Victorian Court of Appeal on baseline sentences

DPP v Walters [2015] VSCA 303

The Victorian Court of Appeal, in a four to one majority, has found baseline sentencing provisions in the Sentencing Act 1991 (Vic) (the Act) to be “incapable of being given any practical operation”. 


The Director of Public Prosecutions (DPP) appealed the sentence imposed on the respondent, Daniel Walters, by the sentencing judge in relation to a charge of incest.

On 15 July 2015 the respondent pleaded guilty to two charges of committing an indecent act with a child under 16 and four charges of incest. One charge of incest occurred on 15 November 2014 to which the baseline sentencing provisions applied.

In 2014 the Sentencing Amendment (Baseline Sentences) Act 2014 (Vic) amended the Act to include provisions relating to baseline sentences. The provisions apply to any baseline offence committed on or after 2 November 2014. Incest is a baseline offence and per section 44(2A) of the Crimes Act 1958 (Vic) the baseline sentence is 10 years.

The sentencing judge sentenced the respondent to a total effective sentence of six years and eight months imprisonment, with a non-parole period of four years. The sentencing judge concluded that the baseline sentencing provisions “did not require him to impose a different sentence from that which he would otherwise have imposed”.

The DPP argued the sentence imposed was manifestly inadequate and that the sentencing judge in imposing the sentence for the charge of incest, failed to treat the baseline sentence as a guidepost.


The Court of Appeal dismissed the DPP’s appeal, stating that the conclusion of the sentencing judge was correct but providing different reasons for their decision. In a joint decision by Justices Maxwell P, Redlich, Tate and Priest, their honours interpreted the baseline provisions of the Act, in particular sections 5A(1)(b) and 5A(3)(a).

Section 5A(1)(b) of the Act declares Parliament’s intention as follows:

The period specified as the baseline sentence for the offence is the sentence that the Parliament intends to be the median sentence for sentences imposed for that offence in accordance with this section.

In addition section 5A(3)(a) requires that when a court is sentencing an offender for a baseline offence, they must do so in a manner compatible with section 5A(1)(b).

The Court held that whilst the statement of intention in section 5A(1)(b) is comprehensible, 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 Court held that this defect was incurable and it is not the role of the judiciary to fill the legislative gap.

Further, the Court held that given the nature of a median as a statistical product, the median sentence is “unknowable until the end of the relevant counting period”. Ultimately a sentencing judge when imposing a sentence for incest has “no way of knowing what median will be at the end of the counting period”. In addition their Honours found the provisions in the Act give no indication of the period in which the median is to be realised.

The Court also explored the issue of sentencing law more broadly. The Court found there is no sentencing law of any comparable jurisdiction where a sentencing judge is obliged to impose a sentence “by reference to the intended statistical product of a series of sentences, being a series of indefinite length and indeterminate content”. The Court also stated that a median sentence in no way measures the seriousness of an offence and the median does not indicate a point on a spectrum of culpability.

Given that it is impossible to give meaningful content to the obligation in section 5A(3)(a), the Court held that the baseline provisions were “incapable of being given any practical operation”. The Court stressed that this is not a mere technicality and Parliament’s intention cannot be given effect to because the legislation fails to contain a provision for its implementation.

Justice Whelan in dissent held that the sentencing judge’s analysis of the baseline provisions was correct but did not accept that the legislation was incapable of practical application.


As a consequence of the decision, offenders awaiting sentencing for serious offences committed on or after 2 November 2014 which contain a baseline provision, will not have the baseline provision considered by the sentencing judge.

Following the decision, the Attorney-General Martin Pakula said he would be seeking “urgent advice” from the Department of Justice. The issue has also been referred to the Sentencing Advisory Council.

The baseline provisions were introduced by the previous coalition government and at this stage it is unclear how the current government will respond to the Court of Appeal decision. In the future, there may be amendment to the baseline provisions of the Act, or the provisions may be repealed outright. The opposition Attorney-General said the coalition is willing to work with the current government to pass new legislation.

Victoria Legal Aid Chambers represented the accused person. According to Victoria Legal Aid, the DPP is considering its position which may include a further appeal to the High Court.

The full text of the decision can be found here

Cara Nottle is a Summer Clerk at King & Wood Mallesons