Alternatively, sentencing guidelines may be seen as a novel legal instrument (neither common law nor delegated legislation). This appears to be the approach adopted in England and Wales, though the nature and status of sentencing guidelines as a legal instrument are yet to be tested in that jurisdiction. Even if sentencing guidelines are held to be a novel legal instrument, there is still a risk that judicial officers might be prohibited from membership if membership of a body that creates that legal instrument is considered incompatible with the role of a judicial officer. The model of approval will most likely affect the type of sentencing guideline that may be produced. If sentencing guidelines were not to be binding (that is, if a court were not required to regard to’ or in a manner ‘follow’, ‘have ‘sentence consistent with’ a sentencing guideline) then it would be more likely that judicial officers could be members of a sentencing guidelines council that allowed for council approval of sentencing guidelines, without approval by the Court of Appeal. Further, such an instrument might not be seen as directing a judicial outcome. A non-binding sentencing guideline, however, would most likely not achieve the intended purposes of a sentencing guidelines council. The Sentencing Advisory Council invites views from stakeholders on which of these approval models would be most appropriate in light of the purposes of the sentencing guidelines council, and the constitutional limitations. In addition to seeking stakeholders’ views on the manner in which sentencing guidelines should be approved, the Sentencing Advisory Council also seeks stakeholders’ views on whether sentencing guidelines should take effect immediately after they are published, or after a period of time to allow stakeholders to adjust (Question 7). The Sentencing Advisory Council also seeks stakeholders’ views on what notice requirements should apply to the finalisation and approval of sentencing guidelines in Victoria (Question 8).
Alternatively, sentencing guidelines may be seen as a novel legal instrument (neither common law nor delegated legislation). This appears to be the approach adopted in England and Wales, though the nature and status of sentencing guidelines as a legal instrument are yet to be tested in that jurisdiction. Even if sentencing guidelines are held to be a novel legal instrument, there is still a risk that judicial officers might be prohibited from membership if membership of a body that creates that legal instrument is considered incompatible with the role of a judicial officer. The model of approval will most likely affect the type of sentencing guideline that may be produced. If sentencing guidelines were not to be binding (that is, if a court were not required to ‘follow’, ‘have regard to’ or ‘sentence in a manner consistent with’ a sentencing guideline) then it would be more likely that judicial officers could be members of a sentencing guidelines council that allowed for council approval of sentencing guidelines, without approval by the Court of Appeal. Further, such an instrument might not be seen as directing a judicial outcome. A non-binding sentencing guideline, however, would most likely not achieve the intended purposes of a sentencing guidelines council. The Sentencing Advisory Council invites views from stakeholders on which of these approval models would be most appropriate in light of the purposes of the sentencing guidelines council, and the constitutional limitations. In addition to seeking stakeholders’ views on the manner in which sentencing guidelines should be approved, the Sentencing Advisory Council also seeks stakeholders’ views on whether sentencing guidelines should take effect immediately after they are published, or after a period of time to allow stakeholders to adjust (Question 7). The Sentencing Advisory Council also seeks stakeholders’ views on what notice requirements should apply to the finalisation and approval of sentencing guidelines in Victoria (Question 8).
A_Sentencing_Guidelines_Council_for_Victoria_Issues_Paper_0.docx