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Sentencing Methodology

The content on this page was last reviewed on 03 February 2015.


Recent cases alert
Tran v The Queen [2017] VSCA 346 — resorting to a minute examination of individual circumstances of offending and offenders in attempting to demonstrate sentence not reasonably open is counter to concept of instinctive synthesis.
Jaafar v The Queen [2017] NSWCCA 223 — sentencing judge in error by engaging in ‘two-tier’ sentencing rather than instinctive synthesis approach, contrary to principles in Markarian v The Queen [2005] HCA 25.
*Guidance from these cases has not yet been incorporated into the commentary

1. Overview

A sentencing judge must balance many different and conflicting factors to reach a sentence that is just in all of the circumstances of each individual case. Underlying this method is the principle of individualised justice (described below).

In Australia a sentencing judge must employ an ‘instinctive synthesis’ approach to sentencing. The High Court has repeatedly endorsed the instinctive synthesis approach to sentencing and has rejected other approaches, such as the ‘two-stage’ approach to sentencing.

2. Instinctive synthesis

The High Court has affirmed that the ‘instinctive synthesis’ approach is the appropriate method for determining a suitable sentence. 1 In Markarian v The Queen [2005] HCA 25 McHugh J described this approach at [51] as:

…the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.

In Barbaro v The Queen [2014] HCA 2 the Court affirmed that sentencing is not a mathematical exercise. 2  The plurality stated at [34]:

Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentencing cannot, and should not, be broken down into some set of component parts. As the plurality said in Wong v The Queen, “[s]o long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform”

3. Individualised justice

The Australian Law Reform Commission has described the principle of individualised justice as requiring ‘the court to impose a sentence that is just and appropriate in all the circumstances of the particular case’. 3 While there is an inherent tension between individualised justice and consistency, 4 ‘they are both fundamental to a fair sentencing system’. 5 Professor Freiberg has noted that current Australian practice heavily favours individualism over consistency. 6

The High Court recently reaffirmed the importance of individualized justice in Elias v The Queen; Issa v The Queen [2013] HCA 31. French CJ, Hayne, Kiefel, Bell and Keane JJ stated at [27]:

As this Court has explained on more than one occasion, the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion (footnotes omitted; emphasis added). 7

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Notes:

  1.  Wong v The Queen [2001] HCA 64, [74] (Gaudron, Gummow and Hayne JJ); Markarian v The Queen [2005] HCA 25, [37]-[39] (Gleeson CJ, Gummow, Hayne and Callinan J); Barbaro v The Queen [2014] HCA 2, [34].
  2.  Barbaro v The Queen [2014] HCA 2, [34] (French CJ, Hayne, Kiefel and Bell JJ); Wong v The Queen [2001] HCA 64,[75]-[76] (Gaudron, Gummow and Hayne JJ), Markarian v The Queen [2005] HCA 25,  [52] (McHugh J).
  3.  Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [5.21]. 
  4.  Keynote Address, The Hon J J Spigelman AC, ‘Consistency and Sentencing’ (Sentencing Conference 2008, Canberra, 8 Feb 2008) 2-3. 
  5.  Sarah Krasnostein and Arie Freiberg, ‘Pursuing consistency in an individualistic sentencing framework: if you know where you’re going, how do you know when you’ve got there?’ (2013)  76(1) Law and Contemporary Problems 265.
  6.  Sarah Krasnostein and Arie Freiberg, ‘Pursuing consistency in an individualistic sentencing framework: if you know where you’re going, how do you know when you’ve got there?’ (2013)  76(1) Law and Contemporary Problems 265.
  7.  See also Bugmy v The Queen [2013] HCA 37, [36], [41] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).