of dependence
After section 71(1) of the Drugs, Poisons and Controlled Substances Act 1981 insert—
"(2)Thestandard sentence for an offence under subsection (1) (other than one constituted by an attempt to traffick) is 16 years.
Note
See sections 5A and 5B of the Sentencing Act 1991 as to standard sentences.".
Part 4—Guideline judgments
38Definition
In section 6AA of the Sentencing Act 1991, inthe definition of guideline judgment, after "offenders" insert "for offences (other than offences against a law of the Commonwealth)".
39New section 6ABA inserted
After section 6AB of the Sentencing Act 1991 insert—
"6ABA Guideline judgments on application of Attorney-General
(1)The Attorney-General may apply to the Court of Appeal for it to give a guideline judgment, or review a guideline judgment previously given by it, if the Attorney-General believes that—
(a)a guideline judgment is required to be given or reviewed to address a broad or systemic sentencing issue; and
(b)the making of the application is in the public interest.
(2) An application is not to be made in respect ofany proceeding before any court or with respect to a particular offender.
(3)An application may include submissions with respect to the framing of the proposed guideline judgment.
(4)The Court of Appeal must state the reasons ifit refuses to give or reviewa guideline judgment on an application under this section.
(5)A guideline judgment given or reviewedonan application under this section must begiven or reviewedseparately from any proceeding before the Court with respect to aparticular offender.".
40Content of guideline judgment
(1)Before section 6AC(f) of the Sentencing Act1991 insert—
"(eb) guidelines as to the appropriate level or range of sentences for a particular offence or class of offence;".
(2)At the end of section 6AC of the Sentencing Act1991 insert—
"(2) Counsel for the prosecution or the defencemay make a submission to a court considering the sentence for an offence, on the level or range of sentences that could be imposed for it, if that level or range has been set out in a guideline judgment.
(3) Subsections (1)(eb) and (2) have effect despite any rule of law or practice to the contrary and any such rule is abolished.".
41Procedural requirements
(1)In section 6AD of the Sentencing Act 1991, after"Court of Appeal"insert "is considering (including on an application by the Attorney-General under section 6ABA) whether to give or review a guideline judgment or".
(2)At the end of section 6AD of the Sentencing Act1991 insert—
"(2) In specifying a period for the purposes of subsection (1)(a), the Court of Appeal must take into consideration the period reasonably required for the Sentencing Advisory Council to—
(a)undertake research and statistical analysis; and
(b)consult with relevant persons within the criminal justice system as well as the general public.
(3) Views stated by the Sentencing Advisory Council under subsection (1)(a) or a submission made under subsection (1)(b) may include a view or submission with respect to the framing of the proposed guideline judgment.".
Part 5—Miscellaneous
42New section 162 inserted
At the end of Part 12 of the Sentencing Act 1991 insert—