2.1 The Commission’s terms of reference require us to consider the “rationalisation and consolidation of current sentencing provisions”.¹ This raises the issue of the extent to which the law relating to sentencing, which is found both in the common law and in several statutory provisions, ought to be consolidated. This, in turn, raises two separate questions:

• Is there a case for the consolidation of existing statutory provisions?
• Is there a case for the incorporation of common law principles (or some of them) in any consolidating statute (or statutes)?

Whatever the answer to the second question, the Commission, for the reasons set out in paras 2.7-2.11, does not favour a codification of sentencing law which would attempt to supplant the common law.

THE CONSOLIDATION OF SENTENCING LAW

2.2 The principles on which sentencing are based are found in the common law,² with some statutory modification.³ The more general concern of statute is with the prescription of maximum penalties for particular offences; with the regulation of procedural aspects of sentencing; and with non-custodial sentencing options. Such legislation has proliferated on an ad hoc basis without reference to general principles or any organising framework. This mosaic of laws dealing with sentencing appears unsatisfactory because:

• it fails to yield a comprehensive guide to the principles of sentencing law to which reference can easily be made;⁴ and
• it gives rise to a real risk of error where counsel fails to draw the attention of the court to the appropriate source to which reference should be made.

These deficiencies and dangers have been recognised by the legislatures of most Australian jurisdictions which have recently consolidated their sentencing laws.⁵

2.3 The Law Society, in its response to the Attorney General’s Sentencing Review, agreed that sentencing provisions ought to be consolidated, but felt that memoranda referring to the new statutes should be included in any remaining enactments as a cross referencing tool for the benefit of lay people.⁶ In a submission to the Commission, the Department of Corrective Services submitted that the existing system should be retained and the Periodic Detention of Prisoners Act 1981 (NSW), Community Service Orders Act 1979 (NSW), and Prisons Act 1952 (NSW) should be kept separate unless it is possible to disentangle the sentencing provisions from the existing legislation without the need for extensive cross referencing and unless doubts are resolved as to administrative responsibility for various parts.⁷ The concerns expressed by the Law Society and the Department of Corrective Services do not raise any principled objections to consolidation. In principle, the Commission favours the consolidation of sentencing provisions.

Proposal 1

Statutory provisions relating to sentencing in New South Wales ought to be consolidated.

2.4 The Commission’s tentative view is that the concerns of the Department of Corrective Services can be met if consolidation occurs in two statutes: the first to deal with sentencing principles and policy (for example, the allocation of minimum and additional terms); the second to deal with sentencing administration (for example, the operation of the Offenders Review Board). Western Australia has recently consolidated its sentencing provisions along these lines.⁸ The following table sets out a tentative proposal for division.⁹

Statute	Sentencing law	Sentencing Administration
Children (Community Service Orders) Act 1987	Part 2	Part 3-6
Children (Criminal Proceedings) Act 1987	Part 2 Div 4; Div 5; Part 3 Div 4	Part 3 Div 5
Children (Detention Centres) Act 1987		Whole of Act
Community Protection Act 1994	Sections 5-18, 24, 29	Sections 19-23
Community Service Orders Act 1979	Sections 4-12, 19, 25-26D	Sections 3A, 13-18, 20-24, 26E-27
Crimes Act 1900	Section 19A; Part 12; Sections 476(7), 476(7A), 553-555; Part 15	Part 13
Criminal Procedure Act 1986	Part 6	Part 7, 8
Drug Misuse and Trafficking Act 1985	Sections 33A, 34, 35
Fines and Penalties Act 1901		Whole of Act
Habitual Criminals Act 1957	Sections 4-6, 9	Sections 8, 10
Justices Act 1902	Sections 80, 80A, 80AA, 80AB, 83, 84A-86	Sections 49-50, 82, 86A-97
Periodic Detention of Prisoners Act 1981	Sections 5-5B	Sections 5C-36
Pre-trial Diversion of Offenders Act 1985	Whole of Act
Prisons Act 1952	Sections 26B(1), (2), (4) & (5), 26D, 26E, 34(2)	Part 10
Sentencing Act 1989	Part 2; Part 4	Parts 3-6
Summary Offences Act 1988	Sections 10A(2), 10A(3), 10B(2), 10B(3), 33

[Link to text only version of table]

2.5 The above table is based on the following considerations:

• The Mental Health Act 1990 (NSW) will continue to deal with those living with mental disorders.
• Provisions are listed notwithstanding that consideration is given in this Discussion Paper to their amendment or repeal.
• Provisions dealing with definitions and objects will need to be dealt with appropriately.
• Procedures relating to appeals are not included in either category.¹⁰
• Provisions dealing with the enforcement of sentences are included in the category of sentencing administration.

2.6 The Commission invites submissions on the following:

• whether provisions relating to juvenile sentencing should be contained in separate statutes or, perhaps, a consolidated statute dealing with the sentencing of juvenile offenders;¹¹
• whether all aspects of prison administration should be contained in the sentencing administration statute or in a Prison Act; and
• whether other legislative provisions should be included in the consolidated statutes.

THE RATIONALISATION OF SENTENCING LAW

2.7 While the Commission supports the consolidation of current statutory provisions dealing with sentencing law in New South Wales, that consolidation should not, in our view, attempt to include the principles of the common law. We realise that the trend of recent sentencing legislation in other Australian jurisdictions is to incorporate common law principles into consolidated sentencing legislation.¹² We are strongly of the view that the law of New South Wales ought not to go down this path for a number of reasons.

2.8 First, the reduction of common law principles to statutory form is likely to stultify the development of the law, especially if the consolidation is taken as some form of code. A major characteristic of sentencing law is the wide discretion which resides in the sentencing judge to determine the punishment to be imposed on the offender. In exercising that discretion, the judge endeavours “to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be”.¹³ The discretion involves a synthesis of all factors relevant to the offence and offender to produce an appropriate sentence.¹⁴ That discretion is informed by sentencing principles and policies of the broadest kind.¹⁵ By making the discretion a statutory one, its exercise is inevitably constrained by the words and purposes of the statute. This compromises the flexibility and evolutionary nature of the common law discretion, as well as its ability to adapt to societal changes. The Commission believes that it is essential to retain the flexibility of the common law in order to achieve justice in individual cases. The point is well made by the former Chief Justice of Tasmania, Sir Guy Green:

The rationale for vesting discretionary power in judges is based upon long experience of the processes of decision-making, which shows that there are certain classes of cases which are only capable of being justly determined by the exercise of a discretion rather than by the application of rigid, minutely defined rules laid down in advance. No amount of a priori theorising about sentencing can prevail over that simple empirical conclusion derived from centuries of judicial experience.¹⁶

2.9 Secondly, the broad purposes and principles which characterise common law sentencing are not, in the Commission’s view, in need of restatement or reform.¹⁷ They are the product of a long evolution. At different times and in different contexts, some assume greater importance than others.¹⁸ An attempt to “reform” them is likely to fail. An example is the Australian Law Reform Commission’s attempt to exclude general deterrence from the purposes of punishment. Pursuant to recommendations of that Commission,¹⁹ the Crimes Act 1914 (Cth) mentions only specific deterrence as a factor in sentencing.²⁰ But the omission of general deterrence proved unworkable in practice and has led to its judicial reinstatement.²¹

2.10 Thirdly, it is impossible to provide an exhaustive list of the factors relevant to each offence and each offender to which the court must have regard in sentencing. This is recognised in the recent consolidated sentencing legislation in several Australian jurisdictions, where phrases like “any other relevant matter” are added to the list of factors to which the court must have regard in sentencing.²² Yet the mere listing of such factors contains dangers of its own. For example, what conclusion is to be drawn from the failure of the lists in most jurisdictions to resolve the difficulties which surround the application of particular factors at common law?²³

2.11 Fourthly, it follows that reduction of the common law to statutory form serves no obvious purpose in terms of law reform. At the same time, reduction of the common law to statutory form runs the real risk of obfuscating the law. An example is provided by s 16A of the Crimes Act 1914 (Cth). Section 16A(2) contains a list of the matters which the court must take into account in sentencing; these matters are relevant both to the circumstances of the offence and of the offender. Yet s 16A(2) is subject to the overriding requirement in s 16A(1) that in determining a sentence for a federal offence, a court “must impose a sentence ... that is of a severity appropriate in all the circumstances of the offence”. Does this mean that s 16A(1) limits s 16A(2) by allowing the court to have regard to the matters in s 16A(2) (such as the personal circumstances of the offender) only where doing so does not take the sentence out of the range of sentences “appropriate in all the circumstances of the offence”? If so, the personal circumstances of the offender will not be considered at all.²⁴

2.12 The Commission’s view is that statutory rationalisation of the whole of sentencing law (including the common law) could only be justified if some inherent structural or other defect in the present law requires such radical reform. It is often suggested that the existence of the wide judicial discretion in sentencing is itself that defect.²⁵ This gives rise to the perceived problems of sentence disparity and sentence leniency.

Sentence disparity

2.13 The emphasis on the individualisation of justice in sentencing necessarily leads to the rejection of punishment by reference to a tariff, although a series of cases may establish, or the Court of Criminal Appeal may lay down, a range of sentence for specified categories of offence for offenders with particular characteristics.²⁶ In R v Warfield,²⁷ responding to an argument for a lesser punishment by reference to cases in which sentences lower than that given to the offender were handed down, Justice Hunt said:

[I]t is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range.²⁸

2.14 The absence of a tariff does not mean that the court has no concern with consistency. It is a principle of justice that like cases must be treated alike. That is equally a principle of common law sentencing.²⁹ The principle finds practical expression in the common approach to the exercise of the sentencing discretion in the reasoning of sentencing officers and appeal courts.³⁰

2.15 Given consistency of approach, it is difficult to understand how an argument for sentence disparity can be made, unless the simple fact that two offenders are convicted of the same offence, yet receive substantially different sentences, is taken as evidence of such disparity. Yet sentence disparity cannot be inferred simply from the observation that individuals convicted of the same offence have been sentenced differently.³¹ The circumstances in which one offence is actually committed may be very different from the circumstances of another, even though the offences themselves share the same legal definition. The range of aggravating and mitigating factors that may be relevant to a particular case is so wide that precisely the same combination of factors may never occur in more than one case. We illustrate this fully in Chapter 5 where we consider the most important factors relevant to the determination of sentences in individual cases.

2.16 Meanwhile, the point can be made by presenting two hypothetical examples of the offence of armed robbery, governed by s 97 of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of twenty years imprisonment.

Case 1

An 18 year old man pleads guilty to the offence of armed robbery at the earliest available opportunity. He is addicted to heroin, and was experiencing symptoms of withdrawal at the time of the robbery, which was not planned. The offence was committed for the purpose of obtaining money to buy drugs. While walking through a park, he comes across another young man walking alone, and seeing that no one else is about, he decides to rob him. He threatens the victim with a small switch-blade, which the offender carries on a regular basis. The offender runs away with approximately fifty dollars. He has a brief criminal record for minor drug and public order offences. There is evidence that the offender is of below average intelligence.

Case 2

A 35 year old man is convicted of armed robbery after a long trial. The robbery was committed on a bank, and the evidence shows that several months were spent planning the crime with two co-accused. The offender brandished a loaded shotgun during the robbery, threatening to kill customers and tellers if they refused to comply with his demands. The offenders escape with several thousand dollars. The offender has a long criminal record for offences involving violence and dishonest acquisition, including a conviction for armed robbery committed in similar circumstances.

Both of these cases are examples of armed robbery. Yet the circumstances of each case are quite different. Both the circumstances of the offence itself, and the circumstances of the offender, are dissimilar. Sentence disparity may, conceivably, result from the failure of judges to apply themselves to the principle of sentencing consistency; or from the operation of various subjective considerations resulting in different outcomes for cases which are only superficially similar; or from a combination of the above.

2.17 Arguments that unwarranted sentence disparity exists must, therefore, identify systematic and substantial variation in sentences for very similar cases. The evidence which might prove unwarranted sentence disparity is often circumstantial and impressionistic,³² and the statistical methods for measuring it are complex and unsatisfactory.³³ A recent study of the Bureau of Crime Statistics and Research attempted to evaluate, as a factor influencing “judge-shopping”,³⁴ the extent and impact of sentence disparity in the District Court. The study compared the incidence of the imposition of sentences of imprisonment by District Court judges. Two sample groups were selected. One group comprised the five judges who sentenced offenders to imprisonment in proportionally the highest number of cases. The other group comprised the five judges who sentenced offenders in proportionally the lowest number of cases. The study purported to find substantial disparities between the sentencing behaviour of the two groups.³⁵ According to the study, the disparities were reflected across particular offence categories and could not be explained by judges dealing with offences of different seriousness.³⁶ The Commission is not persuaded that this study provides evidence of general sentencing disparity in the District Court. First, the study selected two groups of judges whose sentences, proportionally, fell at the extremes of relevant ranges. It therefore says nothing of the sentences of the remaining 42 judges whose sentencing patterns fell between the two extremes (where an impressionistic view of the percentages is not suggestive of disparity).³⁷ Secondly, the study selects as sentence-relevant characteristics only plea and type of offence, all other remaining characteristics being assumed to vary randomly across cases dealt with by different judges.³⁸ As we have just attempted to show,³⁹ such an assumption simply cannot be made.

2.18 The recent popularity of the “just deserts” theory of sentencing with its emphasis on proportionality,⁴⁰ has given prominence to the discussion of sentence consistency. In truth, the debate about sentence consistency has been around for many years. It was, for example, a recurrent theme in proposals for the reform of sentencing in the second half of the nineteenth century.⁴¹ With or without “just deserts”, sentence consistency will continue to be debated into the foreseeable future.

2.19 The Commission is of the view that sentence “disparity” should only be considered a problem if it can be shown that like offenders who have committed crimes in like circumstances have not been punished equally. Of course, in so far as sentencing disparity can be shown to be unwarranted, it is desirable to identify methods which may improve sentence consistency. The Commission is not, at this stage of our inquiry, persuaded that any of the statutory reforms which are aimed at the reduction of sentencing “disparity” by limiting judicial discretion and which have been adopted in other jurisdictions, should be followed in New South Wales.⁴²

Statutory sentence disparity

2.20 The initial factor relevant to the determination of the quantum of sentence for any crime is the maximum penalty which legislation applies to it.⁴³ That penalty reflects the legislature’s view of the seriousness of the offence,⁴⁴ with the maximum reserved for the worst types of the offence in question.⁴⁵ Parliament has specified maximum penalties for offences at different times and without the benefit of a consistent policy to determine what the maximum penalty for each offence should be. The result is that the maxima are often said to be inconsistent,⁴⁶ though this assumes at least some agreement on criteria for ranking of offences in terms of seriousness.

2.21 Even where a court regards the maximum penalty as too high or too low, it will nevertheless accord the penalty its normal weight in determining the seriousness of the offence.⁴⁷ In such cases, the maximum penalty can, obviously, operate as a factor contributing to “disparity” since the starting point of consideration of offence seriousness is artificial. The third phase of this reference will be devoted to the question of whether or not it is justifiable and feasible to rank offences in terms of seriousness.⁴⁸

Sentence leniency

2.22 The fallacy of making an argument about sentence disparity from a comparison of different sentences for the same offence is obviously compounded when a comparison is made between different sentences for different offences. In both cases the purpose of the argument is often not simply to identify disparity, but also to argue that the sentence in one of the cases is too lenient in comparison to the other. Many of the most virulent attacks on sentencing - usually by the media - concern supposedly lenient sentences which appear to be significantly different from sentences handed down for the same or for “less serious” crimes.⁴⁹

2.23 To be plausible, such an argument would have to take into account not only the particular circumstances of the offence and of the offender, but also, where different offences are involved, an agreed gradation of the relevant offences in terms of comparative seriousness. Even then, there would have to be some agreed definition of “leniency” to act as a reference point for assessing such claims. This point could not itself be fixed without agreement as to the underlying objects of punishment.

2.24 The Commission is not aware of any empirical studies which show that sentences in New South Wales are too lenient either in absolute terms or, for example, in comparison to sentences in other Australian jurisdictions.⁵⁰ Indeed, those members of the Division who have experience of practice outside New South Wales are of the view that sentences served here tend to be longer than in other Australian jurisdictions. The Sentencing Act’s abolition of remissions without any corresponding reduction of sentences⁵¹ must have contributed to this result. Other jurisdictions which have abolished remissions have offset the effect of abolition by making appropriate reductions in sentences.⁵²

A matter of community concern?

2.25 The Commission has given serious consideration to whether or not a radical reform of the sentencing system is necessary because sentence disparity and leniency - particularly the latter - is a matter of community concern. The community’s faith in the criminal justice system must, of course, be maintained. As Sir John Barry once wrote:⁵³

[The criminal law] must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community’s generally accepted standards of what is fair and just. Thus it is a fundamental requirement of a sound legal system that it should reflect and correspond with the sensible ideas about right and wrong of the society it controls, and this requirement has an important influence on the way in which the judges discharge the function of imposing punishments upon persons convicted of crime.

2.26 The problem is how to determine whether or not the punishments imposed by the courts reflect community values. Media assertion of community concern is, of course, insufficient. Such assertions may occur in a number of contexts - for example, in the course of promoting a viewpoint favoured by the media or their informants; or of sensationalising the news, often by playing on the public’s fear of crime.⁵⁴

2.27 Nor must “community concern” be confused with any particular political platform, whether media driven or not. Sentencing issues are often included in the law and order platforms of political parties.⁵⁵ Sections of the media, “for whom the responsibility for the decline of civilization as it [knows] it [can] be placed at the door of the criminal-justice system”,⁵⁶ often promote such agenda. An important example of the dangers of confusing sentencing issues with a political platform is provided by media involvement in the victims movement. Lucia Zedner has written of the victims movement which emerged in the USA in the 1960s and 1970s:

Largely conservative in outlook, often seeking a more punitive response to offenders, it was in some states associated with demands for the reintroduction of the death penalty. Dissatisfied with the existing responses to victims, the movement demanded a reorientation of the criminal justice system to take account of the needs, and, increasingly, the “rights” of victims.⁵⁷

2.28 Clearly there is a danger that such a movement can be exploited, perhaps willingly, by a law and order political lobby.⁵⁸ This can result in the genuine concerns of victims⁵⁹ being distorted and misrepresented. Significantly, Victim Support, the largest and oldest victim support group in the United Kingdom, has distanced itself from entering into debates on sentencing policy for the very reason that it does not wish its mission to be compromised by the politics of the law and order lobby.⁶⁰

2.29 Even where the views of the community on sentencing are independently sought and tested, it is essential to ensure that those views are based on full facts, not, for example, on media reports. To quote Sir Guy Green once again:

Media reports about particular sentences rarely, if ever, disclose all the relevant materials and factors. But in order properly to appreciate what actuated a sentence one needs to know the facts (as they were presented in court not as they were presented later in, say, a television interview of the complainant’s mother), the offender’s personal circumstances and prior convictions, the contents of any pre-sentence reports, what submissions were made in mitigation, whether there were any statutory legal constraints upon the exercise of the discretion and the full reasons given by the judge for the sentence which he or she imposed. Some of those factors might be reported in a particular case but very rarely would they all be reported and even more rarely would they all be reported accurately. Public views about sentencing must also be assessed in the light of the fact that only a relatively small proportion of sentences are reported and many of those which are, are atypical (which is often why they are regarded as reportable). In short, the conclusions about sentencing reached by the average member of the public are drawn largely from inaccurate or inadequate reports of a small and unrepresentative sample of sentencing cases.⁶¹

2.30 Without full facts, it is likely that the public’s views of sentencing will be based on a perception of crime which is distorted by stereotypes often involving images of violence, and which is fuelled by an erroneous belief that crime can be punished away.⁶² This means, at least, that the tools for conducting surveys of community attitudes require a high degree of sophistication,⁶³ as is recognised, for example, in relation to crime victim surveys.⁶⁴ Responding to earlier surveys which were based on a single question which asked the interviewee whether he or she thought judicial sentences too lenient and whose results portrayed the public as more punitive than judges, later surveys have presented the interviewee with at least some facts before eliciting a response.⁶⁵ Some results suggest that, when confronted with the facts of particular cases, members of the public would impose sentences broadly in line with the actual sentences given by courts, or, sometimes, more lenient sentences.⁶⁶ Others continue to suggest that the public would impose longer sentences than judges.⁶⁷ The Commission is not aware of any recent surveys of this nature in New South Wales. In our view, there is no persuasive empirical evidence to suggest that the sentences imposed by the courts are out of step with community values.⁶⁸ In such a context, a “uniform inflation of sentences would not do justice to the complexity of public views”.⁶⁹

QUESTIONS ARISING IN CHAPTER 2



1. Should statutory provisions dealing with sentencing be consolidated?

2. Should sentencing provisions be consolidated into two statutes, one dealing with sentencing law, the other dealing with sentencing administration?

3. Should provisions dealing with sentencing of juveniles be contained in a separate statute or statutes?

4. Should all aspects of prison administration be included in a statute dealing with sentencing administration?

5. Should a consolidation of sentencing law incorporate the principles of the common law?

6. Can unwarranted disparity or unjustifiable leniency in sentences be identified?

7. Is sentence disparity or leniency a matter of community concern?

1. The Commission’s terms of reference are set out at p xiii.

2. For example, the principles relating to punishment (Chapter 3) and the determination of sentences in individual cases (Chapter 5).

3. See, eg, Justices Act 1902 (NSW) s 80AB which states the principle for Local Courts that imprisonment is a sentence of last resort. Compare Crimes Act 1914 (Cth) s 17A. See also Chapter 4 dealing with the statutory regulation of the ratio between minimum and additional terms.

4. See Roos v DPP (1994) 34 NSWLR 254 at 256 per Handley JA (dealing with the sentencing of juveniles).

5. See Crimes Act 1914 (Cth) Part 1B; Crimes Act 1900 (ACT) Part XII (inserted by Crimes (Amendment) Act (No 2) 1993 (ACT)); Penalties and Sentences Act 1992 (Qld); Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1991 (Vic); Sentencing Act 1995 (NT); Sentencing Act 1995 (WA); Sentencing Administration Act 1995 (WA).

6. Law Society of New South Wales, Submission to Attorney General’s Sentencing Review (25 July 1994).

7. New South Wales, Department of Corrective Services, Submission (4 September 1995).

8. Sentencing Act 1995 (WA) and Sentencing Administration Act 1995 (WA). See also Sentencing (Consequential Provisions) Act 1995 (WA). The legislation was assented to on 16 January 1996.

9. Only those provisions which are to be transferred need to be repealed from their original statutes although, in some cases, this may result in the repeal of an entire Act.

10. See, for example, Criminal Appeal Act 1912 (NSW) s 5D, 5DA, 5E, 6A, 6AA, 7, and 9.

11. This would include Part 4 of the Sentencing Act 1989 (NSW) in addition to Children (Community Service Orders) Act 1987 (NSW), Children (Criminal Proceedings) Act 1987 (NSW) and Children (Detention Centres) Act 1987 (NSW).

12. See Criminal Law (Sentencing Act) 1988 (SA) especially s 10-11; Crimes Act 1914 (Cth) especially Part 1B Division 2; Sentencing Act 1991 (Vic) especially Part 2; Penalties and Sentences Act 1992 (Qld) especially Part 2; Crimes Act 1900 (ACT) especially Part XII Division 1; Sentencing Act 1995 (NT) especially Part 2; Sentencing Act 1995 (WA) especially Part 2 Division 1 (to a lesser extent).

13. Webb v O’Sullivan [1952] SASR 65 at 66 per Napier CJ. See also Budget Nursery Pty Ltd v FCT (1989) 42 A Crim R 81 at 85 (NSW CCA).

14. R v Williscroft [1975] VR 292 at 300.

15. R v Geddes (1936) 36 SR (NSW) 554 at 555 per Jordan CJ. The purposes and policies underlying sentencing are considered in Chapter 3.

16. G Green, “The Concept of Uniformity in Sentencing” (1996) 70 Australian Law Journal 112 at 119-120.

17. See generally Chapter 3.

18. See paras 3.22-3.23.

19. Australian Law Reform Commission, Sentencing (ALRC 44, 1988) para 37.

20. Crimes Act 1914 (Cth) s 16A(2)(j).

21. See R v Paull (1990) 20 NSWLR 427; DPP v El Kaharni (1990) 21 NSWLR 370. See also R v Sinclair (1990) 51 A Crim R 418; R v Corbett (1991) 52 A Crim R 112; R v Lambert (1990) 51 A Crim R 160.

22. Criminal Law (Sentencing Act) 1988 (SA) s 10(o); Crimes Act 1914 (Cth) s 16A(2); Sentencing Act 1991 (Vic) s 5(2)(g); Penalties and Sentences Act 1992 (Qld) s 9(2)(p); Crimes Act 1900 (ACT) s 429A(1); Sentencing Act 1995 (NT) s 5(2)(s).

23. See para 5.4.

24. See Green at 120-121. Compare Sentencing Act 1995 (WA) s 6-8.

25. The dissatisfaction of wide judicial discretion in sentencing is, partly, a response to the “just deserts” theory with its emphasis on proportionality (see paras 3.4-3.5) and, partly, a manifestation of a wider concern with uncontrolled discretion which emerged particularly after Davis’ famous study of discretion in 1969: see K C Davis, Discretionary Justice: A Preliminary Inquiry (Louisiana State University Press, Baton Rouge, 1969).

26. See, for example, R v Ferrer-Esis (1991) 55 A Crim R 231.

27. (1994) 34 NSWLR 200.

28. Warfield at 207 per Hunt CJ at CL (with whom McInerney and James JJ agreed). Compare the approach of the English Court of Appeal: see A Ashworth, Sentencing and Penal Policy (Weidenfeld and Nicolson, London, 1983) at 35-42.

29. See paras 3.38-3.40.

30. Green at 117.

31. D Weatherburn, Sentence Disparity and its Impact on the NSW District Criminal Court (Report 34, New South Wales Bureau of Crime Statistics and Research, 1994) at 5.

32. Green at 113-115; R G Fox, “Controlling Sentencers” (1987) 20 ANZ Journal of Criminology 218 at 223. For a summary of some Canadian research, see Department of Justice, Canadian Sentencing Commission, Empirical Research on Sentencing (1988) at 15-18.

33. Weatherburn at 7-8.

34. Ultimately, the suggestions that sentence disparity may effect the willingness of defendants to plead guilty or to abscond from bail could not be evaluated with any certainty: Weatherburn at 14-15.

35. Weatherburn at 10. The judge who sentenced offenders proportionally most frequently did so in 61.2% of cases where the offender pleaded guilty to the charge(s). The judge who sentenced offenders proportionally least frequently did so in 26.4% of cases where the offender pleaded guilty.

36. Weatherburn at 10. If the group who least often used imprisonment as a sentencing option also tended to deal with the least serious cases, the disparity may have been explained on this basis.

37. Weatherburn at 11.

38. Weatherburn at 9.

39. See para 2.8.

40. See paras 3.3-3.5.

41. See D A Thomas, Constraints on Judgment: The Search for Structured Discretion in Sentencing 1860-1910 (University of Cambridge, Institute of Criminology, Occasional Series No 4, 1979).

42. See paras 6.36-6.66.

43. R v Oliver (1980) 7 A Crim R 174 at 177 per Street CJ. See paras 3.42, 5.9-5.12.

44. Oliver at 177.

45. Veen v The Queen (No 2) (1988) 164 CLR 465 at 478.

46. For example, Attorney General’s Sentencing Review 1994 at 56.

47. Consider paras 5.9-5.10.

48. See paras 1.18-1.20.

49. A recent highly publicised example was the five year recognisance imposed upon Graeme MacDonald, who was convicted of manslaughter, and sentenced in November 1995: see, for example, Editorial, “Sentence Doesn’t Fit the Crime” Daily Telegraph Mirror, 18 November 1995, at 10; N Vincent, “A Killer Goes Fishing” Daily Telegraph Mirror, 20 November 1995, at 3. The sentence was quashed and a custodial punishment imposed by the Court of Criminal Appeal: R v MacDonald (NSW CCA, No 60700/95, 12 December 1995, unreported). The media was less critical: see “Appeal Judges End Fishing Killer’s Freedom - Back to Jail” The Daily Telegraph Mirror, 12 December 1995, at 1-2.

50. In any event, the argument that there should be uniformity in sentencing between Australian jurisdictions fails to take into account the influence of local conditions: see Green at 117-118.

51. See para 4.13.

52. For example, Sentencing Act 1991 (Vic) s 10; Sentencing Act 1995 (NT) s 58.

53. The Courts and Criminal Punishment (Government Printer, Wellington, 1969) at 14-15. Sir John Barry (1903-1969) was a judge of the Supreme Court of Victoria. He was the first Chairman of the Parole Board of Victoria and Chairman of the Department of Criminology at the University of Melbourne.

54. See P Grabowsky and P Wilson, Journalism and Justice: How Crime is Reported (Pluto Press, Sydney, 1989). See also P Schlesinger and H Tumber, Reporting Crime: The Media Politics of Criminal Justice (Clarendon Press, Oxford, 1994).

55. The NSW State elections in March 1995 are an example. Law and order issues had featured prominently in the election campaign, so much so that there was “widespread criticism of both sides of politics for conducting a law-and-order ‘auction’ in a bid to win votes on the crime issue”: see “Crime Debate in NSW Out of Order” Weekend Australian, 11-12 March 1995, at 22. In contrast to Labor’s sentencing policy which has been outlined in paras 1.5-1.9, the Coalition offered a “three strikes and you’re in” alternative: see especially Tony Vinson, “Fahey’s Three Strikes Policy is the Latest Bid in a Decade-Long Devil’s Auction” Sydney Morning Herald, 13 March 1995, at 13; G Zdenkowski, “Due Process Pushed Aside in the Rush to be Seen as Tough on Law and Order” Sydney Morning Herald, 2 March 1995, at 15.

56. A Freiberg, “Sentencing Reform in Victoria: A Case Study” in C Clarkson and R Morgan, The Politics of Sentencing Reform (Clarendon Press, Oxford, 1995) at 51.

57. M Maguire, R Morgan and R Reiner, The Oxford Handbook of Criminology (Clarendon Press, Oxford, 1994) at 1227.

58. See R Harding, “Equal Time for Victims” The Bulletin 13 September 1995 at 36-37. That the rhetoric of victims’ rights is used as the basis for a punitive law-and-order political platform is one reason for an apparent reaction against the victims’ movement which has recently emerged in Canada. Other reasons include the motivation behind the movement (which seems to be vengeance rather than justice) and its middle-class orientation which is unrepresentative of the majority of victims of violent crime - that is, the poor who know their attackers. See L Stern, “Victims Rights: Have They Tipped the Scales Too Far?” The Ottawa Citizen (8 November 1995).

59. See para 11.12.

60. Harding at 36.

61. Green at 116.

62. For a convincing refutation of this belief, see especially K Hamburger, “The Director-General’s Perspective” in Queensland Corrective Services Commission, Annual Report 1994/95 (Brisbane, 1995) at 6-9.

63. See D Indermaur, “Public Perception of Sentencing in Perth, Western Australia” (1987) 20 ANZ Journal of Criminology 163.

64. See Crime Victim Surveys, Proceedings of a Conference Held at Griffith University, 18-29 November 1994 (Criminal Justice Commission, Brisbane, 1995).

65. See J Roberts and A Doob, “Sentencing and Public Opinion: Taking False Shadows for True Substances” (1989) 27 Osgoode Hall Law Journal 490.

66. Roberts and Doob. See also M Hough and D Moxon, “Dealing With Offenders: Popular Opinion and Views of Victims - Findings From the British Crime Survey” (1985) 24 The Howard Journal 160.

67. D Indermaur, “Perceptions of Crime Seriousness and Sentencing in Western Australia”, paper presented at the 7th Annual Conference of the Australian and New Zealand Society of Criminology, Melbourne, 3 October 1991.

68. See also Canada, Department of Justice, Canadian Sentencing Commission, Empirical Research on Sentencing (1988) at 53-57. Compare Australian Law Reform Commission, Sentencing of Federal Offenders (ALRC 15, 1980) at para 136.

69. Roberts and Doob at 515.