Introduction
The Judges of the Court
The Masters
The Registrars
The Common Law Division
The Equity Division
The Court of Appeal
The Court of Criminal Appeal

Introduction

The sentencing of convicted criminals is one of the most important tasks performed by the judiciary. Sentencing 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.

I am concerned that public confidence in the administration of justice 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. There are occasions when a particular sentence attracts criticism and that criticism is reasonably based. What concerns me is that such cases appear to be widely regarded as typical, when they are not.

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. Many believe that Judges generally sentence much more lightly than they actually do.

There is an important task of educating the public about the actual level of sentences imposed. The media, with its understandable focus on high-profile cases and controversy, fail to inform the public about what Judges are actually doing in the normal line of case. There are not adequate alternative means of public information. What is required is a widespread recognition, on the part of the public, that it is getting only part of the story.
There is a wide spectrum of legitimate opinion about appropriate levels of punishment for criminal offences. It is, of course, impossible for courts to satisfy all sections of the community with respect to a matter like sentencing because there are such significant divisions of opinion within the community. The judiciary cannot satisfy all points of view. The permissible range for the exercise of the sentencing discretion by the judiciary is necessarily narrower than the broad range of opinion held within the community. This is because the core value of fairness in the administration of criminal justice requires the range to be narrow, so that criminal justice is seen to operate reasonably equally.

Inevitably Judges will have different philosophical approaches to the task of sentencing. Nevertheless, it would fundamentally undermine public confidence in the administration of criminal justice if it became widely believed that the result was a complete lottery based on who the Judge was. It is essential for the maintenance of public confidence in the administration of justice that the outcomes of similar cases are, within reasonable bounds, the same. Consistency in sentencing must be more than empty rhetoric and is a primary task of the Court of Criminal Appeal.

Because the range of permissible judicial discretion is much narrower than the range of public opinion, the outcome of the judicial sentencing task will not be acceptable to some segment of public opinion. It is, of course, permissible for that segment to seek statutory change for its opinion to prevail. However, it is important that any disaffected segment of the public appreciates that Judges operate within constraints that do not permit decisions at either extremity of public opinion.

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. Requirements of deterrence, rehabilitation, denunciation, punishment and restorative justice 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.

Centuries of practical experience establish that the sentencing task and assessment of the multiplicity of factors involved are best served by the exercise of a broad discretion. That same practical experience, over centuries, suggests that this difficult process of weighing and balancing all of the relevant considerations is best done by an independent, impartial, experienced, professional Judge.

The Honourable J J Spigelman AC
Chief Justice of New South Wales