New Victorian baseline sentencing laws designed to be tough on crime are under scrutiny as prosecutors appeal a father's six-year jail sentence for incest with his teenage daughter.
The man - who can't be named for legal reasons - was sentenced to a maximum of six years and eight months prison in July under new legislation that set a median prison sentence for some serious offences.
The reforms increased the median sentence for incest with a minor to 10 years.
The Director of Public Prosecutions has appealed the man's sentence in Victoria's Supreme Court on the grounds there was an error in the way the sentencing judge interpreted the new laws.
The Criminal Bar Association has also joined the appeal but is focusing on the sentencing precedents the case sets.
The appeal has highlighted the challenge facing judges when following the new sentencing guidelines.
"It's difficult to interpret the scheme," DPP John Champion SC told the court on Friday.
Five Supreme Court justices have been asked to look at the man's original sentence set by Justice Lex Lasry.
The charges would have normally gone before the County Court, but were escalated to the Supreme Court to allow Justice Lasry to examine how the state's first baseline sentence would work in practice.
Justice Lasry outlined his calculations and the reasons for setting a sentence below the 10-year median in 22 pages of notes.
On Friday, Justice Simon Whelan said the DPP's appeal reflected that it thought the sentencing act was unclear.
"You have used 'it's difficult to interpret the scheme' and 'as best as you can understand' and 'the problem with the scheme' ... in your submissions," the judge said.
"It's clear enough the act doesn't set out how the provisions are designed to work."
Defence counsel Tim Marsh opposed the appeal, but noted the complexity of calculating sentences using medians.
"It's such a dramatic departure to how statute has sought to shape sentencing that it's unprecedented," he said.
How to decide which cases deserve to go above or below median sentences seems to come down to serendipity, he said.
Justice Chris Maxwell said the new laws seemed to limit judicial direction.
"It's occurred to me this is mandatory sentencing, isn't it?" he said.
Baseline sentencing has been criticised by the Law Institute of Victoria for its potential to result in unjust sentences and court delays.
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