Number 25 – December 2002
Sentencing Methodology: Two-tiered or Instinctive Synthesis
Sally Traynor, Research Officer*
Ivan Potas, Director, Research and Sentencing
Open justice is a fundamental principle enshrined in our legal system and nowhere is it more important than when a court seeks to exercise the punitive powers of the State. As part of the process of judicial accountability, judicial officers are required to give reasons for the sentences they impose. In turn, sentencing decisions are often closely scrutinised by the media, interested members of the public, academics, legal practitioners and, of course, other judicial officers. In many ways the sentence that is handed down, together with the reasons for sentence, provide one of the few means by which the community, the victim and the offender are able to gauge whether justice has been done in accordance with the principles of consistency and fairness.
The task of sentencing is often complex and difficult, and it has become all the more difficult and the proper approach unclear, because of a divergence of opinion in the High Court. Recent decisions of the High Court have drawn attention to a division amongst its members over the merits of two opposing sentencing methodologies: “two-tiered“ and “instinctive synthesis“. This division, discussed in detail below, is highlighted by the recent decisions of Wong v The Queen; Leung v The Queen1 and Cameron v The Queen.2
The current debate, yet to be resolved by the High Court, has caused much confusion and concern as to what precisely is meant by the term instinctive synthesis, and how and when it should be applied. The debate also raises broader issues, such as the importance of judicial discretion in the sentencing process, and how best to accommodate different, and often competing, sentencing philosophies (such as retribution, rehabilitation and community protection). There are many factors to consider in sentencing, including the objective features of the crime and the subjective features of the offender (particularly factors identified as either aggravating or mitigating). Should the sentencing judge or magistrate reduce, in a single step, the multiple factors relevant to the sentencing decision to a single value? Is this what instinctive synthesis means? If so, what are the implications of such an approach in terms of judicial accountability and consistency?3
Alternatively, is the process for determining sentence amenable to a staggered or staged approach where weight is given to certain specific factors first (sometimes leading to a notional or “otherwise appropriate“ sentence), and further weight is given to other specified facts (or factors) which assist in fine-tuning or adjusting the sentence (usually upward or downward) to produce the final sentence? What are the problems, if any, associated with a sequential approach of this kind? Is the instinctive synthesis approach really to be favoured and the two-tiered approach likely to produce error?
To compound the confusion, recent decisions of the NSW Court of Criminal Appeal appear to have endorsed two-stage sentencing in some circumstances and have refused to find error where such an approach has been adopted.4 Indeed, the distinction between the two approaches has been described as being “largely semantic“.5 In other cases, however, the instinctive synthesis approach has been applied or else described as the correct general approach.6
The following article traces the development of case law in Victoria and NSW, with some consideration also given to other jurisdictions, and critically explores the arguments for and against decision-making by way of instinctive (sometimes also referred to as “intuitive“) synthesis. As the concept of instinctive synthesis is often presented as diametrically opposed to two-tiered (or two-stage) sentencing, the latter is also discussed. Finally, we conclude by expressing some of our own views on this topic.
2. Meaning of “two-tiered“ sentencing
For the purpose of this article we do not distinguish between the terms two-tiered and two-stage (or other variants such as two-staged or two-step). These expressions are taken to describe the same concept and appear to be used interchangeably. However, it is difficult to derive an adequate definition, because, as the case law shows, the terms are used loosely and apply to a variety of situations.
Two-tiered sentencing may describe the approach or method of reasoning adopted by a sentencing judge or magistrate when he or she first considers the objective circumstances of the offence (factors going to the gravity of the crime itself) in order to gauge an appreciation of the seriousness of the offence (tier one), and then considers all the subjective circumstances of the offender (often a bundle of aggravating and mitigating factors relating to the offender rather than the offence) (tier two), before deriving the sentence to be imposed. This staged process of reasoning may be described as the broad meaning of two-tiered sentencing.
The concept of two-tiered sentencing also applies to a process of reasoning by which the sentencer first specifies a sentence regarded as proportionate to the crime or as otherwise appropriate to the circumstances of the case and then, by reference to a particular factor, proceeds to specify an amount by which that sentence is to be varied. A typical example of this is where the court states that it is reducing the sentence it would otherwise impose by a specified percentage because of an offender‘s guilty plea, or by reference to an offender‘s assistance to authorities or by both of these factors. This procedure is more overtly mathematical (particularly if a discount in the form of a percentage is specified) than the meaning described above and may therefore be defined as the narrow meaning of two-tiered sentencing.
Sometimes there is a mix of these two approaches, and the concept of a”starting point” for sentence is employed as a basis for calculating the final sentence. The requirement is that the sentence is derived in staged or sequential steps, that is, weight is given to some variables first (usually, but not always, objective factors relating to the gravity of the offence) to derive the notional sentence and then to further variables to produce the final outcome.
Consider, for example, the following statement from the re-sentencing decision in R v Bourchas which suggests a sequential process of reasoning:7
“In place of the 17 years to which the judge came, I consider that but for the assistance to the authorities and the plea of guilty the term of imprisonment should be 14 years, after making the usual allowance of one third for the absence of remissions from an initial 21 years.“
2.1 Other meanings of two-tiered
There are other examples of decision-making that could be described as involving at least two distinct steps or stages in sentencing. Difficult borderline cases in which the court contemplates whether to impose a custodial sentence may involve two steps. The first step may involve a choice relating to the type of sentence to impose: should the sentencer impose a sentence of imprisonment or a non-custodial sanction? The second step may then involve determining the length or quantum of the sentence to be imposed.
If a non-custodial sentence is imposed, further steps may then involve a consideration of the kind of non-custodial sentence and attached conditions. If a term of imprisonment is imposed, the setting of a non-parole period may be seen as a separate or discrete stage of the sentencing process, particularly when consideration is given to whether there are special circumstances justifying departure from the statutory norm.8
In some situations there will be a statutory requirement for a two-step process. For example, in NSW a court is required to impose a sentence of imprisonment before considering whether that sentence should be served by way of periodic detention or home detention, or be suspended.9
However, as the objections relating to two-tiered sentencing do not appear to apply to any of these latter categories, they are not included in our definition of two-tiered sentencing for the purposes of this article.
2.2 As opposed to instinctive synthesis
To date, there does not seem to be any clear or single definition of what constitutes a two-stage approach and as the case law shows, its meaning seems to vary according to the context in which it is applied. At times a two-stage approach involves a mathematical approach, such as an express percentage discount for one or more mitigating factors.
Sometimes it means a process of reasoning involving the determination of a ceiling or starting point based on the objective gravity of the offence, followed by an adjustment for particular factors. Whatever else it may mean it does seem to involve the decision-maker arriving at one value or type of sentence first and then, either incrementally or in one further step, deriving the final sentence that is imposed.
A process of sequential reasoning, sometimes criticised as being synthetic or artificial, seems to be an integral part of this approach. In contrast, the instinctive synthesis approach purports to derive the appropriate sentence by looking at all the relevant factors and sentencing principles, and determining their relative weights by reference to all the circumstances of the case. The balancing of all the relevant considerations takes place in a single step or synthesis, not sequentially.
3. Derivation of instinctive synthesis
In Australia, the idea that sentencing was based largely on instinctive synthesis was first expressed in a statement of the Victorian Supreme Court in R v Williscroft,10 and later firmly endorsed in R v Morton11 and again in R v Young, Dickenson and West.12 In Williscroft, Adam and Crockett JJ (Starke J dissenting) examined the different purposes of punishment and found that despite the emphasis on rehabilitation within the criminal justice system over the last quarter of a century, the concept of punishment through corrective measures remained fundamental to sentencing. The court was of the opinion that the correct sentence could be found by pulling all the various aspects of the punitive process into an instinctive synthesis. In what has now become a well-recognised statement of law13 the court said:14
“NOW, ULTIMATELY EVERY SENTENCE IMPOSED REPRESENTS THE SENTENCING JUDGE‘S INSTINCTIVE SYNTHESIS OF ALL THE VARIOUS ASPECTS INVOLVED IN THE PUNITIVE PROCESS. MOREOVER, IN OUR VIEW, IT IS PROFITLESS (AS IT WAS THOUGHT TO BE INKANE‘S CASE) TO ATTEMPT TO ALLOT TO THE VARIOUS CONSIDERATIONS THEIR PROPER PART IN THE ASSESSMENT OF THE PARTICULAR PUNISHMENTS PRESENTLY UNDER EXAMINATION. IT IS SUFFICIENT TO SAY THAT IN OUR OPINION THE LEARNED JUDGE DID NOT IN THE CASES BEFORE HIM GIVE TO THE ASPECTS OTHER THAN REFORMATION THE WEIGHT THAT OUGHT TO HAVE BEEN ALLOTTED TO THEM. OR, IN OTHER WORDS, HE HAS UNDERVALUED THE NATURE AND CIRCUMSTANCES AND GRAVITY OF THE OFFENCES OF ARMED ROBBERY AND ATTEMPTED ARMED ROBBERY WITH THE RESULT THAT WE ARE PERSUADED THAT HIS DISCRETION HAS MISCARRIED. WE ARE AWARE THAT SUCH A CONCLUSION RESTS UPON WHAT IS ESSENTIALLY A SUBJECTIVE JUDGMENT LARGELY INTUITIVELY REACHED BY AN APPELLATE JUDGE AS TO WHAT PUNISHMENT IS APPROPRIATE.“
From this passage it appears that it is not only the sentencing judge who derives the sentence by instinctive synthesis, but also the appellate judge who reaches his or her assessment of the appropriate sentence “largely intuitively“. According to the majority of the court, the assignment of particular value to the various considerations in determining a sentence is likely to give rise to error as it will be difficult, if not impossible, to correctly quantify the individual weight of each relevant factor. The court indicated that they were concerned with the trial judge‘s attempt to “allot“ to the various considerations their part in the assessment of the sentence, or in other words to quantify individual factors, such as a discount for a plea of guilty.15 Emphasising the mathematical nature of the process, or specifying a quantifiable discount for certain factors, has also been the focus of criticism in later judgments.16
In R v Morton17 the Victorian Supreme Court was concerned with the effect of taking into account a plea of guilty pursuant to the Penalties and Sentences Act 1985 (Vic), s 4.18 Although the legislation required the sentencer to state that a reduction in sentence had been made because of a plea of guilty, the court found it was inappropriate to nominate the precise amount of the reduction:19
“SUBSECTION (2) OF S 4 REQUIRES A COURT TO STATE THE FACT THAT IT HAS REDUCED THE SENTENCE THAT IT WOULD OTHERWISE HAVE PASSED. THE REQUIREMENT IS TO STATE THE FACT NOT THE AMOUNT OF THE REDUCTION AND ALTHOUGH THERE IS NOTHING TO PROHIBIT A COURT‘S STATING THE AMOUNT OF THE REDUCTION, IT WILL GENERALLY BE IMPOSSIBLE OR MISLEADING TO DO SO UNLESS A SIMILAR QUANTIFICATION IS PLACED UPON ALL THE OTHER ELEMENTS OR CONSIDERATIONS THAT HAVE LED TO THE CALCULATION OF THE SENTENCE ACTUALLY IMPOSED. INDEED IT WOULD GENERALLY BE HIGHLY UNDESIRABLE TO DO SO.“
The specification of the amount of a discount for a guilty plea has become common practice. For example the guideline judgment in R v Thomson20 specifies a discount of between 15% and 25% ordinarily to be given for a guilty plea. In the High Court case of Cameron v The Queen21 (an appeal against sentence from Western Australia) it was open to the court to criticise this practice but it did not do so.
The strongest statement of law regarding the error of the two-stage approach was expressed in R v Young, Dickenson and West.22 In this case the judge at first instance imposed sentences according to a methodology involving a two-stage approach. This involved determining the proportionate sentence, having regard to the objective circumstances of the crime, and then determining what he considered the appropriate sentence, by taking into account those factors personal to the accused. The validity of this method of sentencing was questioned on appeal.
The Victorian Court of Criminal Appeal affirmed the correctness of the instinctive synthesis approach articulated in R v Williscroft.23 In doing so, the court not only rejected the two-tiered approach as being wrong in principle, but held that the adoption of such a process was itself to be regarded as a sentencing error. According to the court the sentencing task cannot be constrained within a rigid formula. The adoption of a two-stage approach was considered to be a departure from long-established practice in Victoria and likely to lead to error and possible injustice. In adopting what appears to be a somewhat broader definition of two-stage sentencing the court said:24
“WHAT FACTS AND CIRCUMSTANCES HIS HONOUR TOOK INTO ACCOUNT IN ARRIVING AT THOSE SENTENCES IS NOT ENTIRELY CLEAR BUT IT WOULD SEEM THAT, SPEAKING GENERALLY, HE EXCLUDED WHAT MIGHT BE DESCRIBED AS FACTORS PERSONAL TO THE PARTICULAR OFFENDER UNDER CONSIDERATION, SUCH AS PREVIOUS CONVICTIONS. HIS HONOUR DOES NOT APPEAR TO HAVE BEEN ENTIRELY CONSISTENT IN THIS PROCESS. IT IS NOT CLEAR WHETHER HIS HONOUR THOUGHT THAT IN VIEW OF THE PASSAGES IN THE AUTHORITIES WHICH HE QUOTED HE WAS OBLIGED TO PROCEED IN THE WAY THAT HE DID OR WHETHER HE DID IT MERELY AS A MATTER OF PREFERENCE TO PUT THE MATTER BEYOND DOUBT, HOWEVER, WE THINK WE SHOULD SAY QUITE UNEQUIVOCALLY, THAT AS WE UNDERSTAND THE HIGH COURT CASES, THERE IS NOTHING IN THEM TO SUGGEST THAT A SENTENCING JUDGE IS REQUIRED TO APPROACH THE TASK IN THE WAY THE LEARNED JUDGE DID IN THESE CASES. INDEED, MR FLANAGAN CONCEDED WITHOUT ANY QUALIFICATION THAT THE HIGH COURT IMPOSED NO SUCH RESTRAINING METHOD UPON SENTENCING JUDGES WHAT ARISES FOR DECISION, HOWEVER, IS WHETHER IT IS OPEN TO A SENTENCING JUDGE TO PROCEED IN THE WAY THE LEARNED JUDGE PROCEEDED IN THESE CASES.“
Here, the court appears to refer to a two-stage process whereby a clear distinction is made between the objective and subjective factors to be considered, in order to determine what may be regarded as an “otherwise appropriate“ or “proportionate“ sentence. This has also been the subject of discussion in later judgments.25
The court‘s detailed analysis of the sentencing reasons was based on a report provided by the trial judge. Having regard to the High Court‘s decision in Veen v The Queen (No 2)26 the trial judge had sought to bear in mind the importance of the concept of proportionality when sentencing. However, the Court of Criminal Appeal disagreed with this process of reasoning. Instead, they were of the opinion that in determining whether a sentence is proportionate to the offence it remains a matter of discretion. According to the court it is wrong to fix a sentence considered proportionate to the crime by taking into account only some of the relevant factors:27
“We see no justification for this course whatever and we think that its adoption would be likely to lead either to the imposition of inadequate sentences or to injustice. It would certainly lead to an increase in appeals against sentence. What is a sentence proportionate to an offence is a matter of discretion and there must in most cases be a range of sentences open to a sentencing judge which are proportionate to the offence. There cannot be said to be a sentence which is the proportionate sentence, as the learned judge in his report in these cases said that he had purported to fix. Thus to attempt to fix a proportionate sentence before fixing the sentence to be imposed will only multiply the possibilities of error. Upon what facts is the proportionate sentence to be fixed?“
The Victorian Court of Criminal Appeal argued that the instinctive synthesis approach was widely accepted in Australia and that there was no authority to warrant the adoption of a sentencing methodology involving a sequential process of reasoning:28
“It is sufficient for us to observe that we can find no warrant in authority or justification or advantage from a practical point of view in the adoption of an artificial process for arriving at an appropriate sentence or any process which unnecessarily limits further the discretion of a sentencing judge. We think that the adoption of such a process is calculated to lead to error and injustice. Until Parliament or the High Court indicates to the contrary we are clearly of the opinion that artificial processes or methods should not be adopted in Victoria.“29
The court quickly dismissed a suggestion that there was significant English case law to support the application of a two-stage approach to sentencing, finding that the problems of sentencing in England were different to those in Victoria.30 However, at least one commentator has suggested that there was very little by way of authority to support this view, or the court‘s attack on the course adopted by the trial judge.31 Indeed, while the court cogently pointed out that there was no authority requiring a judicial officer to adopt a two-stage approach to the sentencing task, this is not the same as finding binding authority that it is impermissible to engage in this line of reasoning. The practice has been accepted and commonplace for many years in NSW, and to suggest that it is calculated to lead to error is to challenge the validity of many sentencing decisions handed down in the past.
We will analyse the recent decision of the NSW Court of Criminal Appeal in R v Whyte,32 which sets out the law in NSW, below. At this point it is sufficient to provide a single example of the long accepted practice in that State. In R v Cuthbert,33 itself considered in Williscroft but not in reference to this point, there is exemplified a typical instance of the two-tiered approach. Chief Justice Herron, with whom the other members of the court agreed, said:34
“THE ASCERTAINMENT OF THE OBJECTIVE FACTS ALWAYS CONSTITUTES THE FIRST INQUIRY IN SENTENCING PROCEDURES, FOR THIS FORMS THE FIRST INQUIRY ON WHICH TO BASE THE FINAL CONCLUSION.“
Herron CJ also said:35
“I AM OF THE OPINION THAT THE SENTENCE APPEARS OUT OF REASONABLE PROPORTION TO THE CRIME, HAVING REGARD TO THE OBJECTIVE FACTS PROVED AT THE TRIAL. I AM NOT UNMINDFUL OF THE WEIGHT OF EVIDENCE AS TO GOOD CHARACTER AND ANTECEDENTS OF THE RESPONDENT. THESE SUBJECTIVE ELEMENTS I HAVE WEIGHED AGAINST THE KNOWN FACTS AND HAVE IN MY ASSESSMENT OF THE PENALTY TAKEN THEM FULLY INTO CONSIDERATION, FOR BY REASON OF THESE FACTORS MY ULTIMATE ASSESSMENT IS LESS THAN IT WOULD OTHERWISE HAVE BEEN.“
It is curious that little has been said in support of the two-tiered approach and that the instinctive synthesis approach is continuing to gain ascendancy (particularly since it has gained adherents in the High Court36). Indeed, instinctive synthesis has been vigorously defended by the Victorian Supreme Court which has continued to apply it, despite legislative amendments which specifically state that a discount needs to be given for a plea of guilty. The court has accepted that proportionality as discussed in Veen should be the paramount consideration, although it has taken the view that the application of this principle can be incorporated within the instinctive synthesis of all the elements.37
Commentators have suggested that the reluctance of the Victorian courts to subscribe to any particular sentencing methodology stems from a concern that it will inevitably fetter judicial discretion. However, does a reference to instinctive or intuitive synthesis provide the judicial officer with any helpful guidance on how to approach the sentencing task? Is this really the best terminology to adopt? It is respectfully suggested that neither term may be appropriate. Rather, what is regarded as appropriate is that all relevant elements are taken into account when sentencing within the true context of the offence. That sentencing involves a synthesis of all the relevant elements involved in the punitive process is beyond dispute; the issue is whether a sequential approach involving a staged process of reasoning is likely to lead to error or whether the mysterious operation of the judicial officer‘s instinct or intuition bearing on all the factors at once is the only proper method for determining a just sentence.
4. Division in the High Court
4.1 Disapproval of two-stage sentencing
Debate as to the most appropriate methodology to employ in sentencing has been renewed in the High Court with increased vigour, with the issue being raised in a number of recent judgments.38 McHugh J first addressed the issue in his dissenting judgment in AB v The Queen.39 The court examined whether any discount in sentence should be granted to the appellant for voluntarily confessing to a number of sexual offences. McHugh J considered that a claim for a discount could only have validity if sentencing was a process that involved a notional sentence which is then increased or reduced arithmetically according to individual factors relevant to the offence and the accused person. McHugh J found that such a two-tiered approach to sentencing was erroneous and in conflict with the discretionary nature of the sentencing process. According to McHugh J such an approach “ attempts to give the process of sentencing a degree of exactness which the subject matter can rarely bear“.40 Rather he favoured the instinctive synthesis approach advanced in R v Williscroft.41
His Honour‘s understanding of the two-tiered approach appears to encompass a process of reasoning whereby the sentence is objectively determined by looking at the offence and then discounted or increased based on the personal circumstances of the offender. He finds this process unsuitable, as by formulating an objective sentence first, too much emphasis may be placed on the objective gravity of the offence, creating a top-heavy approach to the sentencing task:42
“If the judge first formulates an objectively determined sentence, he or she has only relied on part of the relevant circumstances and has effectively allowed that part of the circumstances to dominate the sentencing process. Worse still, there is a danger that the objectively determined sentence will be formulated by reference to abstractions derived from the circumstances, rather than by reference to the concrete facts of the case. Instead of sentencing this embezzler, with this history, for taking this amount in these circumstances, consciously or unconsciously, the judge may determine the objective sentence by what is perceived to be appropriate for an embezzler who has taken a large (or small) amount of money in breach of trust. Abstraction replaces the convicted person‘s circumstances in determining the appropriate sentence.“
There is a certain amount of force in this proposition. Divorcing the objective and subjective circumstances of the offence and offender can be a difficult task and does not necessarily represent an accurate picture of what has actually occurred. The idea of context is most important. For example, in Ryan v The Queen,43 the appellant was convicted of a number of sexual offences against children in his care. The fact that the appellant was a priest provided him with an opportunity to commit these offences and involved a specific breach of trust. On appeal to the High Court the question was whether the appellant‘s position as a priest could operate in mitigation of sentence, on the basis that he had performed good deeds in fulfilment of his priestly duties and was otherwise of good character. The High Court held that the appellant was not entitled to significant leniency on this basis.44Endorsing the instinctive synthesis approach to sentencing, Hayne J found it would be difficult to identify whether “character“ could be viewed as an objective or subjective element of the offence. The appellant‘s work as a priest and the commission of the offences were inextricably bound together:45
“AS I HAVE POINTED OUT, THE ‘CHARACTER‘ AND REPUTATION OF AN OFFENDER WILL ORDINARILY HAVE MANY DISPARATE ELEMENTS. NONE OF THOSE ELEMENTS CAN BE SEEN AS INEVITABLY AND INVARIABLY TENDING IN AGGRAVATION OR MITIGATION OF SENTENCE .BUT THE TASK OF THE SENTENCER REQUIRES CONSIDERATION OF WHAT THE OFFENDER DID, AND WHY, AS WELL AS WHO THE OFFENDER IS, AND REQUIRES CONSIDERATION OF THE PARTICULAR PURPOSES FOR WHICH SENTENCE IS TO BE IMPOSED.“
Indeed, the division between the stated objective and subjective factors may not always be so apparent, with some factors falling into both stages of the enquiry. As Chris Corns states:46
“THE TERM ‘OBJECTIVE‘ IS ITSELF DIFFICULT TO DEFINE BUT IN ESSENCE, REFERS TO THE OVERT, CLEARLY DEMONSTRABLE CHARACTERISTICS OF THE CRIME (EG, THE RELATIVE AGE OF THE OFFENDER AND THE VICTIM, THE VALUE OF THE PROPERTY, OR THE DEGREE OF PHYSICAL VIOLENCE USED). STAGE TWO OF THE METHODOLOGY CONSISTS OF TAKING INTO ACCOUNT MATTERS PERSONAL TO THE OFFENDER AND OTHER SUBJECTIVE FACTORS EG ANTECEDENTS, MOTIVE AND SO ON.“
There will always be cases where a particular factor or consideration is difficult to categorise as subjective or objective. Individual sentencers may often take opposing views. However, this is not a fatal flaw of two-tiered sentencing, for, just as it is conceded that sentencing is not a purely mathematical exercise, there need not be absolute precision in categorisation. As long as each relevant factor is taken into account and given its proper weight, the resultant sentence should not be rendered inappropriate because it was treated as an objective rather than a subjective circumstance, or vice versa.
There is also a concern that in looking at the objective and then subjective factors, some aspects may be counted twice in mitigation. In addition, factors personal to the offender may operate to mitigate a sentence, but it may be virtually impossible to evaluate their precise weight in the overall sentence. According to McHugh J, it is not a case of adding and subtracting elements from an objectively determined sentence, but a need to “balance the various factors and make a value judgment as to what is the appropriate sentence in all the circumstances of the case.“47 (emphasis added) In order to make sure that the sentence is consistent, however, McHugh J indicates that some level of comparison may be necessary when determining the final sentence. However, this should be at the end of the process, rather than at the beginning.48
In their joint judgment in Wong v The Queen; Leung v The Queen,49 Gaudron, Gummow and Hayne JJ, in the course of deliberating on the validity of guideline sentencing, added their support for the instinctive synthesis approach in determining sentence and expressed their concerns with the two-stage approach. The joint judgment found that the NSW Court of Criminal Appeal had neither jurisdiction nor power to prescribe what sentences should be passed in future matters for federal offences. Furthermore, they found that the formulation of the guideline itself, which dealt with the appropriate sentence to pass on an offender knowingly concerned in the importation of drugs, was fundamentally flawed as it focused on the result, rather than the sentencing principle, and elevated the weight of drug as the crucial factor to take into account when sentencing.50
This flaw could not be remedied by mentioning that other factors should be taken into account. Gaudron, Gummow and Hayne JJ indicated that the sentencing task should involve weighing all relevant factors to arrive at a single result by the process of instinctive synthesis. Their Honours found that the weight of authority in Australia is clearly against adopting a two-stage process of sentencing, as this process is not only apt to give rise to error, but departs from principle:51
“THE REASONS OF THE COURT OF CRIMINAL APPEAL SUGGEST A MATHEMATICAL APPROACH TO SENTENCING IN WHICH THERE ARE INCREMENTS TO, OR DECREMENTS FROM, A PREDETERMINED RANGE OF SENTENCES. THAT KIND OF APPROACH, USUALLY REFERRED TO AS A ‘TWO-STAGE APPROACH‘ TO SENTENCING, NOT ONLY IS APT TO GIVE RISE TO ERROR, IT IS AN APPROACH THAT DEPARTS FROM PRINCIPLE. IT SHOULD NOT BE ADOPTED.“
To single out some features of a case and attribute specific numerical or proportionate values to them, said their Honours,52 “distorts the already difficult balancing exercise that a judge has to perform“. The joint judgment criticised the two-stage approach for its inability to accommodate conflicting and contradictory elements, which may bear upon sentencing an offender. In justifying their position their Honours said:53
“ATTRIBUTING A PARTICULAR WEIGHT TO SOME FACTORS, WHILE LEAVING THE SIGNIFICANCE OF ALL OTHER FACTORS SUBSTANTIALLY UNALTERED, MAY BE QUITE WRONG. WE SAY ‘MAY BE‘ QUITE WRONG BECAUSE THE TASK OF THE SENTENCER IS TO TAKE ACCOUNT OF ALL THE RELEVANT FACTORS AND TO ARRIVE AT A SINGLE RESULT WHICH TAKES DUE ACCOUNT OF THEM ALL. THAT IS WHAT IS MEANT BY SAYING THAT THE TASK IS TO ARRIVE AT AN ‘INSTINCTIVE SYNTHESIS‘ …THIS EXPRESSION IS USED, NOT AS MIGHT BE SUPPOSED, TO CLOAK THE TASK OF THE SENTENCER IN SOME MYSTERY, BUT TO MAKE PLAIN THAT THE SENTENCER IS CALLED ON TO REACH A SINGLE SENTENCE WHICH, IN THE CASE OF AN OFFENCE LIKE THE ONE NOW UNDER DISCUSSION, BALANCES MANY DIFFERENT AND CONFLICTING FEATURES.“
In their remarks, the joint judgment also appears to disapprove of the practice of identifying a specific reduction for a plea of guilty.
4.2 Need for transparency
Not all members of the High Court, however, appear convinced of the merits of the instinctive synthesis approach, precisely because the reasons for sentence remain unknown. Kirby J has identified a number of key problems with reverting to the instinctive synthesis approach on the basis that the decision-making process should remain accountable and transparent. According to Kirby J, disclosure of how a particular sentence has been formulated and reasons for sentence should not be hidden by judicial reference to instinct or intuition, which does little to provide any useful insight or engender public confidence in the task of sentencing:54
“IT WOULD BE A RETROGRADE STEP TO SUBSUME THE ADJUSTMENTS WHICH THE LAW REQUIRES TO BE TAKEN INTO ACCOUNT IN SENTENCING BY A ‘RETURN TO UNEXPLAINED JUDICIAL INTUITION’. GREATER TRANSPARENCY AND HONESTY ARE THE HALLMARKS OF MODERN PUBLIC ADMINISTRATION AND THE ADMINISTRATION OF JUSTICE. IN SENTENCING, WE SHOULD NOT TURN OUR BACKS ON THESE ADVANCES.“
As Kirby J points out, judges often do make adjustments at a prima facie stage in the sentencing task and these should be explicitly expressed in the reasons for sentence. Legislation in NSW and other Australian States and Territories specifically demands such adjustments in certain cases. For example, when sentencing an offender a judge must take into account the fact that a plea of guilty has been made under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and, accordingly, may pass a lesser penalty than would otherwise have been imposed.55 As Kirby J asks, how can the concept of “discount“ be thought of at all, unless a number or integer has already been conceived from which the sentencer can “discount from“?
His Honour expanded on these issues in Cameron v The Queen,56 where he highlighted the importance of transparency in providing a discount for a plea of guilty. Without identification of the discount granted it will be difficult for an offender to see whether the law has been applied consistently and whether there is any legitimate ground for appeal because the accused has received a harsher sentence than others. Also, it will become difficult for defence counsel to instruct their clients in any meaningful way on the full benefits to be obtained by an early plea:57
“WITH RESPECT, I REMAIN OF THE OPINION THAT WHERE A ‘DISCOUNT‘ FOR A PARTICULAR CONSIDERATION RELEVANT TO SENTENCING IS APPROPRIATE, IT IS DESIRABLE THAT THE FACT AND MEASURE OF THE DISCOUNT SHOULD BE EXPRESSLY IDENTIFIED. UNLESS THIS HAPPENS, THERE WILL BE A DANGER THAT THE LACK OF TRANSPARENCY, EFFECTIVELY CONCEALED BY JUDICIAL ‘INSTINCT‘, WILL RENDER IT IMPOSSIBLE TO KNOW WHETHER PROPER SENTENCING PRINCIPLES HAVE BEEN APPLIED. MOREOVER, IF THE PRISONER AND THE PRISONER‘S LEGAL ADVISERS DO NOT KNOW THE MEASURE OF THE DISCOUNT, IT CANNOT BE EXPECTED THAT PLEAS OF GUILTY WILL BE ENCOURAGED IN PROPER CASES, ALTHOUGH THIS IS IN THE PUBLIC INTEREST. KNOWING THAT SUCH A DISCOUNT WILL BE MADE REPRESENTS ONE PURPOSE OF SUCH DISCOUNTS. UNLESS IT IS KNOWN IT MAY NOT BE POSSIBLE FOR AN APPELLATE COURT TO COMPARE THE SENTENCE IMPOSED WITH OTHER SENTENCES FOR LIKE OFFENCE OR TO CHECK DISPUTED QUESTIONS OF PARITY.“58
Not surprisingly other commentators have also expressed their disquiet with the use of the phrase instinctive synthesis. In a recent article, Leader-Elliot expressed his concern about the High Court‘s adoption of the instinctive synthesis approach, finding that: “It would be hard to devise a less attractive banner to rally support for a defence of principled judicial discretion in sentencing.“59 The intuitive or instinctive synthesis approach to sentencing has been vehemently attacked by Bargaric.60 He claims that the rhetoric of intuitive synthesis masks the reasons for sentence and fails to point towards the underlying theory of sentencing preferred by the court, such as community protection, retribution and rehabilitation. According to Bargaric, the inherent problem of relying on intuition is that intuitions may invariably differ:61
“THIS APPROACH ENABLES, IF NOT ENCOURAGES, JUDGES TO DETERMINE THE SENTENCE ON THE BASIS OF WHAT APPEARS TO THEM TO BE INTUITIVELY CORRECT . THE TROUBLE WITH INTUITIONS IS THAT THEY ALL DIFFER, AND THERE IS NO BASIS TO TEST THE ACCURACY OF INTUITIVE ‘TRUTHS’: PRINCIPLES AND EXPEDIENCE BECOME INDISTINGUISHABLE. A PRACTICE WHICH RELIES ON INTUITIVE SENTIMENTS LEAVES ITSELF OPEN FOR BIAS, IGNORANCE AND PREJUDICE AS THE GUIDING LIGHTS.“
Intuition may refer to implicit knowledge or a learned emotional response. This form of reasoning is so entrenched that it operates subconsciously. It is this rationale that must be brought to the level of the conscious and articulated. According to Fox and Freiberg, the use of the words “instinctive synthesis” prevent the accused and the community from understanding the reasons for decision and is aimed at reducing the opportunity of appeal:62
“THE OPAQUENESS PRODUCED BY THIS INSTINCTIVE SYNTHESIS METHOD OF ARRIVING AT A SENTENCE IS INTENDED TO DETER THE BRINGING OF SENTENCING APPEALS BY DEFENDANTS AIMING TO ATTACK THE PENALTY BY UNRAVELLING THE INDIVIDUAL THREADS OF REASONING THAT SUPPORT IT. SINCE SENTENCING IS A MATTER OF DISCRETION, THE JUSTICE OF THE CASE IN MOST INSTANCES MAY BE SATISFIED BY A NUMBER OF DIFFERING SENTENCING FORMULATIONS.”
4.3 Judicial discretion
According to Kirby J it is “desirable and certainly permissible“63 at common law for a judge to identify the measure of the discount granted for a plea of guilty. A key aspect to this statement is the use of the word permissible, for to prohibit a particular line of reasoning must itself limit discretion. Some judges may prefer to look at factors in a certain order or sequence. Provided they take into account all the relevant factors and determine the appropriate weight to give to those factors, based on experience and the circumstances of the case, then it should not matter in what order these factors are considered. As the trial judge in Young, Dickenson and Westobserved, such an approach may be extremely helpful in allowing a judge to identify all the relevant factors and ensure they have been given due weight in the context of the offence:64
“WHEN I CONSIDERED IT APPROPRIATE I HAVE STATED WHAT I CONSIDERED THE PROPORTIONATE SENTENCE TO BE, AND GONE ON TO DECIDE WHAT WAS THE APPROPRIATE SENTENCE TO IMPOSE AND THAT IS THE SENTENCE I HAVE PASSED. I HAVE FOUND THAT APPROACH HELPFUL IN THAT IT REQUIRES THE SENTENCER TO GO ABOUT THE SENTENCING TASK IN A MORE ORDERLY WAY AND HELPS TO ENSURE THAT ALL RELEVANT MATTERS ARE CONSIDERED. MOST IMPORTANTLY THE PROPER APPLICATION OF THE PRINCIPLE ENSURES THAT THE PRISONER IS NOT TREATED UNJUSTLY.“
4.4 Where to now for the High Court?
As pointed out by Spigelman CJ in R v Sharma,65 the judgment of McHugh J in AB v The Queen cannot simply be grafted onto the joint judgment in Wong v The Queen; Leung v The Queen to constitute binding precedent. The question arises, however, as to whether the issue will be tested before the High Court as a specific ground of appeal. In both Wong66 and Cameron67 members of the High Court sought to reserve the question of two-stage sentencing for a more appropriate case, where the issue was either specifically raised by a party or essential to answer the appeal.
To date, Callinan J has remained silent on the issue. However, with the High Court divided on this issue, it is important to note the views expressed by Gleeson CJ. In his dissenting judgment in Wong, the Chief Justice quoted from the Canadian guideline judgment of R v McDonnell,68 which outlined the established practice of determining a starting point for a sentence by looking at the objective nature of the offence, followed by the subjective factors of the offender:69
“THE STARTING-POINT APPROACH WAS DEVELOPED AS A WAY OF INCORPORATING INTO THE SENTENCING PROCESS THE DUAL PERSPECTIVES OF THE SERIOUSNESS OF THE OFFENCE AND THE NEED TO CONSIDER THE INDIVIDUAL CIRCUMSTANCES OF THE OFFENDER. IT REPRESENTS A RESTATEMENT OF THE LONG-STANDING PRACTICE OF SENTENCING JUDGES OF BEGINNING BY CONSIDERING THE RANGE OF SENTENCE THAT HAS BEEN POSED FOR SIMILAR CRIMINAL ACTS FOLLOWED BY CONSIDERATION OF FACTORS PECULIAR TO THE CASE AND THE OFFENDER BEFORE THEM.“
According to Gleeson CJ, this statement does not have to be taken as referring to a strictly sequential process of reasoning as judges are generally capable of entertaining two or more ideas at the one time. His Honour does not expressly disagree with this process of reasoning, but sees it simply as recognition of the relevance of comparable sentences in determining whether a particular sentence is excessive or lenient. Unfortunately, no more can be gleaned from this statement. It has been suggested that if the two-stage approach is addressed again by a full bench, it may well be rejected. Until then, however, the NSW Court of Criminal Appeal will have to forge ahead with its own view of what the law is in NSW in light of existing practice and principle. At the time of writing, the most definitive statement of the position in NSW is contained in the recent decision of R v Whyte,70 but before examining that case it may be useful to review earlier case law in NSW.
5. The position in NSW
As noted earlier, the practice of employing a two stage approach was well accepted in NSW until comparatively recent times. Although authority in NSW appears to have fluctuated, following the High Court decision in AB v The Queen there has been increasing support for the instinctive synthesis approach. However, a number of exceptions to the application of instinctive synthesis have been recognised so that even this approach is not always followed in practice.71 Within the case law the act of quantifying a discount for a particular factor, such as a plea of guilty, has attracted the most attention and has been dealt with differently depending on the constitution of the court. Fox and Freiberg suggest that the issue of a discount based on a plea of guilty poses particular problems for judges committed to the instinctive synthesis approach, as the underlying public policy of the legislation may well be frustrated if the measure of the discount is not provided.72
In R v Gallagher,73 Gleeson CJ did not appear to favour the views expressed in R v Young.74 Although he recognised that sentencing is not a rigid mathematical exercise, he found that a sentencing judge was entitled to quantify a discrete discount for assistance to authorities, provided it is possible to do so and all the relevant considerations are taken into account. His Honour found that a judge who extends leniency on the basis of an offender’s assistance to authorities, should say that this is being done and why. However, he cautioned against adopting a mathematical approach as there will often be overlapping elements difficult to separate:75
“I AM OF THE VIEW THAT, SUBJECT ALWAYS TO ANY RELEVANT STATUTORY REQUIREMENT, A SENTENCING JUDGE IS ENTITLED, BUT NOT OBLIGED, TO GIVE A DISCRETE QUANTIFIABLE DISCOUNT ON THE GROUND OF ASSISTANCE TO AUTHORITIES, PROVIDED IT IS OTHERWISE POSSIBLE AND APPROPRIATE TO DO SO EVEN IN CASES WHERE, AS A MATTER OF LEGITIMATE DISCRETIONARY DECISION, A JUDGE DECIDES TO GIVE A SPECIFIED DISCOUNT IT IS ESSENTIAL TO BEAR IN MIND THAT WHAT IS INVOLVED IS NOT A RIGID OR MATHEMATICAL EXERCISE, TO BE GOVERNED BY ‘TARIFFS‘ DERIVED FROM OTHER AND DIFFERENT CASES BUT, RATHER, ONE OF A NUMBER OF MATTERS TO BE TAKEN INTO ACCOUNT IN A DISCRETIONARY EXERCISE THAT MUST DISPLAY DUE SENSITIVITY TOWARDS ALL THE CONSIDERATIONS OF POLICY WHICH GOVERN SENTENCING AS AN ASPECT OF THE ADMINISTRATION OF JUSTICE.“76
In contrast, Hunt CJ at CL stated on a number of occasions that sentencing is largely an intuitive process. In R v Beavan,77 his Honour (Badgery-Parker and Abadee JJ agreeing) found that quantifying the discount for a plea of guilty was both unnecessary and unwise. He found that where more than intuition is involved, the actual mathematics applied need not be exposed. According to Hunt CJ at CL the art of sentencing is such that it is not possible to describe the process by which the ultimate sentence is determined:78
“SENTENCING IS LARGELY AN INTUITIVE PROCESS. IT DOES NOT LEND ITSELF TO THE APPLICATION OF RIGID FORMULAS. THE INFLUENCES OF THE DIFFERENT FACTORS TO BE TAKEN INTO ACCOUNT IN EACH CASE ARE INFINITELY VARIOUS. IN MANY CASES, THE DIFFERENT FACTORS OVERLAP, AND IT WOULD BE ALMOST IMPOSSIBLE FOR A JUDGE TO IDENTIFY THE PRECISE INFLUENCE WHICH ANY ONE FACTOR HAS HAD UPON THE SENTENCE ULTIMATELY IMPOSED. DISCOUNTS FOR ASSISTANCE GIVEN TO AUTHORITIES, WHERE THEY CAN BE IDENTIFIED, MAY FALL WITHIN A SPECIAL CATEGORY… BUT, THAT CATEGORY TO ONE SIDE, I REGARD IT AS BOTH UNNECESSARY AND OFTEN UNWISE FOR A SENTENCING JUDGE TO IDENTIFY A SENTENCE WHICH HE OR SHE REGARDS AS APPROPRIATE TO THE PARTICULAR CASE WITHOUT REFERENCE TO ONE FACTOR AND THEN TO IDENTIFY THE DISCOUNT WHICH IS THOUGHT TO BE APPROPRIATE WITH REGARD TO THAT PARTICULAR FACTOR.“79
In R v Winchester80 Hunt CJ at CL again found that the provision of a discount for a plea of guilty does not require a judge to precisely quantify the percentage which has been allowed. In fact it is better that such a discount is not identified.81 Furthermore, in an update on the developments of criminal law, his Honour expressed his concern about approaching the sentencing task from models other than instinctive synthesis:82
“A LOT OF HEARTBURN WILL ALSO BE SAVED IN THE COURT OF CRIMINAL APPEAL IF THE SENTENCING JUDGE RECOGNISES THAT SENTENCING IS LARGELY AN INTUITIVE PROCESS. THAT PROCESS DOES NOT LEND ITSELF TO THE APPLICATION OF RIGID FORMULAS. THE INFLUENCES OF THE DIFFERENT FACTORS TO BE TAKEN INTO ACCOUNT IN EACH CASE ARE INFINITELY VARIOUS“
The issue of two-tiered sentencing was also discussed in R v Lawson, Wu and Thapa.83 James J conceded that the two-tiered process, whereby a judge selects a provisional figure considered appropriate to the objective facts of the offence and then makes a deduction from that based on the personal circumstances of the offender, was not uncommon in relation to sentencing Commonwealth drug offenders.
Since the decision in Wong v The Queen; Leung v The Queen,84 the NSW Court of Criminal Appeal has grappled with the concept of two-tiered sentencing, which has often been adopted in practice in NSW. The joint judgment in Wong quoted a long line of authority in NSW in support of the instinctive synthesis approach.85 This was cited again in Sharma when Spigelman CJ reiterated what he had earlier said in R v Thomson:86
“THE INSTINCTIVE SYNTHESIS APPROACH IS THE CORRECT GENERAL APPROACH TO SENTENCING. THIS DOES NOT, HOWEVER, NECESSARILY MEAN THAT THERE IS NO ELEMENT WHICH CAN BE TAKEN OUT AND TREATED SEPARATELY, ALTHOUGH SUCH ELEMENTS OUGHT TO BE FEW IN NUMBER AND NARROWLY CONFINED. AS LONG AS THEY ARE SUCH, THEIR SEPARATE TREATMENT WILL NOT COMPROMISE THE INTUITIVE OR INSTINCTIVE CHARACTER OF THE SENTENCING PROCESS CONSIDERED AS A WHOLE.“87
The Chief Justice took the view that two-tiered sentencing relates to a process of reasoning whereby the sentencing officer reduces an otherwise appropriate sentence, by reference to some particular factor. Based on the line of authority quoted by Spigelman CJ there appears to be a strong basis for the view that instinctive synthesis is generally accepted. However, as suggested earlier, this is subject to certain exceptions. Moreover, the court appears unwilling to find error where the two-stage approach has been employed, and the objective and subjective factors of the offence are considered at separate stages in the sentencing process.
In R v MacDonell,88 Wood CJ at CL (Sully and Dowd JJ agreeing) found that the sentencing judge had adopted a two-stage process of reasoning which was subject to extensive criticism in Wong. His Honour found that no error had occurred in adopting this approach:89
“I WOULD NOT FIND ERROR, ON HIS HONOUR‘S PART, IN FOLLOWING THAT APPROACH AND IN GIVING CONSIDERATION TO AN APPROPRIATE STARTING POINT, AGAINST WHICH THE FACTORS OF ASSISTANCE AND OF THE PLEA COULD BE CONSIDERED. UNLESS THEY ARE GIVEN SEPARATE CONSIDERATION, WHETHER SPECIFICALLY QUANTIFIED IN THE REASONS OR NOT, IT IS DIFFICULT TO UNDERSTAND HOW THE ‘INSTINCTIVE SYNTHESIS‘ APPROACH CAN BE APPLIED, OR HOW IT CAN RESULT IN A ‘SINGLE APPROPRIATE SENTENCE‘. HOWEVER, EVEN IF THAT APPROACH IS TAKEN, WITH ITS RECOGNISED ADVANTAGE OF ENSURING A PROPER BALANCE OF THE OBJECTIVE AND SUBJECTIVE FACTORS, WITHOUT ANY OVERLAP IN DISCOUNTS FOR INDIVIDUAL FACTORS, WHICH MIGHT SKEW THE OUTCOME, I AM CONFIRMED IN MY VIEW THAT THE SENTENCES HERE IMPOSED WERE SO MANIFESTLY LENIENT AS TO REQUIRE APPELLATE CORRECTION.“
5.1 R v Whyte
In R v Whyte,90 Spigelman CJ, with whom the four other members of the Court of Criminal Appeal agreed, reviewed what had been said about instinctive synthesis in the joint judgment of the High Court in Wong and began by observing that sentences must be individualised and this requires the exercise of a broad discretion “to ensure that all of the wide variations of circumstances of the offence and the offender are taken into account“.
The Chief Justice agreed that sentencing involved “the final balance of a wide variety of incommensurable and often incompatible factors” and this did not involve a mathematical exercise. Then, after observing that neither Gleeson CJ nor Kirby J in Wong had criticised two-tiered sentencing nor joined the joint judgment in advocating an instinctive synthesis approach, Spigelman CJ turned his mind to leading cases on the principle of proportionality to illustrate the long tradition of two-tiered sentencing. The Chief Justice said:91
“IN THIS STATE THE PRINCIPLE OF PROPORTIONALITY IDENTIFIED IN VEEN V THE QUEEN HAS LONG BEEN HELD TO PERMIT, INDEED TO REQUIRE, THAT A SENTENCE SHOULD BE PROPORTIONATE TO THE OBJECTIVE GRAVITY OF THE OFFENCE. THIS NECESSARILY REQUIRES A SENTENCING JUDGE TO CONSIDER, AT SOME STAGE IN THE REASONING PROCESS, THE SENTENCE THAT IS APPROPRIATE FOR THE PARTICULAR CIRCUMSTANCES OF THE CRIME WITHOUT REFERENCE TO THE SUBJECTIVE CASE OF THE PARTICULAR OFFENDER.“
Spigelman CJ then referred to the joint judgment from Hoare v The Queen92 where the principle was again endorsed that the upper limit of an appropriate or proportionate term of imprisonment is to be determined by reference to the objective offence. This, reasoned the Chief Justice, necessarily involves separate consideration of the sentence appropriate to the objective circumstances of the offence.93 Next, after pointing out that as well as setting an upper limit, the principle of proportionality also applied to create a lower limit,94 Spigelman CJ quoted the following passage from the joint judgment of Gleeson CJ, Lee CJ at CL and Hunt J in R v Dodd:95
“THERE OUGHT TO BE A REASONABLE PROPORTIONALITY BETWEEN A SENTENCE AND THE CIRCUMSTANCES OF THE CRIME, AND WE CONSIDER THAT IT IS ALWAYS IMPORTANT IN SEEKING TO DETERMINE THE SENTENCE APPROPRIATE TO A PARTICULAR CRIME TO HAVE REGARD TO THE GRAVITY OF THE OFFENCE VIEWED OBJECTIVELY, FOR WITHOUT THIS ASSESSMENT THE OTHER FACTORS REQUIRING CONSIDERATION IN ORDER TO ARRIVE AT THE PROPER SENTENCE TO BE IMPOSED CANNOT PROPERLY BE GIVEN THEIR PLACE. EACH CRIME, AS VEEN (NO 2) STRESSES, HAS ITS OWN OBJECTIVE GRAVITY MERITING AT THE MOST A SENTENCE PROPORTIONATE TO THAT GRAVITY.“96
To emphasise this principle, the Chief Justice cited a further dozen authorities that have followed this approach and finally concluded by saying:97
“IF THIS REPRESENTS A ‘TWO-STAGE APPROACH‘ INCONSISTENT WITH THE ‘INSTINCTIVE SYNTHESIS‘ APPROACH ADOPTED BY THE VICTORIAN SUPREME COURT THEN THIS COURT SHOULD LEAVE IT TO THE HIGH COURT TO RESOLVE THE ISSUE.“
5.2 Other exceptions?
The NSW Court of Criminal Appeal has also considered the concept of instinctive synthesis in cases involving worst case category offences where a life sentence has been imposed. Recently, in R v Valera98 the appellant appealed against the imposition of two life sentences on the basis that they were manifestly excessive. Counsel for the appellant urged that it was incorrect to approach the sentencing task by first assessing the objective gravity of the offence without regard to subjective features, and then to consider the subjective features only in mitigation. Meagher JA (Wood CJ at CL and Bell J agreeing) found that this two-step approach had its genesis in the judgments of Samuels JA and Lee J in Bell v The Queen99 and had constantly been followed.100 Meagher JA stated:101
“IN MY VIEW, HIS HONOUR WAS CORRECT IN APPLYING A 2-STEP TEST. AND THIS FOR TWO REASONS. FIRST, BECAUSE THE WEIGHT OF AUTHORITY REQUIRED HIM TO DO JUST THAT. THE SECOND IS THAT THE ONLY POSSIBLE ALTERNATIVE – THAT ADVOCATED BY STREET CJ IN BELL – IS TO MAKE AN ‘INSTINCTIVE SYNTHESIS‘, WHICH WILL LEAD TO EXACTLY THE SAME RESULT. PROVIDED YOU TAKE INTO ACCOUNT ALL RELEVANT FACTORS, IT DOES NOT MATTER IN WHICH ORDER YOU TAKE THEM.“
The passage in Valera appears to relate to a narrower two-step test to be applied in determining whether a case falls into the worst case category, rather than general sentencing principles. However, the reference to instinctive synthesis and comments made by Wood CJ at CL suggest the judgment may have wider implications. Although it is not entirely clear, it appears that the court has previously sought to distinguish a two-step test from the so-called two-tiered approach.
5.3 Worse case category
In R v Garforth102 the court was asked to consider whether a life sentence imposed for murder was appropriate. The court (Gleeson CJ, McInerney and Mathews JJ) appeared to distinguish the two-tiered approach from a sequential process of reasoning. It was submitted by counsel that the trial judge wrongly engaged in a two-stage approach to sentencing, falling into the error described in R v Young.103 This criticism was rejected by the court:104
“IN OUR VIEW IT IS NOT CORRECT TO DESCRIBE NEWMAN J‘S APPROACH IN THIS CASE AS BEING TWO-TIERED. HIS HONOUR LISTED VARIOUS FEATURES CAPABLE OF PRODUCING THE RESULT THAT THIS SHOULD BE REGARDED AS A CASE OF THE WORST TYPE, AND THEN ASKED HIMSELF WHETHER THERE WERE MITIGATING CIRCUMSTANCES WHICH REQUIRED A DIFFERENT CONCLUSION. HE CONCLUDED THAT THERE WERE NOT. THIS PROCESS OF REASONING DOES NOT INVOLVE THE ERROR ATTRIBUTED TO IT BY COUNSEL. NOR DOES IT INVOLVE ANY RISK OF INJUSTICE. WHAT HIS HONOUR WAS DOING WAS CONSIDERING SEQUENTIALLY THE ARGUMENTS FOR AND AGAINST A CONCLUSION THAT THIS WAS A CASE OF THE WORST TYPE. AT THE END OF HIS JUDGMENT HIS HONOUR WEIGHED THE ARGUMENTS TOGETHER AND TO USE AN EXPRESSION QUOTED IN R V YOUNG ARRIVED AT AN APPROPRIATE SYNTHESIS.“
In R v Twala105 this issue was again considered when the appellant successfully appealed a life sentence for murder, reducing it to one of 20 years with a non-parole period of 15 years. At trial the appellant had raised the defence of diminished responsibility, however, this had been rejected by the jury. Despite this rejection the court found that the killing itself was clearly influenced by the mental disturbance of the accused, resulting from a break down in his relationship with the victim. The accused‘s mental condition was therefore a fact mitigating the seriousness of the crime as determined objectively and was not a subjective fact:106
“IN MY VIEW THE REASONING PROCESS OF THE LEARNED TRIAL JUDGE WAS ENTIRELY APPROPRIATE AND TO DEAL WITH THE MATTER IN THE TERMS IN WHICH COUNSEL HAS SUBMITTED WOULD HAVE BEEN TO RISK THE ADOPTION OF THE SO-CALLED TWO-TIERED SENTENCING PROCESS CRITICISED IN R V YOUNG . WHAT HIS HONOUR DID, AND APPROPRIATELY, WAS TO IDENTIFY THE RELEVANT CONSIDERATIONS OBJECTIVE AND SUBJECTIVE, AND IN HIS TERMS, ‘TO DRAW TOGETHER AND TO EXPRESS AS A SENTENCE OF THE COURT THE VARIOUS MATTERS OBJECTIVE AND SUBJECTIVE‘ TO WHICH HE HAD PREVIOUSLY REFERRED.“
Similarly, in R v Lett107 it was submitted that the trial judge fell into error when he said that the objective features of the offence should lead to the imposition of a life sentence. Counsel for the appellant argued the trial judge was wrong in excluding the appellant‘s mental disability from the objective facts of the case. Hunt CJ at CL found this submission was based on a misunderstanding of the concept of the objective gravity of the facts of the case. He found (Sully and Levine JJ agreeing), that it would be unwise to determine what sentence may be appropriate by having regard to the objective circumstances of the case and then considering how the mitigating circumstances would reduce that sentence. According to his Honour this was: “perilously close to what is described as the ‘two-tiered‘ approach criticised in R v Young“. According to the court this line of reasoning was unwarranted as it would multiply the possibility of error and inevitably increase the incidence of arguable appeal points.
Notwithstanding the reasoning of the trial judge, Hunt CJ at CL was satisfied that he had not ultimately adopted a two-tiered approach. Rather, he found the trial judge had considered sequentially the arguments for and against the imposition of a life sentence. Consequently, the trial judge’s conclusion that this was a case calling for a life sentence was justified.108
The debate about the two-tiered approach to sentencing has been further confused by the use of similar terminology in other contexts. For example, a two-step or two-stage process is used to describe the approach when determining whether a sentence other than imprisonment, or a suspended sentence, should be imposed. In R v Zamagias,109 Howie J (Hodgson JA and Levine J agreeing) set out the manner in which the court should approach the imposition of a sentence of periodic detention pursuant to the Crimes (Sentencing Procedure) Act 1999. His Honour found that when sentencing an offender to a term of imprisonment the court is required to undertake a number of steps before finally determining the appropriate sentence. A preliminary question is whether a penalty other than imprisonment is appropriate. The court should then determine the length of the sentence without regard to the manner in which the sentence is to be served. Once the term of the sentence is set, the court can then consider whether there is any alternative to full time custody.110 However, this process needs to be distinguished from the so-called two-tiered process as applied to sentencing generally. According to R v Zamagias,111 the legislation requires that two discrete steps occur when deciding whether to pass a suspended sentence.
6. Other jurisdictions
The two-stage approach to sentencing has not generally met the same hostility in other jurisdictions as it faced in Victoria. Even where the approach has been questioned by some judges, it has not been considered a sentencing error. The practice in these jurisdictions, as in NSW, appears to be quite different to that in Victoria.
6.1 Western Australia
In the Western Australian case of McKenna v The Queen112 the court held that it was permissible for a sentencing judge to first decide upon a starting point before discounting from this outer limit.113 The issue was further addressed in R v Punch114 where the applicant submitted that the trial judge wrongfully adopted a two-tiered approach:115
“WITH THE GREATEST RESPECT, THERE SEEMS TO ME TO BE A DANGER THAT THE DEBATE REFERRED TO IS REDUCED TO A MATTER OF SEMANTICS. THE IMPORTANT ASPECT WOULD APPEAR TO BE THAT A SENTENCING JUDGE MUST AT ALL TIMES RECALL THAT HIS PRIMARY TASK IS TO ARRIVE AT A SENTENCE WHICH IS PROPORTIONATE TO THE GRAVITY OF THE OFFENCE IN ALL THE CIRCUMSTANCES.“
In examining the authorities, Murray J found that they were not such as to persuade the court to adopt the views expressed in Victoria. Anderson J expressed the strongest support for the two-tiered approach. He found that this method, whereby the sentencer first seeks to arrive at the appropriate sentence by looking at the gravity of the crime and then discounting this sentence progressively by deducting various factors, was a well-established practice in Western Australia:116
“THE METHOD HAS BEEN IN USE BY SENTENCING COURTS IN THIS STATE FOR SO LONG AND WITH SUCH WIDE ACCEPTANCE ON THE PART OF THE CRIMINAL BAR, THAT THE ADOPTION OF IT OUGHT NOT TO BE REGARDED AS AN ERROR OF PRINCIPLE.“
In Verschunen v The Queen,117 Malcom CJ with whom Pidgeon J substantially agreed, found it was clearly desirable for mitigating factors, such as an early plea or assistance to authorities to be quantified wherever practicable by the use of a two-tiered approach to sentencing, in order to show how the final sentence is determined.118
6.2 South Australia
The two-stage approach to sentencing has also been adopted in South Australia. In R v Golding119 Wells J set out a number of considerations that appear to give support to the two-stage approach. His Honour stated that in sentencing an informant it is permissible for a judge to arrive at a sentence that would ordinarily be passed if no assistance had been given to authorities, and then to determine what, if any, allowance should be made for providing information.
The South Australian Court of Criminal Appeal recently reviewed two-stage sentencing in the context of providing a specific reduction for a plea of guilty. In R v Powell120 the court examined the sentencing remarks of the joint judgment in Wong v The Queen; Leung v The Queen.121 Prior J found that the views expressed in the joint judgment did not establish that a two-stage approach to sentencing is wrong in principle. In citing King CJ in Harris and Simmonds,122 Prior J agreed with the proposition that sentencing judges should be encouraged to indicate the extent to which they have taken guilty pleas into account. He said that “until the High Court expressly decides otherwise, in this State sentencing judges should indicate as far as possible and wherever possible, the extent of the discount given for a plea of guilty.“123 Further, Prior J agreed with the observation of Martin J in R v Wiskich124 that while it was impossible to engage in a process of mathematically identifying an allowance for each factor relevant to the sentencing decision, it was nevertheless appropriate to allocate specific credit for“surrender, co-operation with the authorities, a plea of guilty and contrition a course seen almost as the rule rather than the exception in this State“. A similar view was expressed in R v Place.125
6.3 Northern Territory
According to Fox and Freiberg, the two-stage approach has not been objected to in the Northern Territory.126 In R v Raggett,127 the court specifically rejected an argument that error would be revealed if the sentencing judge had adopted a two-tiered approach, such as that proscribed in R v Young.128 In addition, in R v Mulholland,129 Gallop J preferred the Victorian view as expressed in R v Young while Angel J did not really consider there to be much difference between the two approaches once each was looked at in its proper perspective. Having considered the process involved in both he stated: “In my view, neither approach is innately preferable to the other.“130
7. A single correct methodology?
At the time of writing, a majority of High Court judges tend towards the view that the two-tiered approach to sentencing is wrong in principle and should not be adopted. At least one commentator has suggested that the concept of instinctive synthesis may be adhered to generally while permitting certain discounts for particular mitigating factors, such as guilty plea or assistance to authorities. Indeed, this appears to be the view of the NSW Court of Criminal Appeal in R v Sharma.131 However, such discrete exceptions to the rule do not seem to be favoured by the High Court and it is not clear whether new categories of exceptions can so easily be added to the list and whether to do so will inevitably destroy the objection to two-tier sentencing.
In contrast, Corns advocates that a more refined sentencing methodology than instinctive synthesis can and should be implemented. He states that one of the fundamental purposes of a sentencing methodology is to achieve an acceptable level of accountability. Similar to the sentiments expressed by Kirby J, he indicates that reasons need to be given so that the offender and the community know what the particular sentence is and how it was determined. Such a methodology needs to ensure some degree of consistency to the sentencing task,132 although the advocates of instinctive synthesis might argue that their methodology can achieve a consistent and just outcome intuitively. Corns concedes, however, that significant discretion must be left to the court when sentencing, so that minor adjustments may be made to the sentence based on the facts of the case. Such discretion allows the judge to make sure that the sentence is fair according to established principles.
Indeed, although there are distinct disadvantages with a strictly two-tiered approach, it is respectfully suggested that there may be more than one way of legitimately approaching the sentencing task. Moreover, it would be unhelpful to limit the type of methodology available to the sentencing officer by reference to instinctive synthesis only. As illustrated by the trial judge in R v Young,133 the two-tiered approach, whereby objective and subjective factors are considered at separate stages in the sentencing process, is often helpful to judges who are being asked to take into account numerous elements regarding the offence and the offender. Although there are limitations to this approach, its basic premise may be of assistance to the courts. As emphasised by Gleeson CJ, the process of reasoning does not have to be strictly sequential. Judges are more than capable of entertaining different ideas at once. However, a judge who is forced to examine many competing elements all at once may feel overwhelmed by the accumulation of different factors. Requiring judges to give reasons may force them to exercise greater care in the sentencing task, and to fully assess their own underlying assumptions as to why a certain sentence may “feel“ right.
Provided all the relevant factors are addressed in accordance with legal principle and the offence looked at in its true context, there may be scope to adopt a tiered or sequential process of reasoning. At the end of this task, and perhaps even during the formulation of the sentence, the judge may exercise his or her discretion to reflect on whether the sentence derived, or about to be derived, is fair and just in comparison with similar cases. This process of sentencing by analogy is common practice and is accepted by judges who support the two-tiered approach as well as those who favour the instinctive synthesis approach. Comparison with the sentences imposed in other cases allows a judge or magistrate to draw on judicial experience, whether it is individual experience or the collective experience of the court, as set down in earlier decisions. As Leader Elliot points out, it is unfortunate that the High Court has preferred the term “instinctive synthesis“ to that of judicial “wisdom and experience“:134
“IT MIGHT INDEED HAVE BEEN PREFERABLE FOR THE COURT TO RISK AN ACCUSATION OF OVERWEENING ARROGANCE AND DEFEND THE EXERCISE OF SENTENCING DISCRETION ON THE GROUND THAT PERMITS THE EXPRESSION OF JUDICIAL WISDOM. BETTER THAT, THAN THE UNDERWEENING APPEAL TO JUDICIAL INSTINCTS.”
Judges need to be flexible in their approach to the sentencing task, to ensure that every case is looked at in its true context and an appropriate sentence is formulated. However, the reasons for this process also need to be made clear if there is to be consistency in sentencing and confidence in the administration of justice.
Finally, we are reminded of the words of Street CJ in R v Rushby:135 “it is cool reason, not passion or generosity that must characterise sentencing, as all other acts of judgment.“ “Cool reason“ does not sit well with intuition or instinct. While conceding that sentencing involves many imponderables and that a strictly mathematical approach to the determination of sentence is objectionable, so too, in our opinion, is a purely instinctive or intuitive approach to sentencing.
In reaching the right decision, judicial instinct or intuition will play a part, particularly in cases involving a wide variety of incommensurable and often conflicting factors. These must be reduced or synthesised into a value that accords with the overall facts of the case, the applicable principles and the sentence imposed. While neither purely art nor science, sentencing will draw on both of these from time to time. Instinct and reason will work together in a way that will allow the sentence imposed to be amenable to rational explanation as well as to intuitively feel right.
It is precisely because of the complexity of the sentencing process and the variability of the circumstances of each case that judges are given a broad discretion to determine sentence. We know that in most instances there is no single correct penalty but a range within which a sentence may be regarded as appropriate, hence mathematical precision is inappropriate. But this does not mean that proportionality, a mathematical concept, has no role to play in determining an appropriate sentence. The two-tiered and instinctive synthesis approaches both require the making of value judgments, assessments, comparisons (treating like cases alike and unlike cases differently) and the final balancing of a diverse range of considerations that are integral to the sentencing process.
At the risk of offending supporters of instinctive synthesis, we suggest that two-tiered or sequential reasoning has the advantage of breaking down an often complex set of facts and principle into manageable components. This does not turn the decision-making process into a strictly mathematical exercise, but simply assists in organising thoughts and explaining how decisions are reached. In this way appeal courts are better able to assess whether the sentencer has given too little or too much weight to a particular factor. It enables decisions to be analysed, contrasted and compared in terms of their objective and subjective components. Thus, consistency of approach in sentencing is promoted and judicial accountability enhanced.
Although we concede that sentencing does involve some instinct or intuition we would nevertheless prefer to see it expressed in ways that reflect the more conventional and palatable notion that sentencing is a human process, that it involves a discretionary exercise applied within the constraints of the judicial process and that the process requires the balancing of many, often conflicting, considerations or factors that cannot always be assigned individual weight. What matters is that all relevant considerations are taken into account, that proper reasons are provided for the sentence and that the sentence imposed is neither unduly lenient nor excessively severe.
Accordingly, we see no harm in retaining a two-tiered sentencing methodology wherein the sentencing judge or magistrate determines the upper, and sometimes lower, limits of an appropriate sentence based on the notion of offence seriousness or objectivity (the outer range of proportional punishment) and then proceeds to fine-tune the sentence by reference to other considerations. These considerations should be identified if they tend to increase or reduce the sentence to be imposed. At times, but certainly not always, this may include specifying a discount for one or more variables. We prefer this to simply expressing the process in terms of instinctive or intuitive synthesis. The first approach is more consistent with notions of transparency, the giving of reasons and accountability; the second is more mysterious, idiosyncratic and less open to analysis.
Some cases may be more amenable to a sequential form of reasoning than others. Similarly, some judicial officers may find two-tiered sentencing a useful method for determining sentence while others may not. While we favour consistency of approach we also agree that sentencing methodology should not be excessively rigid or artificial. It is important that the appropriate considerations are taken into account, that the correct law and proper principles are applied, and that the sentence imposed can be justified. Just as there is no single correct penalty, so too, we suggest, there is no single correct methodology. If this were otherwise, we would undermine or excessively restrict the important discretionary element of the sentencing process.
Meanwhile, until such time as the High Court clarifies the situation, judicial officers will be left to undertake the task of sentencing, uncertain as to the validity of their approach. Until then, courts may best adopt the practice of reaching their decisions on the basis of instinctive synthesis in addition to any other method they may seek to employ. When new legislation136 introducing standard minimum non-parole periods becomes law in NSW, further consideration will need to be given to the issues raised in this article. These reforms link standard minimum non-parole periods with the middle of the range of objective seriousness of certain tabled offences,137 and departure from these standards must then be justified by reference to certain aggravating and mitigating factors listed under s 21A of the Crimes (Sentencing Procedure) Act 1999. A purely instinctive synthesis, single-tiered approach to sentencing will be increasingly difficult to reconcile with the requirements of this legislation.
* At the time of writing the article.
1 (2002) 76 ALJR 79.
2 (2002) 76 ALJR 382.
3 In his recent paper on sentencing reform, Dr Neil Hutton expresses the view that instinctive synthesis comes from a variety of sources: from a sentencer‘s experience both as judge and as counsel, from the local working culture of the court, from the informal professional culture of the various branches of the judiciary, and from the training that judges receive. He also observes that such extensive discretion creates considerable potential for inconsistent sentencing: see N Hutton, “Sentencing Reform”, McClintock Memorial Lecture 2000, University of Strathclyde.
4 R v MacDonell  NSWCCA 34; see also the comments of Spigelman CJ in R v Sharma (2002) 54 NSWLR 300 where departure from the instinctive synthesis approach has been justified by appeal to the principles of statutory interpretation.
5 R v Valera  NSWCCA 50 at .
6 See, for example, R v Wong and Leung  NSWCCA 169 (decision remitted from the High Court); R v Ho  NSWCCA 379; R v Bolt (2001) 126 A Crim R 284; R v Sharma  54 NSWLR 300 at .
7  NSWCCA 373 at .
8 In R v Dursim (2000) 111 A Crim R 460 there is reference to “three stage“ sentencing.
9 See the discussion of suspended sentences below, p 11.
10  VR 292.
11 (1986) 23 A Crim R 433.
12 (1990) 45 A Crim R 147.
13 C Corns, “Destructuring sentencing decision-making in Victoria“ (1990) 23 Australian and New Zealand Journal of Criminology 145.
14 R v Williscroft  VR 292 at 300.
15 See the discussion of this in R v Thomson (2000) 49 NSWLR 383; Wong v The Queen; Leung v The Queen (2001) 79 ALJR 76; R v Sharma (2002) 54 NSWLR 300.
16 In R v Thomson (2000) 49 NSWLR 383 Spigelman CJ saw the two-stage approach as a process whereby a preliminary sentence is first determined and then “adjusted“ by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. Note also that this definition of the two-tiered approach was taken in Wong v The Queen; Leung v The Queen (2001) 79 ALJR 76 where the court looked at the two-tiered approach as singling out some considerations and attributing specific numerical or proportionate value to these features.
17 (1986) 23 A Crim R 433.
18 “4(1) A court in passing sentence for an offence on a person who pleaded guilty to the offence may take into account in fixing the sentence the fact that the person pleaded guilty.
(2) If under subsection (1) a court reduces the sentence that it would otherwise have passed on a person the court must state that fact when passing sentence.
(3) The failure of a court to comply with subsection (2) does not invalidate any sentence imposed by it.“
19 R v Morton (1986) 23 A Crim R 433 at 438.
20 (2000) 49 NSWLR 383.
21 (2000) 76 ALJR 382.
22 (1990) 45 A Crim R 147.
23  VR 292.
24 R v Young, Dickenson and West (1990) 45 A Crim R 147 at 150.
25 See the comments of McHugh J in AB v The Queen (1999) 198 CLR 111; Hayne J in Ryan v The Queen  HCA 21.
26 (1988) 164 CLR 456.
27 R v Young, Dickenson and West (1990) 45 A Crim R 147 at 157.
28 Corns, op cit n 13 at 148
29 R v Young, Dickenson and West (1990) 45 A Crim R 147 at 157–158.
30 See R v King (1985) 82 Cr App R 120 at 122 per the Lord Chief Justice: “It scarcely needs stating that the Court will first turn to the offences the informer has admitted to assess their gravity and their number, that should enable the Court to arrive at what might be called the starting figure One then has to turn to the amount by which that starting figure should be reduced. That again will depend upon a number of variable features.”
31 Corns, op cit n 13 at 150.
32  NSWCCA 343.
33  2 NSWR 329.
34 Ibid at 330.
35 Ibid at 332.
36 The views of members of the High Court are discussed below.
37 N Morgan, “Sentences of imprisonment; Instinctive synthesis and two-tiered approach: Punch“ (1994) 18 (6) Criminal Law Journal 53 at 55.
38 AB v The Queen (1999) 198 CLR 111 at  per McHugh J; Ryan v The Queen  HCA 21 at  per Hayne J; Wong v The Queen; Leung v The Queen (2002) 76 ALJR 79 at  per Gaudron, Gummow and Hayne JJ;  per Gleeson CJ;  per Kirby J; Cameron v The Queen (2002) 76 ALJR 382 at  per McHugh J; – per Kirby J.
39 (1999) 198 CLR 111.
40 Ibid at 120.
41  VR 292.
42 AB v The Queen (1999) 198 CLR 111 at 122 per McHugh J.
43  HCA 21.
44 The court added that, in addition to the breach of trust was the consideration that the accused had engaged in repeated acts of sexual abuse and was essentially leading a double life. The High Court confirmed, however, that even though all of these factors reduced the weight to be given to prior good character the appellant was nevertheless entitled to some leniency.
45  HCA 21 at .
46 Corns, op cit n 13 at 147.
47 AB v The Queen (1999) 198 CLR 111 at 122.
48 “No doubt at the conclusion of the process, the judge will check the sentence against other comparable sentences and may feel compelled to adjust the sentence up or down. But that is quite different from beginning with an ‘objectively’ determined sentence“: AB v The Queen (1999) 198 CLR 111 at 122 per McHugh J.
49 (2002) 76 ALJR 79.
50 In this particular case it was the offender‘s place in the hierarchy which was given particular significance in fixing a sentence. However, the joint judgment found that this did not provide the sentencer with any guidance, whatsoever, about how that was to have effect on other elements which were to be taken into account or may have already been taken into account in fixing the guideline range of sentences. They went on to say at : “So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.“
51 (2002) 76 ALJR 79 at .
52 Ibid at .
53 Ibid at  (footnotes omitted).
54 Ibid at .
55 Note also that a judge must also take into account further offences admitted on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which will tend to increase the sentence that would otherwise have been deemed appropriate.
56 (2002) 76 ALJR 382.
57 See generally C Craigie SC, “General Advice to Legal Aid Commission New South Wales on Pleas of Guilty Following the Decision of High Court of Australia in Wong v The Queen  HCA 64“ (2001) Law Society Onlineat www.lawsocnsw.asn.au/practice/mews/ 187.htm>.
58 Cameron v The Queen (2002) 76 ALJR 382 at  per Kirby J.
59 I Leader-Elliot, “Editorial“ (2002) 26 (2) Criminal Law Journal 5.
60 vv M Bargaric, “Sentencing: The road to nowhere“ (1999) 21 (4) Sydney Law Review 597 at 609.
61 v Ibid at 608–609.
62 R Fox and A Freiberg, Sentencing State and Federal Law in Victoria, 1999, 2nd edition, Oxford University Press, p 196.
63 Cameron v The Queen (2002) 76 ALJR 382 at .
64 As quoted in Corns, op cit n 13 at 146.
65 (2002) 54 NSWLR 300 at : “The Court cannot add, in some notional way, the three judges who joined in the joint judgment in Wong with the opinion expressed by McHugh J in AB.“
66 (2002) 76 ALJR 79 at  per Kirby J.
67 (2002) 76 ALJR 382 at  per McHugh J.
68  1 SCR 948.
69 (2002) 76 ALJR 79 at .
70 70  NSWCCA 343.
71 v Honourable Justice Wood CJ at CL, “Sentencing review“ (1999) 11 (5) Judicial Officers‘ Bulletin 33 at 34.
72″>72 Fox and Freiberg, op cit n 62, p 199.
73 (1991) 23 NSWLR 230.
74 (1990) 45 A Crim R 147.
75 In this case the sentencing judge had found that a period of imprisonment of 13 years was appropriate based on the objective circumstances. The trial judge gave a discount of 50% for assistance to authorities and the ultimate sentence was six and a half years. Counsel for the appellant argued that his Honour therefore must have left out all the relevant subjective circumstances.
76 R v Gallagher (1990) 45 A Crim R 147 at 230 per Gleeson CJ. It has been argued elsewhere that the approach in R v Young does not appear to have found favour in NSW: see R v Punch (1993) 67 A Crim R 46 at 55 per Murray J.
77 (unrep, 22/8/91, NSW CCA).
78 Ibid at .
79 Ibid at .
80 (1992) 58 A Crim R 345.
81 Ibid at 350 per Hunt CJ at CL (Smart and Grove JJ agreeing).
82 See Justice David Hunt, “Criminal Law Update – Court of Criminal Appeal“ (1997) 3 The Judicial Review 115 at 150.
83 (unrep, 12/12/97, NSW CCA).
84 (2001) 76 ALJR 79.
85 Ibid at : “As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. [R v Geddes (1936) 36 SR(NSW) 554 at 555 per Jordon CJ; R v Gallagher (1991) 23 NSWLR 220 at 227–228 per Gleeson CJ; 233-234 per Hunt J; R v Beavan (unreported, Court of Criminal Appeal NSW, 22 August 1991);Winchester (1992) 58 A Crim R 345 at 350 per Hunt CJ at CL; R v Williscroft  VR 292 at 300.]“
86 (2000) 49 NSWLR 383.
87 R v Sharma (2002) 54 NSWLR 300 at  per Spigelman CJ.
88  NSWCCA 34.
89 Ibid at .
90  NSWCCA 343.
91 Ibid at .
92 (1989) 167 CLR 348 at 356.
93  NSWCCA 343 at –.
94 “A sentence should not be less than the objective circumstances require“: ibid at .
95 (1991) 57 A Crim R 349 at 354.
96 R v Whyte  NSWCCA 343 at .
97 Ibid at .
98  NSWCCA 50.
99 (1985) 2 NSWLR 466.
100 Citing R v Garforth (unrep, 23/5/94, NSW CCA); R v Twala (unrep, 4/11/94, NSW CCA); R v Fernando  NSWCCA 66; R v Harris (2000) 50 NSWLR 409 as examples.
101 R v Valera  NSWCCA 50 at .
102 (unrep, 23/5/94, NSW CCA).
103  VR 951.
104 R v Garforth (unrep, 23/5/94, NSW CCA) at .
105 (unrep, 4/11/94, NSW CCA).
106 Ibid at .
107 (unrep, 27/3/95, NSW CCA).
108 Ibid: “It was, of course, important to have regard first and foremost to the objective gravity of the offence, because without such an assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place: R v Geddes (1936) 36 SR 554 at 556; R v Dodd (1991) 57 A Crim R 349 at 354.“
109  NSWCCA 17.
110 According to the court, the preliminary question is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 of the Act prohibits a court from imposing a sentence of imprisonment unless the court is satisfied, having considered all the possible alternatives, that no penalty other than imprisonment is appropriate. That is because a sentence cannot be suspended until it has been imposed. Having determined that there is no penalty appropriate other than a sentence of imprisonment the court is next to determine what that sentence should be: R v Foster  NSWCCA 215 at . This is the first step of a two-step approach to the imposition of a sentence of imprisonment: see R v Blackman and Walters  NSWCCA 121. Merely because a court has not expressly indicated it has taken the two-step approach does not mean it has failed to carry out the sentencing exercise in this manner: R v Saldaneri  NSWCCA 480 at . However, the nature of the sentence imposed and failure to record that a two-step approach has been taken may lead the court to carefully examine the finding made by the sentencing judge in order to determine whether the sentence is erroneous: R v Foster at .
111  NSWCCA 17.
112 (1992) 7 WAR 455.
113 Morgan, op cit n 37 at 55.
114 (1993) 67 A Crim R 46.
115 Ibid at 54.
116 Ibid at 63.
117 (1996) 91 A Crim R 1.
118 Ibid at 7.
119 (1980) 24 SASR 161.
120 (2001) 126 A Crim R 137 at 140.
121 (2002) 76 ALJR 79.
122 (1992) 59 SASR 300 at 302.
123 (2001) 126 A Crim R 137 at 140.
124 (2000) 207 LSJS 431 at 465.
125  SASC 101.
126 Fox and Freiberg, op cit n 62, p 198.
127 (1990) 50 A Crim R 41.
128  VR 951.
129 (1991) 102 FLR 465.
130 Ibid at 474.
131 (2000) 54 NSWLR 300.
132 Corns, op cit n 13 at 155.
133  VR 951.
134 Leader-Elliot, op cit n 59.
135  1 NSWLR 594 at 597.
136 The Crimes Sentencing Procedure Amendment (Standard Minimum Sentencing) Act 2002 (NSW).
137 Crimes (Sentencing Procedure) Act 1999 (NSW), s 54B.
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This paper was prepared by officers of the Judicial Commission for the information of the Commission and for the information of judicial officers. The views expressed in the report do not necessarily reflect the views of the Judicial Commission itself but only the views of the officers of the Commission who prepared this report for the Commission.