Chief prosecutor slams judges for soft sentencing and failing to impose maximum penalties

VICTORIA’S top prosecutor says criminals are getting slaps on the wrist because courts won’t impose even close to maximum penalties.

Prosecutor Gavin Silbert says the wrong sentences are being handed down to criminals.

VICTORIA’S top prosecutor says criminals are getting slaps on the wrist because courts won’t impose even close to maximum penalties.

Chief Crown Prosecutor Gavin Silbert, QC, says the wrong sentences are being handed down with no chance to fix them.

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In a High Court fight set to further simmering tensions between prosecutors and judges, Mr Silbert argued they were being “dragged kicking and screaming” into contests they couldn’t win.

Mr Silbert said criminals were getting just a fraction of the maximum penalty because too much emphasis was being given to current sentencing practices.

“What occurs as a result of that is that a wrong sentence is self-perpetuating and it begets further wrong sentences with no opportunity for the Director (of Public Prosecutions) to correct the problem,” he told the court.

“There is no way in the world of getting the sentences up.”

Tensions between prosecutors and judges are growing over the sentencing of criminals.

Mr Silbert said “inappropriate sentences” had outraged the community and forced the promise of new laws that dictate harsh minimum sentences.

“There appears to be an ongoing tension between the legislature and the courts,” he told the court.

“Indeed, there is now a febrile bidding war and a phony election campaign with one side promising mandatory sentencing at the present time.

“The genius of the common law is that it can accommodate community expectations if properly applied.”

He was appearing in the High Court after a failed bid to increase the sentence of a rapist who assaulted two girls over four years. One, aged just 13, became pregnant. After pleading guilty, the man was jailed for 5½ years, which the DPP argued was manifestly inadequate.

But the Court of Appeal dismissed the case, despite saying the sentence was not high enough.

It said had it not been for the “constraints of current sentencing which ... reflect the requirements of consistency, we would have had no hesitation in concluding that the sentence imposed on the respondent was manifestly inadequate”.

Mr Silbert said it was an example of the Court of Appeal “improperly” elevating a comparison with other sentences above other criteria including the gravity of the offence, the maximum sentence and prior convictions.

“What the Court of Appeal has done, and does, is indulge in a form of algorithmic sentencing to the extent that it commences with other cases, and we submit that is the wrong place to commence the sentencing process.”

He said in one case a judge reviewed 276 cases before making a sentencing decision.

“The suggestion we are not engaged in mathematical sentencing, it is submitted, is fallacious,” he said.

Sentences handed down by judges are much less than the maximum available.

Sentencing Advisory Council statistics for the years 2010 to 2015 show judges are handing down much less than maximum sentences available to them. Rapists were given a median sentence of six years when the maximum available sentence was 25 years. Only 3.5 per cent of rapists were jailed for more than 15 years.

Murderers were sentenced to 20 years’ jail when the maximum was life, while drug traffickers were getting seven years of a maximum 15.

Criminals convicted of aggravated burglaries were sentenced to an average of three years’ jail, with none given more than 10 years.

Attorney-General Martin Pakula said he was aware of the High Court case and its potential impact on court sentencing. He said he had been briefed on the case.

“I meet regularly with the Office of Public Prosecutions — including with the director and the chief crown prosecutor,” he said.

“In that context, the chief crown prosecutor has raised the High Court appeal given its potential significance for sentencing practices. I await the outcome of the High Court’s deliberation with interest.”

The DPP refused to comment.

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