New South Wales’s highest Criminal Court the Court of Criminal Appeal (CCA), has adopted an innovative and different approach to the determination of criminal sentences. For the first time in Australia, the CCA will issue guideline judgments for trial judges which establish principles and indicate a range of appropriate penalties for particular offences.
As Chief Justice of New South Wales I am very conscious that there is from time to time criticism of sentencing decisions. In this article I explain the new system of guideline judgments which will, in due course, ensure that there is consistency in sentencing practices for particular offences. Inconsistency is a form of injustice and contradicts the principle of equality for all before the law.
The first guideline judgment was delivered yesterday by a special bench of the CCA comprising five judges including myself. The appeal involved a conviction for the offence of dangerous driving causing death or grievous bodily harm. The judgment states that it appeared that sentences imposed by trial judges for this offence did not reflect the seriousness with which the community regarded these particular offences.
The CCA has pointed out on more than one occasion that the substantial increase in penalties for these offences by the Parliament in 1994, should be reflected in a sharp upward movement in penalties. The number of instances in which this has not occurred is sufficient to warrant a guideline judgment.
The CCA has laid down two guidelines. First, sentences which do not involve imprisonment should be exceptional and ordinarily confined to cases in which there had been a momentary inattention or misjudgment by the driver. Secondly, in cases where the abuse of alcohol or drugs, excessive speed or the manner of driving indicated that the offender had abandoned responsibility for his own conduct, sentences should usually commence from a period of two years imprisonment (for the offence of occasioning grievous bodily harm) and three years imprisonment for an offence occasioning death. The CCA also identified a list of aggravating factors which would justify higher sentences.
Aggravating factors relating to the conduct of the driver are:
- Degree of speed.
- Degree of intoxication or of substance abuse.
- Erratic driving.
- Competitive driving or showing off.
- Length of the journey during which others were exposed to risk.
- Ignoring of warnings.
- Escaping police pursuit.
The presence of one of these aggravating features may indicate that the driver abandoned responsibility for his or her conduct.
The presence of, and the degree of, these aggravating features, coupled with the extent and nature of the injuries inflicted and the number of people at risk, will determine the appropriate penalty.
The CCA’s decision regarding the offence of dangerous driving is itself a manifestation of the ability of the courts to respond to community concerns. The decision affirms the long established proposition that the community’s wish to denounce conduct and to deter others from engaging in conduct are relevant matters for judges to take into account when determining sentences.
However, denunciation and deterrence are not the only considerations relevant to ensuring that justice is done in an individual case. Sentencing is also directed to protecting the public by rehabilitation of offenders. These various objectives of sentencing may sometimes conflict. It is a fact that there is no simple way of determining the appropriate relationship amongst such conflicting objectives. That is why the discretion sentencing judges have is important and must be maintained. The exercise of that discretion must, however, occur within bounds of consistency. The new approach of sentencing guideline judgments is designed to ensure that this occurs.
It is an important, indeed, characteristic, aspect of our system of criminal justice that sentences can be tailored by judges to the circumstances of an individual case. Guideline judgments allow for the flexibility necessary to ensure that the great variety of particular circumstances are properly reflected in the sentences that are imposed by the courts. The requirements of justice and the requirements of mercy do not always coincide. However, in our society both are important objectives which must be served by the decision of judges.
I said in the CCA’s reasons for judgment, which all four other judges agreed:
“Guideline judgments should now be recognised in New South Wales as having a useful role to play in ensuring that an appropriate balance exists between the broad discretion that must be retained to ensure that justice is done in each individual case, on the one hand, and the desirability of consistency in sentencing and the maintenance of public confidence in sentences actually imposed and the judiciary as a whole, on the other.”
Other proposals are sometimes made for restricting the discretion which judges exercise in making decisions on sentence. However, there are always exceptional cases and special circumstances. The adoption of a system of guideline judgments will enable the courts to structure the exercise of discretion, whilst retaining the ability of the trial judge to adapt a sentence to the facts of the particular case. The guidelines which will, in the future, be issued by the CCA will not propound rules that have to be followed in every single case. Rather they will provide indicators, departure from which will be explained in the published reasons of sentencing judges.
Consistency in sentencing does not mean that all judges must adopt the same approach. Judges reflect the wide range of differing views on such matters that exist in the community. However there are limits to the permissible range of variation. As I said in the judgment:
“Public criticism of particular sentences for inconsistency or excessive leniency is sometimes justified.”
It does not appear that the normal course of appeals against sentences has been able to satisfy significant sections of the community that consistency in sentencing does occur. The system of guideline judgments is designed to promote such consistency and to confirm public confidence in the administration of criminal justice.
12 October 1998
