Introduction

Sentencing a person convicted of a criminal offence has always been difficult but it has become an increasingly technical task. The Sentencing Bench Book provides ready access to sentencing law. It is published as a looseleaf service in order to easily accommodate changes in the law.

Chief Justice Gleeson remarked in 1993 that:

There is no aspect of the administration of justice in which public acceptance of judicial decision-making is more important, or more difficult to sustain, than the sentencing of offenders. Most judges and magistrates will say that they find sentencing one of the most difficult tasks confronting them. (The Sydney Morning Herald, 2 December 1993, extracted from “Sentencing: The Law’s Communication Problem,” a speech delivered to the Criminal Bar Association, 19 November 1993).

The High Court has described sentencing as “a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money”: Weininger v The Queen (2003) 212 CLR 629 at [24]. Later in Markarian v The Queen (2005) 228 CLR 357 at [27], the High Court explained that, ordinarily, there is no single route that a sentencer must take in arriving at an appropriate sentence:

The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence [Pearce v The Queen (1998) 194 CLR 610 at 624 [46]]. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies [Johnson v The Queen (2004) 78 ALJR 616 at 618 [5] per Gleeson CJ, 624 [26] per Gummow, Callinan and Heydon JJ; 205 ALR 346 at 348, 356].

The primary object of the Sentencing Bench Book is to assist sentencers in individual cases to “[take] into account all relevant considerations … in forming the conclusion reached”. Individualised justice is an important aspect of sentencing. In R v Whyte (2002) 55 NSWLR 252 at [147], Spigelman CJ said:

The maintenance of a broad sentencing discretion is essential to ensure that all of the wide variations of circumstances of the offence and the offender are taken into account. Sentences must be individualised.

Consistency in sentencing is achieved by the proper application of the relevant legal principles: Hili v The Queen (2010) 85 ALJR 195 at [18], [49]; The Queen v Pham (2015) 256 CLR 550 at [28]. Intermediate appellate court cases are the most useful guidance for sentencing judges: The Queen v Pham at [28], [50]. Therefore, by articulating sentencing principles, the Sentencing Bench Book assists the courts to achieve consistency in imposing sentences. Consistency of approach in applying sentencing principles is essential if reasonable consistency (as referred to by Gleeson CJ in Wong v The Queen (2001) 207 CLR 584 at [6], Hili v The Queen at [18] and The Queen v Pham at [28]) is to be achieved. It is sometimes forgotten in debates about sentencing that judicial officers are bound by sentencing principles: M Gleeson, “A core value” (2007) 8(3) TJR 329.

Since the early 1990s there has been an increasing tendency of Parliament to legislate in the area of sentencing law. The High Court has emphasised the importance of following strictly the terms of exhaustive sentencing provisions. In Adams v The Queen (2008) 234 CLR 143 at [10], the court frowned upon “judicially constructed harm-based gradation of penalties” for particular kinds of drugs when “Parliament has made its own judgment as to an appropriate penal response to involvement in the trade in illicit drugs” through a quantity based statutory scheme. And in Hili v The Queen at [13], [37]–[38], the court disapproved of Court of Criminal decisions which accepted a “judicially determined norm” for non-parole period and recognizance release orders for Commonwealth offenders. Part IB Crimes Act 1914 (Cth) has made exhaustive provision for these subjects. On the other hand, in Muldrock v The Queen (2011) 244 CLR 120, the court held that the NSW Court of Criminal Appeal should not have attributed determinative significance to standard non-parole periods for selected NSW offences. The legislation required an approach to sentencing whereby the judge identifies all the factors that are relevant to the sentence, discusses their significance, and then makes a value judgment as to what is the appropriate sentence.

The Crimes (Sentencing Procedure) Act 1999 (NSW) consolidated and rationalised various sentencing statutes. The Act has been amended many times since it was first enacted. A key amendment was: the creation, in s 21A, of a list of aggravating and mitigating matters that a sentencer may take into account in setting an appropriate sentence. Section 21A proved to be the source of a significant amount of litigation in the Court of Criminal Appeal. In Mapp v R [2010] NSWCCA 269, Simpson J, in the context of these provisions, referred to “the increasing complexity that attends sentencing” (at [6]) and cautioned that this “complexity casts an undue burden on sentencing judges” (at [8]).

In the past it may have been more appropriate to provide a commentary on the common law in which statutes touching on sentencing appeared. However, the reverse is now more appropriate — a commentary on the statutes touching on sentencing in which the common law appears.

The Sentencing Bench Book contains commentary on five key sentencing statutes:

  • Crimes (Sentencing Procedure) Act 1999 (NSW)

  • Children (Criminal Proceedings) Act 1987 (NSW)

  • Crimes Act 1914 (Cth)

  • Criminal Appeal Act 1912 (NSW)

  • Mental Health (Forensic Provisions) Act 1990 (NSW).

It also contains commentary on sentencing law for the following offence categories:

  • assault, wounding and related offences

  • break and enter offences

  • car-jacking and car rebirthing offences

  • Commonwealth drug offences

  • damage by fire and related offences

  • dangerous driving

  • detain for advantage/kidnapping

  • domestic violence offences

  • Drug Misuse and Trafficking Act 1985 (NSW) offences

  • firearms and prohibited weapons offences

  • fraud offences

  • manslaughter and infanticide

  • murder

  • public justice offences

  • robbery

  • sexual assault

  • sexual offences against children.

The Sentencing Bench Book, like any looseleaf service, is a work in progress. More offence categories will be added where required.

I trust that judicial officers, practitioners and anyone interested in sentencing will find the Sentencing Bench Book to be both informative and useful.

Hugh Donnelly
Director, Research and Sentencing
July 2016