Sentencing Advisory Council

In 2000, the Victorian Government requested a review of aspects of Victoria's sentencing laws, which was undertaken by Professor Arie Frieberg. The 2002 report arising out of that review, Pathways to Justice,[7] recommended a number of improvements to Victoria's sentencing system, including the establishment of a Victorian Sentencing Advisory Council. That legislation was passed in 2003 and the Council formally came into operation in 2004. Professor Frieberg was the inaugural Chair of the Council from 2004 to his retirement in 2022[8] and was also the Chair of the Tasmanian Sentencing Advisory Council until 2021.[9]

The functions of the Council are outlined in legislation,[10] and include:

• providing statistical information on sentencing to the judiciary and other interested persons
• conducting research on sentencing matters
• gauging public opinion on sentencing matters
• consulting with government departments, the general community and other interested persons on sentencing matters
• advising the Attorney-General on sentencing matters
• providing written views in the event that the Court of Appeal is developing a guideline judgment.

The directors of the Council come from a diverse background of experiences in order to represent the views of the community as well as experts in issues relating to sentencing. The legislation establishing the Council outlines a number of specific experiences or qualifications that directors must have in order to be nominated by the Attorney-General and then appointed by the Governor. Those experiences or qualifications include:[11][12]

• two people with experience in community issues affecting courts
• a person with experience as a senior member of the academic staff of a tertiary institution
• a person who is a member of a victim of crime support or advocacy group
• a person involved in the management of a victim of crime support group or advocacy group and who is a victim of crime or representative of victims of crime
• a police officer of the rank of senior sergeant or below
• a highly experienced prosecution lawyer
• a highly experienced defence lawyer
• others with experience in the operation of the criminal justice system.

The Council provides statistical information on sentencing to assist courts and legal practitioners. Courts must consider current sentencing practices, which include both relevant sentencing statistics and sentences imposed in comparable cases, when deciding an appropriate sentence.

The statistics published by the Council also provide insights on sentencing trends and characteristics of sentenced offenders and are used by media, researchers, policy makers, students and the general community.[13]

The Council publishes sentencing statistics in a variety of formats, including in research reports, in Sentencing Snapshots,[14] and in an online statistics database (SACStat).

Since it was established in 2004, the Council has published well over 100 research reports. The reports have covered a range of topics related to sentencing, including:

• sentencing practices for certain offences, such as driving whilst disqualified or suspended,[15] causing serious injury or death while driving,[16] homicide,[17] theft,[18] possessing, cultivating or trafficking drugs,[19] breaching family violence orders,[20] breaching non-family violence orders,[21] armed robbery,[22] intentionally or recklessly causing serious injury,[23] aggravated burglary,[24] sex offences,[25] breaches of court orders,[26] animal cruelty offences,[27] firearms offences,[28] image-based sexual abuse offences,[29] threat offences[30] and stalking[31]
• jurisprudential issues, such as the relevance of deportation[32] and adverse media coverage[33] to sentencing
• appropriate penalty levels for certain offences, such as repeat drink driving,[34] negligently causing serious injury,[35] preparatory offences,[36] and sex offences[37]
• the appropriateness and use of certain sentencing orders generally, such as time served prison sentences,[38] suspended sentences,[39] community orders,[40] imprisonment,[41] and fines[42]
• the appropriateness and use of sentencing orders for specific offenders, such as high-risk offenders,[43] children and young adults,[44] older offenders,[45] and family violence offenders[46]
• a statistical profile of Victoria’s prison population[47]
• appeals against sentences in Victoria[48]
• reoffending rates (recidivism) in Victoria[49]
• other issues relating to sentencing, such as sentence indications,[50] sentencing guidance,[51] community views on sentencing,[52] changes to sentencing law,[53] parole,[54] mandatory sentencing,[55] sentencing of offences motivated by hatred or prejudice,[56] sentencing of offenders in the Koori Court,[57] provocation,[58] gender differences in sentencing outcomes,[59] guilty pleas,[60] and restitution and compensation orders.[61]

One of the Council’s statutory functions is to advise the Attorney-General on sentencing matters. Over the years, Victoria’s Attorney-General has given the Council terms of reference seeking its advice on a range of topics, such as the sentencing of family violence offenders,[62] reforms to restitution and compensation orders[63] and the introduction of a sentencing guidelines council.[64] The Council’s responses to terms of reference have resulted in significant changes to Victorian sentencing laws, including changes to maximum penalties for offences such as negligently causing serious injury[65] and breaches of intervention orders,[66] the abolition of suspended sentences,[67] the introduction of a sentence indication scheme[68] and the addition of hatred and prejudice as an aggravating factor that courts must take into account in sentencing.[69]

The Council conducts a number of community engagement activities in order to promote community understanding of sentencing. These include hosting an online interactive sentencing simulation known as ‘Virtual You be the Judge’,[70] presenting face-to-face community education sessions for adults, developing and publishing teaching materials and lesson plans for secondary teachers and students,[71] and developing and publishing plain-language guides to sentencing law and practice.[72]