Standard Non-Parole Sentencing and Guideline Judgments: Where to from here?
Mark Marien SC
Director, Criminal Law Review Division
Attorney General’s Department (NSW)
Deputy Senior Crown Prosecutor
This article provides an overview of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (No. 90) which commenced operation on 1 February 2003.
Part 1 - Standard non-parole sentencing
Introduction
Purposes of sentencing
Standard non-parole periods
What does the standard non-parole period represent?
Reasons and requirements
Instances where Division 1A does not apply
New s 21 A
New s 44
Will the new standard non-parole period scheme have any impact upon sentencing in the Local Court?
Instinctive synthesis or multi-stage sentencing?
Standard Non-Parole Sentencing and Guideline Judgements
The NSW Sentencing Council
Savings and transitional provisions
Appellate review
Part 2 - Guideline Judgments: Where to from here?
Endnotes
Part 1 - Standard Non-Parole Sentencing
Introduction
The Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (the Act) makes a number of significant amendments to the Crimes (Sentencing Procedure) Act 1999 (the Act). The Explanatory Note to the Bill states that the principal objects of the Act are to:
(a) establish a scheme of standard minimum sentencing for a number of serious offences; and
(b) constitute a New South Wales Sentencing Council to advise the Attorney General in connection with sentencing matters.
Purposes of sentencing
As well as introducing a new scheme of standard minimum sentencing (or to use the language of the relevant provisions of the Act, “standard non-parole period” sentencing), the Act also inserted a new s 3A into the Act, which sets out for the first time in NSW sentencing legislation the purposes of sentencing. Those purposes are:
(a) to ensure that the offender is adequately punished for the offence;
(b) to prevent crime by deterring the offender and other persons from committing similar offences;
(c) to protect the community from the offender;
(d) to promote the rehabilitation of the offender;
(e) to make the offender accountable for his or her actions;
(f) to denounce the conduct of the offender; and
(g) to recognise the harm done to the victim of the crime and to the community.
The amending Act also repealed and inserted a new ss 21A (aggravating, mitigating and other factors) and 44 (setting a non-parole period) into the Act.
The Attorney General, in his Second Reading speech, discussing the new scheme of sentencing, said:
"At the outset I wish to make it perfectly clear: the scheme of sentencing being introduced by the government today is not mandatory sentencing. The scheme being introduced by the government today provides further guidance and structure to judicial discretion. It does not replace judicial discretion. These reforms are primarily aimed at promoting consistency and transparency in sentencing and also promoting public understanding of the sentencing process.
By preserving judicial discretion we ensure that a just, fair and humane criminal justice system is able to do justice in the individual case. This is the mark of a criminal justice system in a civilised society.
By preserving judicial discretion we ensure that when in an individual case extenuating circumstances call for considerations of mercy, considerations of mercy may be given.
A fair, just and equitable criminal justice system requires that sentences imposed on offenders be appropriate to the offence and the offender, that they protect the community and help rehabilitate offenders …The imposition of a just sentence … requires the exercise of a complex judicial discretion. The sentencing of offenders is an extremely complex and sophisticated judicial exercise." [1]
The Attorney General made these remarks in the context of distinguishing the amending Act’s new scheme of sentencing from mandatory minimum sentencing.
Standard non-parole periods
The amending Act inserts a new Division 1A (ss 54A–54D) into Part 4 of the Act.
The new Division provides for standard non-parole periods for a number of serious indictable offences that are listed in the Table to the Division.
Section 54A(1) provides that “the standard non-parole period for an offence is the non-parole period set out opposite the offence in the Table to this Division.”
The offences specified in the Table include:
murder;
conspiracy to murder;
attempted murder;
wounding etc with intent to do bodily harm or resist arrest;
certain assault offences involving injury to police officers;
certain sexual offences, including sexual intercourse with a child under ten years of age;
certain robbery and break and enter offences;
car-jacking;
certain offences involving commercial quantities of prohibited drugs;
certain offences involving unauthorised possession or use of firearms; and
intentionally causing a bushfire. [2]
The offence of murder has been divided into two categories. The first category, which attracts a standard non-parole period of 25 years imprisonment, comprises murder where the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker or other public official, exercising public or community functions; and the offence arose because of the victim’s occupation. The second category, “murder — in other cases,” attracts a standard non-parole period of 20 years imprisonment.
What does the Standard Non-Parole Period represent?
The answer to this question is pivotal to the operation of the new scheme of standard non-parole sentencing. Section 54A(2) is an important provision. It provides:
“For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the Table to this Division.”
The identification of where an offence lies on the sentencing spectrum, or in the range of objective seriousness, is an exercise that must always be undertaken by the sentencing court. The Attorney General, in his Second Reading speech, said:
"The concept of a sentencing spectrum is well known to sentencing judges and criminal law practitioners. The first important point of reference, which must be considered in the sentencing exercise, is the maximum penalty for an offence. The maximum penalty is said to be reserved for the ‘worst type of case falling within the relevant prohibition’ … At the other end of the sentencing spectrum lie cases which might be described as the least serious or trivial.
The new sentencing scheme … introduces a further important reference point, being a point in the middle of the range of objective seriousness for the particular offence. The identification of a further reference point within the sentencing spectrum will provide further guidance and structure to the exercise of the sentencing discretion. Every sentencing exercise necessarily involves the identification by the court of where the offence lies in the spectrum of objective seriousness." [3]
As the Attorney General stated above, the first important point of reference to be considered in the sentencing exercise is the maximum penalty set by the legislature which is reserved for the “worst case.” (see: Ibbs v The Queen[4] ). It is through the introduction of a further reference point in the sentencing process (namely, a standard non-parole period for an offence in the middle of the range of objective seriousness for that offence) that “further guidance and structure” is provided to the exercise of sentencing discretion.
The concept of an offence displaying criminality in the middle of the range of objective seriousness for a particular type of offence is not unknown to sentencing judges. In R v Perese [5], McClellan J noted, without criticism, that the sentencing judge described the offences as displaying “criminality in the mid range of seriousness for these types of offences.” [6]
Reasons and requirements
Section 54B(2) provides that a court, when determining the sentence for an offence set out in the Table to Division 1A:
“is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.”
The requirement imposed on a court by s 54B(2) when sentencing for an offence in the Table to Division 1A, to set the standard non-parole period as the non-parole period for the offence, only arises “when a court imposes a sentence of imprisonment” for the offence (s 54B(1)). Accordingly, if a judge upon assessing the objective seriousness of an offence in the Table and, after taking into account the relevant aggravating and mitigating factors, comes to the view that a sentence other than imprisonment is called for then the judge is not required to comply with s 54B.
Under s 54B(3), the reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are “only those referred to in s 21A.”
The court must make a record of its reasons for increasing or reducing the standard non-parole period and must identify in the record of its reasons each factor that it took into account (s 54B (4)).
Section 54B(5) provides that the failure of a court to comply with s 54B does not invalidate the sentence. Similar provisions are also to be found in the new ss 44(3) and 54C(2). The purpose of these provisions is to protect the validity of a sentence in circumstances where the sentencing court has not complied with the provisions of Division 1A. These sections are to be read with the new s 101A, which provides that a failure to comply with a provision of the Act may be considered by an appeal court in any appeal against sentence, even if the Act declares that the failure to comply does not invalidate the sentence.
Section 54C requires a court that imposes a non-custodial sentence for an offence set out in the Table to Division 1A to make a record of its reasons for doing so. The court must identify in the record of its reasons each mitigating factor that it took into account.
Instances where Division 1A does not apply
Section 54D(1) provides that Division 1A does not apply to the sentencing of an offender to imprisonment for life or for any other indeterminate period, or to detention under the Mental Health (Criminal Procedure) Act 1990.
Section 54D(2) provides that Division 1A does not apply if the offence for which the offender is sentenced is dealt with summarily.
New s 21A
The former s 21A of the Principal Act set out general sentencing principles. Section 21A(2) provided that, in determining the sentence to be imposed on an offender, the court must take into account particular matters that are “relevant and known to the court.”
The new s 21A contains expanded and comprehensive lists of clearly identified “aggravating factors” (s 21A(2)) and “mitigating factors” (s 21A(3)).
The meaning of the phrase "relevant and known to the court" was recently considered by the High Court in Weininger v the Queen [2003] HCA 14 where the court, after referring to its earlier decision in Olbrich (1999) 199 CLR 270, held that the phrase "known to the court" should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted. [7]
The use of a statutory list of aggravating and mitigating factors is consistent with sentencing provisions in certain interstate and overseas jurisdictions. [8] The new s 21A applies to sentencing for all offences, whether they are dealt with on indictment or in the summary jurisdiction of the Local Court or Children’s Court, and whether or not the offence is contained in the Table to the new Division 1A.
With respect to the scheme of standard non-parole period sentencing under the new Division 1A, s 21A plays a further important role. When imposing a sentence of imprisonment for an offence in the Table to Division 1A, the only reasons for which a court may set a non-parole period that is longer or shorter than the standard non-parole period are those referred to in s 21A (s 54B(3)).
It is useful to set out the Attorney General’s remarks in his Second Reading speech as to the effect and operation of the new s 21A:
"The identification of aggravating and mitigating factors in proposed sub-sections 21A(2) and (3) re-state the application of such factors to the sentencing exercise as they presently apply at common law. This is made clear by proposed sub-section 21A(1) which provides that the court is to take into account the aggravating and mitigating factors referred to in sub-sections 21A(2) and (3) ‘which are relevant and known to the court.
For example, the aggravating factor under proposed … s 21A(2)(d), that ‘the offender has a record of previous convictions,’ is to be taken into account if that factor is relevant to the sentencing exercise. In Veen (No 2) [(1988) 164 CLR 465], in the High Court, the majority stated how the antecedent criminal history of an offender can be relevant to sentencing. The majority stated (at 477–478) that such a history can be relevant when it illuminates the moral culpability of the offender in the instant case, or shows dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing similar offences.
Proposed s 21A(4) provides that a sentencing court is not to have regard to any aggravating or mitigating factor specified in the section if it would be contrary to any Act or rule of law to do so. This provision makes it clear, for example, that a rule of law such as that expressed in The Queen v De Simoni (1981) 147 CLR 383 is not affected …
Proposed s 21A(5) makes it clear that the fact that a specified aggravating or mitigating factor is relevant and known to the court does not require the court to automatically increase or reduce the sentence.
Not all subjective factors present in a particular case will automatically result in reduction or increase of a sentence. For example, the courts have consistently held that issues of youth, mental disability or cultural background will not in every case lead to a reduction of a sentence by way of mitigation … As the High Court stated in Veen (No 2) the various purposes of punishment are guideposts to the appropriate sentence. These guideposts sometimes point in different directions."[9]
The lists of aggravating and mitigating factors in the new s 21A are not an exclusive statement of such factors that may be taken into account by the court. In determining the appropriate sentence for an offence, not only must the court take into account the aggravating and mitigating factors in ss 21A(2) and 21A(3) “that are relevant and known to the court,” but also “any other objective or subjective factor that affects the relative seriousness of the offence” (s 21A(1)(c)).
Further, the concluding words of s 21A(1) are:
“The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.”
Section 21A(1)(c) and the concluding words to s. 21A(1) are “catch-all” provisions which pick up any other aggravating or mitigating factors at common law not specifically referred to in s. 21A as well as relevant guideline judgments and any statutory provision or other common law principle not specifically referred to in s 21A which is relevant to determining the appropriate sentence.
Where an aggravating factor referred to in s 21A(2) is an element of the offence, that factor is not to be taken into account as an additional aggravating factor. [10]
New s 44
Former s 44(1) of the Principal Act provided that, when sentencing an offender to imprisonment for an offence, the court was first required to set the term of the sentence and, second, to set a non-parole period for the sentence. Former s 44(2) provided that the non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides that there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision.
New s 44(1) requires the sentencing court to first set a non-parole period for the sentence. New s 44(2) provides that the balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more. The effect of the new s 44 is to maintain (by a different method of calculation) the existing presumptive ratio between the non-parole period of a sentence and the period during which the offender may be released on parole.
The requirement under the new s 44 to first impose the non-parole period for a sentence is a return to the requirement which applied under s 5 of the repealed Sentencing Act 1989. The introduction, under the new Act, of a scheme of standard non-parole period sentencing, with the necessary focus by the sentencing court upon a standard non-parole period, made this change necessary.
New s 44 applies to all sentencing exercises where a sentence of imprisonment is imposed, whether or not the offence comes within the standard non-parole sentencing scheme of the new Division 1A.
The question arises as to whether s 44(2) allows the effective reduction of a non-parole period for a standard non-parole period sentence where “special circumstances” are found. In a recent paper delivered to the 2003 Local Courts Annual Conference, Peter Johnson SC stated that it is reasonable to conclude that a finding of “special circumstances” may see such a reduction. He refers to s 21A(1)(c) which enables matters to be taken into account under any Act or rule of law. Section 44(2) allows a court to take into account the existence of “special circumstances” to vary the statutory relationship between the non-parole period and the balance of the term. This view was also expressed by Chrissa Loukas in an article in the Bar News earlier this year. [11]
I agree with this view. In addition, it is noted that there is nothing in s 44(2) to suggest that the provision does not apply to sentencing an offender to a term of imprisonment with respect to a standard non-parole period offence.
Will the new standard non-parole period scheme have any impact upon sentencing in the Local Court?
As stated earlier the standard non-parole period sentencing scheme does not apply to sentencing in the Local Court: see s 54D(2). However, there are some offences in the Table of standard non-parole offences which may be dealt with summarily under Tables 1 and 2 of the Criminal Procedure Act 1986: viz, s. 60(2), s 61M, s 154C and s 203E of the Crimes Act 1900 and s 7 of the Firearms Act 1996.
The DPP has foreshadowed that ODPP guidelines will be developed to assist in assessing where in the range of objective seriousness an offence lies. [12] In deciding whether to elect to deal with a Table 1 or 2 offence on indictment it will be necessary for the DPP to make this assessment.
It is understood that NSW police have been advised to refer such cases to the DPP to consider the question of election.
In his paper Peter Johnson SC states that in sentencing in the Local Court for such offences it will be necessary for the court to have regard to the standard non-parole period for the offence in the same way as the court must have regard to the maximum penalty. He further argues that where there is a hierarchy of offences some of which are within the standard non-parole period scheme and some are not, it is possible that a new pattern of sentencing may influence offences not caught by the scheme. An example of such an offence is assault police under s 60(1) of the Crimes Act. That offence is not within the standard non-parole period scheme but the aggravated offences under ss 60(2) and 60(3) are within the scheme. Support for these arguments is to be found in the following statement by Spigelman CJ in Attorney-General’s Application No. 2 of 2002 [2002] NSWCCA 515 at [62]:
“A new sentencing pattern may well emerge for s 60(2) because of the introduction of standard minimum non-parole periods. This new pattern could have an influence on future sentencing patterns for s 60(1).”
Instinctive synthesis or multi-stage sentencing?
In determining the appropriate sentence for an offence in the Table to Division 1A, a sentencing judge may still employ the “instinctive synthesis” approach favoured by the joint judgment in Wong v The Queen. [13] Indeed, in New South Wales, the instinctive synthesis approach is the correct general approach to sentencing [14].
A sentencing judge imposing a sentence under the new Division 1A will be required, in the course of determining the appropriate sentence, to make an assessment of the objective seriousness of the offence without reference to the subjective case. However, as the Chief Justice explained in R v Thomson and Houlton[15], such separate treatment “will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.”
Later in Whyte [2002] NSWCCA 343 at [160] Spigelman CJ observed:
“There is much to be said for the proposition that the sequence in which the objective circumstances and subjective considerations are taken into account should not matter, as long as all relevant considerations are taken into account. (See, eg Punch v The Queen (1993) 9 WAR 486; R v Mulholland (1991) 1 NTLR 1 at 14-15 per Angel J).
As Angel J put it in Mulholland (at 15), a two stage approach only involves ‘a pause along the way’ and is likely to lead to the same or similar result. The difference may be, as Kirby J has said, one of semantics rather than substance’ (Cameron v The Queen (2002) 76 ALJR 382 at 395 [71])”.
The Attorney General, in his Second Reading speech, said:
"Under the Bill, the sentencing process remains one of synthesis of all the relevant factors in the circumstances of the case. The requirement for a court to identify each factor that it takes into account does not require the court to assign a numerical value to such a factor. That is, proposed s 54B does not require a court to adopt a mathematical or multi-stage approach to sentencing." [16]
Nevertheless, the new scheme of standard non-parole sentencing requiring as it does an assessment of the objective seriousness of the offence and an initial setting of a non-parole period (being in effect a starting point) will clearly not be amenable to a purely instinctive synthesis, single tiered approach to sentencing.
Standard Non-Parole Sentencing and Guideline judgments
Offences for which guideline judgments have already been promulgated by the Court of Criminal Appeal [17] are not included in the Table to the new Division 1A. The guideline judgments promulgated by the court will continue to apply to sentencing for those offences.
In the course of his Second Reading speech, the Attorney General stated that guideline judgments will continue to play an important role with respect to offences that are not part of the standard non-parole period sentencing scheme. Further, it would be open to the Attorney General to make an application for a guideline judgment with respect to an offence that falls within the scheme.
The NSW Sentencing Council
The Act, by inserting a new Part 8B (ss 100I–100L) into the Principal Act, constituted a New South Wales Sentencing Council.
The Sentencing Council has the following functions under sub-section 100J(1):
(a) advising and consulting with the Attorney General in relation to offences suitable for standard non-parole periods, and their proposed length;
(b) advising and consulting with the Attorney General in relation to offences suitable for guideline judgments, and the submissions to be made by the Attorney General on an application for a guideline judgment;
(c) monitoring, and reporting annually to the Attorney General on, sentencing trends and practices, including the operation of standard non-parole periods and guideline judgments; and
(d) at the request of the Attorney General, preparing research papers or reports on particular subjects in connection with sentencing.
The Sentencing Council consists of ten members appointed by the Attorney General, of whom:
(a) one is to be a retired judicial officer;
(b) one is to have expertise or experience in law enforcement;
(c) three are to have expertise or experience in criminal law or sentencing (including one person who has expertise or experience in the area of prosecution and one person who has expertise or experience in the area of defence);
(d) one is to be a person who has expertise or experience in Aboriginal justice matters; and
(e) four are to be persons representing the general community, of whom two are to have expertise or experience in matters associated with victims of crime.
The Act also inserts a new Schedule 1A into the Principal Act, which contains provisions relating to the membership and procedure of the Sentencing Council. The current Chairman of the Council is The Hon A.R. Abadee RFD QC a retired judge of the Supreme Court of NSW.
Since the Sentencing Council was constituted in early 2003 the Attorney General has requested the Council to provide reports under s 100J(1)(d) on the following issues:
o How best to promote consistency in sentencing in the Local Court;
o The abolition of sentences of 6 months or less; and
o Whether attempt and accessorial offences should be included in the standard non-parole sentencing scheme.
The Sentencing Council is presently preparing reports on the above issues.
Savings and transitional provisions
Schedule 3.2 [9] to the Act inserts a new Part 7 into Schedule 2 of the Principal Act, which contains savings and transitional provisions.
The effect of these provisions is that the standard non-parole period sentencing scheme under new Division 1A of the Principal Act and the new s 44 of the Principal Act apply only to sentencing for offences committed after the commencement of the Act. However, ss 3A (purposes of sentencing) and 21A (aggravating, mitigating and other factors in sentencing) apply to sentencing for an offence whenever committed, except where the sentencing proceedings relate to a conviction or a plea of guilty that was entered and not withdrawn before the Act commenced. Existing s 21A will, therefore, continue to apply to sentencing proceedings that are on foot when the Act commences.
Similar savings and transitional provisions also apply to proceedings under the Children (Criminal Proceedings) Act 1987 [18].
Appellate review
As the new scheme of standard non-parole sentencing applies only to offences in the Table to Division 1A which were committed after 1 February 2003, at the date of writing this paper (November 2003) only a small number of sentences have been imposed for such cases. Initial indications show an increase in median terms of imprisonment over median terms recorded in the Judicial Commission statistics (JIRS). No doubt the Court of Criminal Appeal will come to review some of these sentences and will in the process provide valuable guidance to sentencing judges for the future.
Part II - Guideline Judgments: Where to from here?
As stated earlier in this paper it is expected that guideline judgments will continue to play an important role with respect to the new scheme of standard non-parole sentencing. In particular, the promulgation of guideline judgments by the Court of Criminal Appeal with respect to factors relevant to the identification of offences in the Table, which fall in the middle of the range of objective seriousness may greatly assist sentencing judges.
But what further role or roles will guideline judgments continue to play in other areas of sentencing?
It is clear that guideline judgments in New South Wales have had a significant impact upon sentencing trends. The most dramatic impact followed the promulgation of the guideline judgment on dangerous driving causing death/grievous bodily harm: Jurisic [19]. Following the guideline there was a 25% increase in prison sentences for the offence of dangerous driving occasioning grievous bodily harm (drive under the influence) (s 52A(3)(a) of the Crimes Act 1900) and a 25% increase in prison sentences for dangerous driving occasioning death (drive manner dangerous) (s 52A(1)(c)). The guideline has also had a significant impact upon the median length of prison sentences. Prior to Jurisic the median full term for the offence of dangerous driving occasioning death (drive under the influence) (s 52A(1)(a)) was 4 years imprisonment. After Jurisic the median full term has increased to 5 years imprisonment.
An impact upon sentencing trends has also clearly resulted form the guideline judgment promulgated with respect to armed robbery: Henry [20]. Across every type of offence involving robbery under s 97 of the Crimes Act 1900 the percentage of offenders being sent to prison has increased markedly since the guideline was promulgated. Following the guideline there has been an 11% increase in imprisonment rates for the offence of accessory after the fact to robbery (armed or in company) and a rise of 13% for the offence of assault with intent to rob (armed or in company).
Similar to the effects in Jurisic not only are more offenders being sent to prison but they are also going to prison for longer periods. Since Henry the median prison terms for both assault with intent to rob (being armed or in company) and attempt robbery (being armed or in company) have risen by 33% or 12 months.The dramatic impact of the guidelines in Jurisic and Henry has undoubtedly resulted from the fact that in both cases the Court of Criminal Appeal promulgated quantitative or numerical guidelines. However, the future of quantitative guidelines in NSW is presently somewhat uncertain.
The Court also issued a quantitative guideline with respect to the Commonwealth offence of importing drugs: Wong [21]. The guideline related to five levels of quantity of drugs and for each level a range of penalties was proposed. This guideline was subsequently overturned by the High Court: Wong v The Queen [22]. Whilst it is clear from the decision that highly specific and quantitative guidelines with respect to federal offences are invalid the position with respect to guideline judgments promulgated with respect to State offences in not so clear.
The High Court found by majority that the guideline in Wong by identifying weight of the drug as the chief factor to be taken into account on sentence was incompatible with s 16A of the Crimes Act 1914 (Cth). That aspect of the reasoning of the High Court decision does not impact upon guidelines promulgated in NSW for State offences.
However, in a joint judgment Gaudron, Gummow and Hayne JJ were highly critical of numerical guideline judgments. They found that the quantitative guideline in Wong was unconstitutional and contrary to common law principles. The views expressed by the majority in this regard were not shared by the other three judges sitting on the Court: Gleeson CJ; Kirby and Callinan JJ.
Following Wong in the High Court the NSW Court of Criminal Appeal upheld the NSW practice of promulgating numerical guidelines for State offences: Whyte [23]. Spigelman CJ held that the majority decision in Wong (dealing as it does only with incompatibility with Federal legislation) does not require the court to overrule the guidelines promulgated in Jurisic and Henry.
In Whyte Spigelman CJ rejected an argument relying upon Kable v DPP [24] that the guidelines in Jurisic and Henry were unconstitutional because they were incompatible with the Court’s role as a repository of Commonwealth judicial power. The Chief Justice distinguished Kable and held that the Court’s exercise of the power to issue guideline judgments (be that a “legislative” or “quasi-legislative” power) does not detract in any way from the reputation of the Court or from the actual or perceived independence and impartiality of the Court. In other words, numerical guidelines are not incompatible with judicial functions.
What then is the future of guideline judgments in NSW in the light of Wong? Much depends on the view the High Court takes of a NSW numerical guideline should one come before the court. Certainly, the judgments in Wong do not appear to adversely impact upon qualitative guidelines of the kind issued in Ponfield [25] (dealing with the offence of break, enter and steal). It may be that until the validity of numerical guidelines for State offences is finally settled by the High Court we will see more applications for qualitative guidelines in NSW rather than applications for numerical guidelines.
ENDNOTES
[1] The Honourable Bob Debus, Hansard, Legislative Assembly, 23 October 2002, pp 5,813 and 5,815.
[2] Section 203E Crimes Act 1900.
[3] The Honourable Bob Debus, Hansard, Legislative Assembly, 23 October 2002, pp 5,816–5,817. See: Ibbs v The Queen (1987) 163 CLR 447 at 451–452, where the High Court referred to the need for a sentencing judge to identify where in the spectrum of objective seriousness an offence lies. This principle was restated by Chief Justice Spigelman in Thorneloe v Filipowski (2001) 52 NSWLR 60 at 69, and by Justice Howie in R v Moon [2000] NSWCCA 534 at [67]–[68].
[4] (1987) 163 CLR 447 at 451-452
[5] [2001] NSWCCA 478.
[6] [2001] NSWCCA 478 at [68].
[7] See the joint judgment at paragraph [21].
[8] See ss 7 and 8 of the Sentencing Act 1995 (WA), s 718.2(a) of the Criminal Code (Canada) and s 9 of the Sentencing Act 2002 (NZ).
[9] The Honourable Bob Debus, Hansard, Legislative Assembly, 23 October 2002, pp 5,815–5,816.
[10] Section 21A(2): “The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.”
[11] “Crimes (Sentencing Procedure Amendment) Standard Minimum Sentencing Bill 2002”, Summer 2002/2003 at p. 52.
[12] Nick Cowdery QC, “Minimum Sense: Sentencing Reform and the NSW Election”, NSW Young Lawyers Forum, 4 March 2003, p. 5.
[13] (2001) 207 CLR 584
[14] See R v Thomson and Houlton (2000) 49 NSWLR 383 at [57], per Spigelman CJ.
[15] (2000) 49 NSWLR 383 at [57].
[16] The Honourable Bob Debus, Hansard, Legislative Assembly, 23 October 2002, p 5,817.
[17] Armed robbery — R v Henry (1999) 46 NSWLR 346; dangerous driving causing death/grievous bodily harm — R v Jurisic (1998) 45 NSWLR 209 and R v Whyte [2002] NSWCCA 343; and break enter and steal under s 112 (1) of the Crimes Act 1900 — AG’s Application No 1; R v Ponfield (1999) 48 NSWLR 327.
[18] See Schedule 3.1[3] to the Act.
[19] (1998) 45 NSWLR 209.
[20] (1999) 46 NSWLR 346.
[21] (1999) 48 NSWLR 340.
[22] (2001) 207 CLR 584.
[23] [2002] NSWCCA 343.
[24] (1996) 189 CLR 51.
[25] (1999) 48 NSWLR 327.
[November 2003]
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