By Mark Russell and Benjamin Preiss
Victoria's highest court has found the state government's tough baseline sentencing laws - introduced to crack down on crime - to be unworkable.
In a 4-1 majority decision handed down on Tuesday, the Court of Appeal's Chief Justice Chris Maxwell and Justices Robert Redlich, Pamela Tate and Phillip Priest found the laws were "incapable of being given any practical operation". Justice Simon Whelan disagreed.
The Court of Appeal says the the 'defect in the legislation is incurable'.Credit: Getty Images
Attorney-General Martin Pakula said he would be seeking "urgent advice" from the Department of Justice about what was a "very serious decision".
Baseline sentencing was one of the previous Coalition government's signature policies, forming part of its tough-on-crime agenda.
The four judges dismissed an appeal by the Director of Public Prosecutions, John Champion, SC, against the jail sentence for a father of nine who had sexually abused his daughter.
Mr Champion claimed the sentencing judge had failed to take into account the baseline sentencing laws.
The father, 45, who pleaded guilty to two counts of committing an indecent act with a child under 16 and four counts of incest over a two-year period from late 2012 to November 2014, was jailed in July for six years and eight months with a non-parole period of four years.
In a Victorian first, the case was heard in the Supreme Court because some of the offending occurred after state Parliament introduced baseline sentencing in November 2014.
Baseline sentences are specified prison sentences that Parliament intended as the median sentence for seven nominated offences, including incest.
The maximum penalty for incest is 25 years in jail, while for committing an indecent act on a child under 16 it is 10 years in jail.
In their judgment on Tuesday, the four appeal judges said the DPP maintained that the 10-year period specified as the baseline sentence for incest was intended to become "the guide post or yardstick" which the sentencing judge should "steer by".
"It followed, so the Director submitted, that the sentencing judge should have treated the 10-year period as a starting point," the judges said.
But the judges pointed out that in the baseline sentencing provisions, Parliament's stated intention was that, at some unspecified time in the future, the "median sentence" for the offence of incest would be a sentence of 10 years' jail.
"Crucially, however, the legislation is wholly silent as to the means by which a judge imposing sentence for incest is to do so 'in a manner compatible with' the intention to achieve the intended median sentence in the future," the judges said.
"In the present case, the defect in the legislation is incurable.
"Parliament did not provide any mechanism for the achievement of the intended future median, and the Court has no authority to create one, as the Director of Public Prosecutions properly conceded. To do so would be to legislate, not to interpret."
The appeal judges said they wanted to emphasise that this was "no mere technicality".
"What these reasons have demonstrated is that the problem is a fundamental one.
"Parliament's stated intention cannot be given effect to because the provisions contain no mechanism for its implementation and it is beyond the function of the Court to devise one.
"The sentencing method propounded by the Attorney-General — had it been enacted — would have overthrown fundamental principles of sentencing law."
Justice Whelan disagreed and said he would have upheld the appeal and jailed the father for nine years and four months with a non-parole period of six years.
Mr Pakula accused the previous Coalition government of "creating this mess".
"We're seeking urgent advice from the Department of Justice," he said.
However, Mr Pakula said the government recognised there was concern in the community about sentencing for serious crimes.
"We will have to come up with a regime that gives effect to those concerns," he said.
Mr Pakula confirmed there were cases "queued up" in the courts that would have had the baseline applied to them.
He said his department was speaking to the DPP today about whether those cases can proceed and have the baseline provisions ignored.
"This is a very serious decision by the Court of Appeal."
Opposition attorney-general John Pesutto it was an "unbelievable rebuff" of Parliament's will for the Court of Appeal to strike down a law that was passed with "overwhelming parliamentary support".
"When are the courts going to finally realise that the community is sick and tired of seeing inadequate sentences being handed down for serious violence and sex offences," he said.
Mr Pesutto said the Coalition was ready to work with the government to pass legislation to "fix the problem that the Court of Appeal's decision has created."
Law Institute of Victoria president Katie Miller said the baseline sentencing legislation required urgent amendment after Tuesday's Court of Appeal decision.
Ms Miller said the legislation did not achieve its purpose of providing greater transparency in the sentencing process.
"The legislation does not work. It is overly complex. We believe offenders and victims alike should be able to understand why any given sentence was imposed in a particular case," she said.