51. Standard Sentence Scheme (Vic) — Concept, History & Application¶
Scope and currency
Technical reference · ss 5A–5B, 11A Sentencing Act 1991 (Vic) · current to 7 July 2026
What it is: a standard sentence is the sentence for a listed offence in the middle of the range of objective seriousness (s 5A). It is a statutory guidepost, applied inside instinctive synthesis — not a starting point, not a floor, not a mandatory minimum. Read the citation caution at the end before citing any case as "the standard-sentence authority": the source material's Brown citations did not survive verification.
1 · What a standard sentence IS¶
Definition (s 5A): s 5A(1)(a) — a "standard sentence offence" is an offence for which an Act specifies a standard sentence. s 5A(1)(b) — the standard sentence is the sentence for an offence that, "taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness." Objective factors are judged by the nature of the offending alone; matters personal to the offender (plea, remorse, priors, Verdins, Bugmy) are excluded from the standard-sentence construct.
Purpose: per the Second Reading Speech referenced in the sources, the scheme creates a "legislative yardstick" — sitting alongside the maximum penalty — for gauging the seriousness of an offence and promoting consistency and transparency. It does not mandate any particular sentence.
What it is NOT: not a starting point; not a floor or minimum; not a presumptive sentence; not a two-stage anchor. Treating it as any of these is the classic appellable error the scheme is drafted to prevent (s 5B(3)).
2 · When it came into law — and what it replaced¶
Commencement: introduced by the Sentencing Amendment (Sentencing Standards) Act 2017 (Vic); commenced 1 February 2018; applies only to standard-sentence offences alleged to have been committed on or after that date, and does not apply to offences heard and determined summarily or to offenders aged under 18 (s 5B(1)). Verified against legislation.vic.gov.au.
What it replaced — the baseline sentences scheme: the standard-sentence scheme succeeded the baseline sentences scheme (Sentencing Amendment (Baseline Sentences) Act 2014 (Vic)), which set a "median sentence" for certain offences (e.g. incest, a baseline of 10 years). In DPP v Walters (a pseudonym) [2015] VSCA 303; (2015) 49 VR 356 the Court of Appeal held a median sentence is "an accidental or contingent statistic" — not a measure of offence seriousness and not capable of representing the sentence for an offence of mid-range seriousness — and warned that using it risked an improper two-stage approach. That reasoning rendered baseline sentences effectively unworkable; Parliament repealed and replaced the scheme with standard sentences from 1 February 2018.
3 · How it is applied — the mechanics¶
STEP 1 Take the standard into account (s 5B(2))
→ s 5B(2)(a): the court must take the standard sentence into account as one of the factors relevant to sentencing. → s 5B(2)(b): when having regard to current sentencing practices, the court must only have regard to sentences previously imposed for the offence as a standard-sentence offence (i.e. post-1 Feb 2018 practice) — earlier practice is put to one side.
STEP 2 Use it as a guidepost inside instinctive synthesis (s 5B(3))
s 5B(3): the scheme does not limit the matters the court may otherwise consider and is not intended to affect the approach to sentencing known as instinctive synthesis. The maximum penalty and the standard sentence operate together as twin statutory guideposts. The standard is "simply another factor" in the synthesis — it has no dominant role and does not require the court to inflate a sentence artificially. The court is not obliged to classify the offence on a scale (low / mid / high) against a hypothetical mid-range instance; it places the offending in its statutory context and synthesises. (Compare the NSW standard non-parole analogue, Muldrock v The Queen [2011] HCA 39.)
STEP 3 Give reasons that engage the standard (s 5B(4)–(5))
→ s 5B(4): the court must state its reasons for the sentence imposed for a standard-sentence offence. → s 5B(5): as part of those reasons the court must refer to the standard sentence and explain how the sentence it imposes relates to that standard sentence. → Non-parole (s 11A): s 11A prescribes standard non-parole percentages tied to the standard sentence; if the judge fixes a shorter non-parole period than the prescribed percentage, s 5B(4)(b) requires explicit reasons.
4 · Case law¶
| Case | Citation | What it holds / why it matters here |
|---|---|---|
| DPP v Dalgliesh (a pseudonym) | [2017] HCA 41 | The High Court on current sentencing practices (s 5(2)(b)) — practices are a yardstick, not a straitjacket; manifest inadequacy can be found despite consistency with past practice. Frequently mis-cited as standard-sentence authority — it is not about ss 5A–5B. |
| DPP v Walters (a pseudonym) | [2015] VSCA 303; (2015) 49 VR 356 | The predecessor baseline / median scheme: a median sentence is "an accidental or contingent statistic", not a measure of seriousness. The catalyst for replacing baseline sentences with the standard-sentence scheme. |
| Boulton v The Queen | [2014] VSCA 342 | The guideline judgment on community correction orders. Included for contrast: a true statutory guideline judgment — the standard-sentence scheme has no equivalent Court of Appeal guideline judgment. |
| Muldrock v The Queen | [2011] HCA 39 | NSW standard non-parole period analogue: a sentencing judge is not obliged to classify objective seriousness on a scale, and must not treat the standard figure as a starting point. Persuasive on how a "standard" operates within synthesis. |
Citation caution — verify before you cite a case as the standard-sentence authority
The source material gives Brown v The Queen [2020] VSCA 212, and on a further check Brown v The Queen [2020] VSCA 286, as the standard-sentence appellate authority. Both are wrong (checked on AustLII / Victorian Reports): [2020] VSCA 212 is Brown v The Queen (2020) 62 VR 491, a Verdins / personality-disorder decision on moral culpability; [2020] VSCA 286 is Haberman v DPP, a theft sentence appeal. No single canonical Victorian Court of Appeal guideline judgment on the ss 5A–5B scheme could be verified — the operative principles above are statutory (s 5B), so cite the Act, not a case, for the guidepost / no-two-stage propositions.
5 · Standard sentence values (VSM / Sentencing Notes MC; cross-checked to s 5A)¶
Read the scale, not a fraction of the maximum: standard sentences sit well below the statutory maxima — e.g. sexual penetration of a child under 12 carries a 25-year maximum but a 10-year standard, the same as adult rape. Each figure anchors mid-range objective seriousness, not a proportion of the ceiling.
| Offence | Standard sentence |
|---|---|
| Murder — victim an emergency / custodial officer on duty | 30 years |
| Murder — all other cases | 25 years |
| Homicide by firearm | 13 years |
| Rape (s 38) | 10 years |
| Sexual penetration of a child under 12 (s 49A) | 10 years |
| Sexual penetration of a child under 16 (s 49B) | 6 years |
| Sexual assault of a child under 16 (s 49D) | 4 years |
| Sexual activity in the presence of a child under 16 (s 49F) | 4 years |
| Causing a child under 16 to be present during sexual activity (s 49G) | 4 years |
| Persistent sexual abuse of a child under 16 (s 49J) | 10 years |
| Sexual penetration of a child or lineal descendant under 18 (s 50C) | 10 years |
| Sexual penetration of a step-child under 18 (s 50D) | 10 years |
| Culpable driving causing death (s 318) | 8 years |
| Trafficking a large commercial quantity (s 71 DPCSA 1981) | 16 years |
6 · Looks in scope but ISN'T — the traps¶
| Offence / scenario | Why it is not standard-sentenced | Provision |
|---|---|---|
| s 71AA trafficking (commercial quantity) | max Level 2 (25 yrs), or Level 1 (life) if at the direction of a criminal organisation; absent from the standard-sentence tables — no standard sentence. | DPCSA s 71AA |
| Rape by compelling sexual penetration (s 39) | a Category 1 offence (mandatory custody, s 5(2G)) — but not a standard-sentence offence. | Crimes Act s 39 |
| Agg. home invasion / agg. carjacking / intentionally causing serious injury | Category 1 offences (mandatory custody, s 5(2G)) but absent from the standard-sentence lists; no standard value in the sources — do not assign one. | s 5(2G) |
| Attempt / conspiracy / incitement to a standard-sentence offence | the inchoate offence is itself not standard-sentenced. | s 5A(2) |
| Offender under 18 / summary hearing | scheme switched off. | s 5B(1) |
Two interactions worth pinning: (1) No aggregate — s 9(1A)(ab): a court must not impose an aggregate sentence of imprisonment where any offence is a standard-sentence offence; each such count is sentenced individually. (2) The plea statement — s 6AAA still applies: state the sentence and non-parole period that would have been imposed but for the guilty plea. Category ½ (mandatory custody, ss 5(2G)/5(2H)) is a separate axis from the standard-sentence scheme — identify each independently.
Currency watch¶
• 1 February 2018 — scheme commenced (Sentencing Amendment (Sentencing Standards) Act 2017 (Vic)); applies to offences committed on or after that date.
• Statute — verified ss 5A, 5B, 11A; commencement and offence values cross-checked to legislation.vic.gov.au and the s 5A-linked standard-sentence table.
• Case law — externally verified Dalgliesh [2017] HCA 41, Walters [2015] VSCA 303 / (2015) 49 VR 356, Boulton [2014] VSCA 342, Muldrock [2011] HCA 39 confirmed on AustLII / Victorian Reports. The source material's Brown [2020] VSCA 212 / [2020] VSCA 286 citations were rejected on verification.