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The Chief Justice's response to media criticism of judges

07 December 2016

Some recent media reports have suggested that Victorian judges are defying sentencing laws made by the Parliament. Indeed these reports have gone further and characterised the judiciary’s approach as judicial defiance, refusal and reluctance to apply a new law (Courts Defy Minimum Terms, 3 December 2016).  It has also been said that the judges have by-passed the laws.

What is this about?

New sentencing laws commenced in Victoria in 2013 mandating judges to impose minimum terms of imprisonment in certain cases involving gross violence. The new laws do not apply to pre-2013 cases. 

The new law is just that – new. It takes time for these types of cases to come into the criminal justice system. It also takes time for sentencing practice to develop as judges work through very wide-ranging facts in each of the hundreds of cases before the higher courts. Sentencing is not a mechanical, mathematical exercise.

Here are the facts.

The new law applies to certain offending by certain offenders. For example it does not apply to offences committed by children. Where it is applicable the law requires the imposition of a minimum term of imprisonment unless there is a “special reason”.  That “special reason” is defined in the new law and includes certain cases involving mental illness, intellectual disability, acquired brain injury and other disorders, as well some cases involving young offenders or where the case involves a “substantial or compelling” reason.

The first listed basis for a judge to find a “special reason” is if the judge is satisfied that the offender being sentenced has assisted, or given an undertaking to assist, authorities in the investigation or prosecution of another offence.

In the gross violence case of Ravenhorst, that special reason arose.  The offender had a co-offender.  It was alleged the two individuals agreed to lure a victim to an isolated location to violently assault him.

The offender made a statement and gave an undertaking to give evidence against his co-offender. The prosecution told the Supreme Court judge this was of “considerable assistance” (to the police and prosecution) and accepted that special reason arose.

The judge applied the new sentencing law in a conventional way – he declared a special reason existed not to impose the minimum term. The judge specifically said: “That (special) reason is your undertaking to give evidence at the trial (of the co-offender)”.

The Ravenhorst case demonstrates the new minimum term law is being applied.  The exception that is expressly permitted by the Parliament was applied. This was not a matter of a Supreme Court judge defying, refusing to apply, being reluctant or bypassing the new law.  There was nothing untoward in the judge’s “judicial practice”.

The Court of Appeal has recently heard two cases regarding the mandatory minimum term.  

In Hudgson, a County Court judge declared a “special reason” existed to justify not fixing the minimum mandatory term under the new laws. The County Court judge relied on psychological evidence. An appeal was brought by the Director of Public Prosecutions.  

The Court of Appeal said the psychological evidence fell short and the “special reason” was not made out. It resentenced the offender to five years’ imprisonment with a minimum mandatory non-parole period of four years.  In detailed reasons the Court of Appeal found the judge made an error. To be clear, nothing was said about defiance by the judge of the new laws.

In the Hudgson case, the Court of Appeal performed one of its important functions, which is to give guidance to judges working in new sentencing territory.

In Ferrer the Court of Appeal refused an appeal by an offender who had been sentenced by the County Court for a gross violence offence where no special reasons applied and a sentence above the mandatory minimum was imposed.

The few cases that have been decided show that the process is operating in an orthodox way. They show the courts are interpreting and applying the laws as they were made and passed by the Parliament. Judges are going about their sentencing work in a careful, methodical way according to well established legal principles.

It is well worth mentioning that sentencing in some of these cases of gross violence relate to the offence of intentionally causing serious injury.  Sentences well in excess of the mandatory minimum have often been imposed,  indeed, in over 100 cases, involving intentionally causing serious injury in recent years.  This sentencing practice was described by the Court of Appeal in 2013 in the case of Nash.

None of what has occurred with the new minimum term sentencing laws for gross violence has occurred in secret. The reasons for sentence in Ravenhorst,  Hudgson and Ferrer have been available on the Supreme Court website www.supremecourt.vic.gov.au(external link) and via social media, free of charge and accessible by anyone.

The Hon Marilyn Warren AC
Chief Justice of Victoria

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