Dobinson, Jonathan --- "Structuring Judicial Discretion in Australia" [2005] ALRCRefJl 12; (2005) 86 Australian Law Reform Commission Reform Journal 49

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Reform Issue 86 Winter 2005

This article appeared on pages 49 – 50 & 72 of the original journal.

Structuring judicial discretion in Australia

By Jonathan Dobinson*

Judicial discretion is central to dealing with offenders in the Australian criminal justice system.

In the context of sentencing, discretion is fundamental to ensuring that a sentence is individualised and proportionate; in other words, that the ‘punishment fits the crime’.

There are two ways in which judicial officers assess the factors relevant to determining an offender’s sentence. ‘Instinctive synthesis’ is an approach in which a judicial officer simultaneously takes account of all relevant factors in arriving at an appropriate sentence. This approach places a premium on judicial discretion, and has been the dominant approach to sentencing in Australia.

This may be contrasted with a ‘two-stage approach’ in which, for example, a judicial officer begins with a typical sentence for a ‘standard’ case, and then adjusts the sentence up or down to take account of special circumstances of the case at hand.

Consistency

Consistency in sentencing may relate to the consistency of the same judicial officer in treating like offenders in like cases; or the consistency of different judicial officers within the same jurisdiction in dealing with like situations; or the consistency with which like cases are disposed of between jurisdictions.

Inconsistency in sentencing is commonly associated with the exercise of broad judicial discretion. However, several commentators have disputed this link. Despite claims of inconsistency, many commentators and review bodies have concluded that judges are best placed to undertake the task of sentencing, and that judicial discretion should be retained. The courts have regularly defended the role of judges in sentencing and resisted calls for limiting or structuring judicial discretion.

However, some governments in Australia have sought to introduce judicial, legislative and other methods for promoting consistency in sentencing. These methods include mandatory sentencing, grid sentencing and guideline judgments.

Mandatory sentencing

Mandatory sentencing can take various forms, the chief characteristic being that it either removes or restricts the exercise of judicial discretion in sentencing. The most common form of mandatory sentencing is mandatory minimum penalties in which the legislature sets a minimum threshold in legislation but leaves the court to impose a harsher sanction where it considers it appropriate.

Mandatory sentencing in Australia has included the Western Australian ‘three strikes’ legislation, and the Northern Territory’s mandatory minimum imprisonment laws for property offences. These regimes were controversial and much criticised. They are no longer in operation, but some state legislation still provides for mandatory penalties.

Federal legislation also provides for mandatory penalties in limited circumstances. The Migration Act 1958 (Cth) provides for mandatory penalties of imprisonment for people smugglers. Under s 233C of the Act, unless it can be proven on the balance of probabilities that a person was under the age of 18 years when the offence was committed, the court must impose a sentence of at least eight years if the conviction is for a repeat offence; and at least five years in any other case.

Arguments in favour of mandatory sentencing include that it creates greater consistency by avoiding unduly lenient or harsh sentences; increases certainty of the sentence for courts, prosecutors, and defendants; and increases transparency.

However, mandatory sentencing schemes have been the subject of much criticism. It has been said that these schemes escalate sentence severity; are unable to take account of the particular circumstances of the case; and redistribute discretion so that decisions by the police and prosecuting authorities become increasingly important. Some critics also claim that mandatory sentencing fails to deter criminal behaviour; leads to greater inconsistency; and has had profoundly discriminatory impacts on certain groups.

Grid sentencing

Grid guideline systems establish presumptive sentences or sentencing ranges according to various combinations of offender and offence characteristics. They are usually prescribed in legislation or regulations. Judges are permitted to depart from the guidelines provided reasons are given. The constraint on judges depends on factors such as the breadth of the sentencing ranges, and the variety of circumstances in which departures are permitted.

The closest that an Australian jurisdiction has come to grid sentencing is the sentencing matrix that was debated in Western Australia in the late 1990s. The matrix was promoted as providing greater accountability, transparency and consistency in the sentencing process, and consisted of three levels of control over the judiciary. Level one of the matrix related to ‘reporting offences’ and required the judiciary to report to the executive, in a prescribed format, on their sentencing decisions. Level two involved a regime of ‘indicative sentences’ set by regulations for certain ‘regulated offences’. The third level prescribed sentences for ‘controlled offences’ that would have given very little scope for departure.

The legislation for the first two stages was enacted in November 2000, but the third level was rejected by the Legislative Council by a narrow margin. The matrix was widely criticised and the legislation was eventually repealed.

Guideline judgments

Guideline judgments are generally judgments delivered by an appellate court in the context of a particular case, but they go beyond the points raised in the particular appeal to suggest a sentencing scale, or appropriate starting point, for the category of crime before the court. They can identify the main aggravating and mitigating factors for the offence, or indicate how particular types of sanction are to be used. Alternatively, guideline judgments may deal with issues of general principle such as the effect on sentencing of guilty pleas. Guideline judgments are not binding rules, but they are persuasive for trial courts in subsequent cases and should only be departed from in accordance with a reasoned and justifiable exercise of discretion.

In 1998, the NSW Court of Criminal Appeal delivered its first guideline judgment in the case of R v Jurisic. This case provided guidance on the appropriate penalty for dangerous driving causing death or serious injury.¹ Shortly after Jurisic, the NSW Parliament passed legislation to authorise the Court of Criminal Appeal to give a guideline judgment. Victoria, South Australia and Western Australia now have similar legislation.

Federal legislation does not provide for guideline judgments and may not be able to do so. In Wong v The Queen, the High Court overturned a NSW Court of Criminal Appeal guideline judgment relating to the sentences appropriate for couriers and others with a minor role in the importation of heroin under the Customs Act 1901 (Cth).² The guideline consisted of five levels related to the quantity of the drug involved. A range of penalties was suggested for each level. The High Court held that because the guidelines elevated the quantity of the narcotic to a position of primacy, the guidelines were inconsistent with Commonwealth legislation which sets out the factors a court must consider when sentencing a person for committing a federal offence. The High Court also considered issues arising from Chapter III of the Australian Constitution—the ‘Judicature’ Chapter. Kirby J reserved for future consideration the issue of whether it is possible to formulate sentencing guidelines consistently with the Constitution.

One argument in favour of guideline judgments is that they balance the need for discretion in the individual case with the need for consistency of sentencing decisions. They have also been said to counter calls for mandatory sentencing and legislative sentencing grids; and to offer a more transparent approach to sentencing than judicial intuition. The disadvantages of guideline judgments include that they can unduly restrict judicial discretion, and may be used to increase penalty severity. Some commentators have questioned the utility of guideline judgments in promoting consistency.

Other methods

Mandatory sentencing, grid sentencing and guideline judgments are only three methods that may promote consistency in sentencing. Other mechanisms include sentencing information systems and sentencing advisory councils. Prosecutor and judicial training may also be effective in facilitating consistent sentencing. The ALRC is considering consistency in sentencing as part of its inquiry into the sentencing of federal offenders.

* Jonathan Dobinson is a Senior Legal Officer with the Australian Law Reform Commission. He is currently working on the ALRC inquiry into sentencing.

Endnotes

1. R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209. The guideline was reformulated in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252.

2. Wong v The Queen; Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584.