A Guide to Sentencing
A GUIDE TO SENTENCING: LAUNCH OF PUBLICATION
OF THE JUDICIAL CONFERENCE OF AUSTRALIA
BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
SYDNEY, 5 OCTOBER 2007
Sentencing of convicted criminals engages the interest, and sometimes the passion, of the public at large more than anything else judges do. The public attitude to the way judges impose sentences determines, to a substantial extent, the state of public confidence in the administration of justice.
Over the years I have expressed concern that public confidence in, and public respect for, the judiciary are diminished by reason of ignorance about what judges actually do in terms of the sentences that are imposed. I accept, of course, that there are occasions when a particular sentence attracts criticism and that criticism is reasonably based. I have, however, been concerned that such cases appear to be widely regarded as typical, when they are not.
There appears to be a widespread belief that judges generally sentence more leniently than they actually do. There is a considerable body of research which indicates that, with respect to crime, and particularly with respect to sentencing, there is a significant disparity between what actually happens and what a majority of the public believes happens.
This disparity can have significant effects. One of the important purposes of sentencing for crime is deterrence. The belief that judges sentence more leniently than they actually do, means that the deterrent effect of the sentencing process is lessened. It is, accordingly, of general significance that the public is properly informed both about the actual level of sentences imposed and the principles upon which the sentences are imposed.
The general media are an important source of information for the public but, space limitations and an understandable focus on high profile cases and controversy, necessarily means that the public cannot be informed by the media about what judges actually do in the normal line of case and why. Judges in Australia hand down something of the order of three-quarters of a million sentences a year. Probably only about 0.1 percent of them receive any kind of media attention.
The Judicial Conference of Australia has performed a significant public service by compiling the publication being launched today: Judge for Yourself: A Guide to Sentencing in Australia. This publication is available both in booklet form and, in a more detailed version, on the JCA website which is accessible to any member of the public – http://www.jca.asn.au.
This Guide outlines in a logical and comprehensive manner the context and the practice and procedure of sentences as well as an overview of the principles and legal requirements of the sentencing exercise. The project was an initiative of Justice Ronald Sackville when he was President of the JCA. He chaired the Committee. I congratulate the JCA on this excellent initiative and thank Justice Sackville and members of the Committee for devoting their time and applying their experience and learning to the preparation of the Guide. It represents a significant contribution to public confidence in the administration of justice and public respect for the judiciary.
In all of recorded history there has never been a time when crime and punishment has not been the subject of debate and difference of opinion. This is not likely to change in the future. The problem seems to have started in the Garden of Eden itself, when God called Adam to account for his transgression. He, of course, blamed his wife. She, more imaginatively, blamed the snake. All three were the subject of retributive punishment, as were their descendants. However, the descendants of Adam and Eve were given some prospects of rehabilitation. Animal rights activists will, no doubt, be concerned about discrimination against the snake.
The reason why debate about sentencing will know no rest is because the sentencing task has always been, and will continue to be, a process of balancing overlapping, contradictory and incommensurable objectives. The requirements of deterrence, rehabilitation, denunciation, punishment and restorative justice – all of which are identified as purposes of sentencing in the Guide – do not point in the same direction. Specifically, the requirements of justice, in the sense of just deserts and of mercy, often conflict. Yet we live in a society which values both justice and mercy.
There is a wide spectrum of legitimate opinion about appropriate levels of punishment for criminal offences. The judiciary cannot satisfy all these points of view. It is important to recognise that the permissible range for the sentencing discretion by the judiciary is narrower than the breadth of the range of opinion held within the community. That means that someone will always be disappointed.
Inevitably, individual judges will have different philosophical approaches to the task of sentencing. The purpose of sentencing principles or guidelines and of the appellate process is to ensure that these individual differences are kept within proper bounds. It would undermine public confidence in the administration of criminal justice if it became widely believed that the result was a lottery based on who the judge was. It is essential that the outcomes of similar cases are, within reasonable bounds, the same so that offenders do not have a sense of grievance that they have drawn a particularly harsh judge and victims do not have a sense of grievance that the offender has drawn a lenient judge.
The need for consistency is only one of numerous constraints on the sentencing task. One of the key features of the Guide is that it identifies those constraints in a manner that is clearly explained.
It is understandable that the media and members of the public concentrate on only one aspect of the sentencing process, i.e. the actual penalty compared with the most prominent aspect of the particular crime. Judges are not permitted by law to adopt such a narrow focus. Judges are required by statute and by common law principles to take into account a wide range of relevant considerations, being all of the circumstances of the offence and also the circumstances of the particular offender. This Guide outlines in an intelligible manner the full range of considerations which a judge is required to take into account.
These legal requirements mean that a judge cannot focus only on the requirements of punishment and deterrence and denunciation. S/he also has to have regard to the prospects of rehabilitation and the wide range of matters that impinge upon the moral culpability of the particular offender. This extends beyond details of the act and its immediate consequences upon the victim. Judges are required by law to take into account a range of matters – some mitigating moral culpability, such as youth and remorse, and others aggravating moral culpability, such as repeat offending and cruelty.
Perhaps the most significant development over recent decades has been the introduction of a greater emphasis in the sentencing process upon the effect of crime on victims and, particularly crime resulting in death, upon the family of the deceased.
The urge of victims to seek revenge for criminal conduct, particularly violent criminal conduct, may not be the most noble of human motivation. Nevertheless, it must be accepted that the demand for retribution and denunciation is a basic human response to loss and grief. Assuaging the need for retribution cannot be ignored, even by those who regard it as an ignoble human characteristic.
One of the most important functions of the criminal justice system is to ensure that people do not pursue revenge privately or, as it is sometimes put do not “take the law into their own hands”. There are too many examples in human history of such conduct for us not to ensure that sentencing takes into account the possible outrage by victims about inadequate punishment.
Furthermore, the community as a whole has the same basic instinct to denounce criminal conduct, as those directly affected. Everyone is outraged by criminal conduct and expects punishment. It is not only victims who believe that the gravity of the offence is determined by the extent to which the offence has made other persons suffer. Such denunciation affirms community standards of morality and operates to enhance social cohesion.
Changes in public opinion about the weight to be accorded to the various considerations to which regard must be had in the exercise of the sentencing discretion are changes which judges have to take into account. The increased prominence given to the effect on victims, such as provision for victim impact statements, reflects such a change.
It does appear that the central significance given to the objectives of rehabilitation, even a decade or two ago, has been displaced. This reflects a more widespread change in social philosophy which focuses upon the importance of persons taking responsibility for their own conduct. When such a broad shift in social philosophy occurs one should not expect that the criminal justice system can be insulated from it. Nor has it been.
Nevertheless, as this publication so effectively attests, the multiplicity of considerations involved in the sentencing exercise remains the basic characteristic of the task. There may be changes in the weight to be given to particular considerations over time. The fact that there are multiple considerations will not change.
Despite the widespread belief that judges are excessively lenient, I do not believe that the public as a whole is generally more punitive than judges. Numerous studies have confirmed that where the public is provided with the detailed information that a judge receives about the offence and the offender, they are not more punitive. About the same proportion believe the judge was too severe as believe the judge was too lenient. This research confirms there is no single correct answer. It also confirms that judges are not systematically lenient.
Centuries of practical experience establishes that the sentencing task is best conducted by the exercise of the broad discretion. That experience also establishes that the difficult process of weighing and balancing all of the relevant considerations is best done by an independent, impartial, experienced, professional judge.
One hears much less today of proposals that were common even a few years ago for significant restrictions upon the sentencing discretion by means of a sentencing matrix or minimum mandatory terms. This booklet explains why such legislative restrictions would impede the ability to achieve justice in an individual case. We have long had experience of this character. The Criminal Law Amendment Act of New South Wales 1883 created a strict sentencing structure involving five distinct steps with maximum and minimum sentences. The scheme led to such palpable injustices that the Sydney Morning Herald editorialised on 27 September 1883:
“We have the fact before us that in a case where a light penalty would have satisfied the claims of justice, the judge was prevented from doing what he believed to be right, and was compelled to pass a sentence which he believed to be excessive, and therefore unjust, because of the rigidity of the law left him no discretion.”
The scheme was abandoned by statute a year after its introduction.
Rigid restrictions of this character will inevitably be counter-productive. What is required is a an informed public debate, by which the judiciary ensures that it stays in touch with changes in community’s expectations and standards of what is fair and just.
This continuing dialogue is enhanced if the public has a high level of understanding of what judges do in the sentencing task and why. To this important task the Judicial Conference of Australia has made a singular contribution.
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