LLB180 Lecture 12: Week 12 – Sentencing II
Week 12 – Sentencing II
Tension Between Judiciary and Legislature
Appellate Review
• Oversight role mainly left to state (territory) courts e.g. NSWCCA
• Special leave required to get to HCA
• Very few sentencing appeals heard in HCA
• Role of the CCA to enunciate sentencing policy through case law: Way (2004) per
Spigelman CJ (CB 1266)
• Offender and DPP can both appeal against sentence
• Remember also – most criminal matters sentenced in Local Court – so the District
Court plays an important appellate review function
Truth in “entening
• The political concept of 'truth in sentencing' involved the movement to the current
sentencing system where the judge sets the head sentence (the absolute maximum
period of penal intervention), and the non-parole period (the portion of that penal
intervention that must be spent in custody) is legislatively at least three quarters of
that head sentence (s 44, Crimes (Sentencing Procedure) Act 1999 (NSW))
• Sentencing Act 1989 → calculation of terms of imprisonment and parole
• 1989 legislation:
- There are no longer remissions (reduction in non-parole period) for good
behaviour
- Set fixed terms of imprisonment with no additional term for all sentences of 6
months or less
- Set formula of ¾ custodial to ¼ parole (s 44)
- Abolished presumption in favour of parole
• Before 1989, judges would set a head sentence, then freely choose a non-parole
period, and remissions were available for good behaviour → led to a significant
increase in prison terms and the prison population
• Whilst it is recognised that there may have been a reduction in the crime rate as a
result, it is difficult to justify this policy choice given the high cost of the new prison
infrastructure that was required
• Parole is now only a small proportion of the full sentence, and impedes the
reintegration into the community that was previously possible
• Both ajo paties hae apaiged o oe polie/ieased pealties/victims
ights i the lead up to the eletio, ith poises of thee stikes ad oue out
life penalty for serious crime, grid sentencing, and so on
• Effect of Sentencing Act
- Contrary to what Michael Yabsley said in his second reading speech, the NSW
prison population increased by 30% → 1989-1990
- Increase in police numbers
- Heavier policing of summary offences
- Increases in maximum penalties
- Average 19% increase on sentences
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find more resources at oneclass.com
• In response to the bidding war in NSW Parliament, and the potential and widely
feared move towards grid sentencing (where judges have to use a strict 'chart' to
determine sentences), the Supreme Court introduced guideline judgments
Guideline Judgments
• Guideline judgments are judgments which are meant to provide rough guidelines for
future judges as to how to impose sentences for certain offences
• Guideline judgments establish a starting point in terms of a general range of
sentence, and recognise that additional aggravating/mitigating factors would
determine the actual sentence
• Originally a judicial innovation (CB 1254)
• The concept of guideline judgments was invented in Jurisic, where the first guideline
judgment was handed down:
- Inconsistency is a form of injustice. Guideline judgments (which will not be
overlooked by virtue of that formal title) will ensure consistency
- Such guidelines are to be indicative only; not binding precedents
- They will structure discretion, and they are more flexible than statutory
guidelines
• Guideline judgements were considered appropriate to reinforce public confidence in
the administration of justice and the process of sentencing
• Judicial guidelines were seen as far more suitable than statutory guidelines (such as
grid sentencing), given the greater flexibility for the judge to respond to all relevant
circumstances
• Division 4 of the Crimes (Sentencing Procedure) Act 1999 (introduced after Jurisic)
deals with guideline judgments
• Guideline judgments may be made by the Court of Criminal Appeal
• They can also be made on application by the Attorney-General independently of any
case
• The Senior Public Defender, DPP and Attorney General may intervene
• Legislation does not limit the discretion of the court
• Then given a statutory footing:
- s 21A(1) "The matters referred to in this subsection are in addition to any other
matters that are ...permitted to be taken into account by the court under any Act
or rule of law." (reinforced by s 42A)
- Pt 3, Div 4, "Sentencing Guidelines", ss 36-42A
• GJ given on the application of AG (s 37) or o Couts o otio s 3A
• Right of appearance by Senior Public Defender, DPP and AG (ss 38, 39 and 39A)
• Formulates general sentencing principles e.g. classes of offences or offenders and/or
may indicate appropriate sentencing range
- Qualitative;
- Quantitative
Indicative only "to ensure consistency of sentencing with respect to particular kinds of
offences." (Jurisic p 1254)
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find more resources at oneclass.com
Jurisic (1998) 45 NSWLR 209
Facts
1. 3 counts of dangerous driving causing GBH under s 52A Crimes Act after crossing a
median strip and hitting a car coming the other way, causing severe injuries to the
other people
2. travelling at excessive speed and under the influence of cocaine
3. had prior convictions for serious driving offences
4. Coited ad seteed to oths hoe detetio
5. NSWCCA upheld the crown appeal and imposed a 2-year imprisonment sentence
with a minimum term of 1 year
Judgment
▪ Suggested Courts should follow 2 Guidelines in regards to s 52A offences
▪ There is tension between maintaining flexibility in the exercise of
discretion, and ensuring consistency in sentencing
▪ The English courts have a habit of handing down 'guideline judgments', in
which the Court formulates general principles regarding sentencing to be
followed (sometimes including appropriate ranges) for cases of similar
fact scenarios or the same 'class' of cases. This ensures consistency
▪ Guidelines have always been a part of the law, but giving them a formal
title of 'Guideline Judgments' ensure they will not be overlooked
▪ Such guidelines are to be indicative only; not binding precedents
▪ The critical difference between statutory and judicial guidelines is the
flexibility of the latter
▪ This is important, because inconsistency is a form of injustice
▪ Guideline judgments are a method for structuring discretion, rather than
restricting discretion
▪ In this case, after examining the statistics, the sentence initially handed
down was woefully lenient. The Court of Appeal's harsher sentence is
upheld
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Spigelman cj (cb 1266: offender and dpp can both appeal against sentence, remember also most criminal matters sentenced in local court so the district. There are no longer remissions (reduction in non-parole period) for good behaviour. Set fixed terms of imprisonment with no additional term for all sentences of 6 months or less. Set formula of custodial to parole (s 44) Contrary to what michael yabsley said in his second reading speech, the nsw prison population increased by 30% 1989-1990. In response to the bidding war in nsw parliament, and the potential and widely feared move towards grid sentencing (where judges have to use a strict "chart" to determine sentences), the supreme court introduced guideline judgments. Guideline judgments (which will not be overlooked by virtue of that formal title) will ensure consistency. Such guidelines are to be indicative only; not binding precedents.
