How sentencing works in Australia
How sentencing works in Australia – why do courts prefer the instinctive synthesis method?
The notion that judges are out of touch with community values on sentencing has become an entrenched sentiment amongst Australians that is proving very difficult to dislodge. One of the reasons for this is a lack of understanding about how the sentencing system works.
In the High Court case of Markarian v The Queen (2005) 228 CLR 357, the High Court wholly endorsed instinctive synthesis – a sentencing methodology by which a judge identifies all the relevant factors in a criminal case, considers their significance, and then makes a final judgment as to what the appropriate sentence should be given all the factors involved. This differs from the alternate two-stage method, in which a judge first arrives at an appropriate sentence based on the nature of the offence, and then deducts or increases the sentence based on the personal circumstances of the offender, such as their age, criminal history, remorse, and so on.
One might wonder why instinctive synthesis is preferred over the two-stage method, which at first glance may seem like a much more consistent system. Simply put, there are too many variables in criminal offending for judges to be forced into a narrow decision-making process. As the High Court notes in Elias v The Queen (2013) 248 CLR 483, the administration of the criminal law involves individualised justice. Only by allowing a court to consider all relevant variables at the same time will a judge be able to give appropriate weight to each of them and tailor sentences to individual cases. It is important to remember that sentencing not only aims to punish, but to rehabilitate offenders and prevent them from reoffending. The two-stage method makes it very difficult to achieve this aim when its primary function is to punish the offence, and not the offender.
In Hili v The Queen [2010] HCA 45, the High Court says that it is ‘consistency in the application of the relevant legal principles’ that is sought, not necessarily consistent outcomes. As long as the court is able to apply the principles of sentencing consistently and fairly in every case, in theory an appropriate sentence should be achieved every time.
Understandably, there are many who do not believe such a thing is possible. Many presume that judges will end up bringing personal biases and preferences into their decisions no matter how hard they try not to.
The reality, however, is very different. A 2017 study of sentencing remarks in the Victorian County Court shows that judges are guided by the sentencing principles of just punishment, denunciation (condemning the crime and the criminal), deterrence (preventing crime), rehabilitation and community protection. The researchers identified predictable trends with how the various factors in a crime affected judges’ decision-making. For instance, when the crime was more serious, judges shifted their focus to just punishment and denunciation, but when offenders were young or it was their first offence, judges shifted their focus to rehabilitation.
There are many more factors to consider when it comes to sentencing in Australia, but the difference between public perception and judicial practice suggests that perhaps the system’s most immediate pursuit should be geared towards another endeavour; education.
If you have any queries, please contact Jourdain Wongtrakun on 03 9612 7336
