Using SACStat data in sentencing

Why are statistics relevant to sentencing?

Courts apply an instinctive synthesis approach to sentencing. This means that courts take a range of considerations into account in deciding an appropriate sentence in a case.[1]

One of the factors that courts must consider is current sentencing practices.[2] This helps courts to achieve consistency and promote the principle of equality before the law.[3] The Court of Appeal has said that current sentencing practices will usually involve consideration of both ‘relevant sentencing statistics ... and ... sentencing decisions in comparable cases‘.[4]

How does SACStat data help with sentencing?

SACStat data can be used in different ways in sentencing. For example, the data can highlight:

• the range of recent sentences for an offence[5]
• the median imprisonment length for an offence[6]
• changes in sentencing practices over time[7]
• the apparent clustering of sentencing outcomes for an offence based on particular factors in a case[8]
• the least and most severe sentences for an offence.[9]

What principles apply to using statistics in sentencing?

Four important principles apply when using SACStat data in sentencing:

1. Sentencing statistics primarily offer a ‘rough cross-check‘[10]
2. Sentencing statistics are just one consideration among many, not a ‘controlling factor‘[11]
3. Sentencing statistics ‘do not set the metes and bounds‘ of what a permissible sentence is[12]
4. Sentencing statistics are most useful when coupled with comparable cases.[13]

What are the ‘inherent limitations‘ of sentencing statistics and comparable cases?

Courts have often said that sentencing statistics have ‘inherent limitations‘.[14] This is because ‘the many details which would explain the reasons for a particular sentence are omitted from the data‘.[15] Statistics cannot tell the court whether the offenders in the data pleaded guilty, had prior criminal histories, assisted authorities, used a weapon or other important factual circumstances.

There are also limitations to trying to rely exclusively on comparable cases in sentencing.[16] The cases reviewed may not be truly representative of broader sentencing practices. By comparison, sentencing statistics more exhaustively represent the entire range of sentencing practices. Comparable cases are also rarely available in the summary jurisdiction. This means that SACStat data for the Magistrates‘ Court is usually the only source of information about current sentencing practices in that jurisdiction.

Where else can I find sentencing statistics?

One of our statutory functions is ‘to provide statistical information on sentencing‘.[17] We created SACStat to help fulfil this function. In addition:

• our Sentencing Snapshots provide five years of higher courts data on the types and lengths of sentences for 18 common or high-profile principal offences
• our various statistical reports include in-depth analyses of current sentencing practices.

To find out more, visit the Sentencing Advisory Council website

[1] Markarian v The Queen [2005] HCA 25.

[2] Sentencing Act 1991 (Vic) s 5(2)(b).

[3] Wong v The Queen [2001] HCA 64 [65], [89].

[4] DPP v CPD [2009] VSCA 114 [78] (emphasis added).

[5] See, for example, ED v The Queen [2011] VSCA 397 [90]; DPP v Sismanoglou [2016] VSCA 87 [46].

[6] See, for example, WCB v The Queen [2010] VSCA 230 [63].

[7] See, for example, R v Lucas [2021] VSC 81 [212]-[214].

[8] See, for example, Nguyen v The Queen [2016] VSCA 198 [83]-[86].

[9] See, for example, Ashdown v the Queen [2011] VSCA 408 [12]-[16].

[10] Russell v The Queen [2011] VSCA 147 [61]; Short v The Queen [2016] VSCA 210 [59].

[11] DPP v Dalgliesh (a pseudonym) [2017] HCA 41 [68]. See also Hardwick (a pseudonym) v The Queen [2021] VSCA 67 [44].

[12] Hardwick (a pseudonym) v The Queen [2021] VSCA 67 [43]-[44]; DPP v OJA [2007] VSCA 129 [30].

[13] Davy v The Queen [2011] VSCA 98 [42]; Baroch & Anor v The Queen [2022] VSCA 90 [32].

[14] See, for example, R v Bangard [2005] VSCA 313 [39]; R v AB (No 2) [2008] VSCA 39 [42].

[15] DPP v Dawes [2023] VCC 2378 [91].

[16] Hudson v The Queen [2010] VSCA 332, [29]-[31] (‘“Like“ cases can only, at best, provide a general guide or impression as to the appropriate range of sentences ... [and] can only provide limited assistance to this Court‘). See also Russell v The Queen [2011] VSCA 147 [4].

[17] Sentencing Act 1991 (Vic) s 108C(1)(b).