Doing time that fits the crime

Dr Christopher Corns

Dr Christopher Corns

For many decades, sentencing of offenders has been one of the most contentious and difficult issues within criminal justice in Australia. In Victoria, however, new trends appear to be emerging that raise deep questions concerning sentencing practices and responsibility for reform.

The first trend is that the Victorian Court of Appeal has expressed concerns not just about the specific sentence imposed but, more broadly, with statewide sentencing patterns for the particular offence. The precise concern is the disparity between the statutory maximum sentence (for example, 25 years' imprisonment) and the average sentence imposed (for example, five years). This type of disparity is serious and the average member of the community would be entitled to ask how this can happen.

Advertisement: Story continues below It is, of course, not uncommon for a court of appeal to criticise the particular sentencing judge for simply ''getting it wrong'', and not uncommon for the court to review current and traditional sentences imposed for similar cases. It is, however, uncommon for a Victorian court of appeal to state that typical or average sentences imposed for the particular category of offending are inadequate statewide. This type of appellate review or critique goes beyond the facts of the case under appeal and asserts that there is ''something wrong'' with the way sentencing occurs in these types of cases.

The second trend is that the Victorian Director of Public Prosecutions, Jeremy Rapke, QC, has become publicly proactive in his attempts to increase sentences in particular categories of offences. This ramping up of the DPP's efforts to increase sentences is linked to the concerns expressed by the Court of Appeal and raises the fascinating and important question of how far a DPP can enter the ''political'' arena to achieve whatever he or she thinks is desirable legal reform.

In my opinion, it would be wrong, for example, for any DPP to approach a particular trial judge and attempt to persuade him or her to impose heavier sentences. However, there is nothing wrong with the DPP or any prosecutor arguing in court for a particular sentence; that is one of the fundamental functions of the prosecution, but that operates in court, not in the political sphere. It is not suggested that the current DPP has crossed any boundaries, but his campaigning for increased sentences seems to represent a marked departure from his historical role.

Although some sentencing practices are under attack in Victoria, what is missing from the discussion so far is an explanation of the source of the problem and possible solutions. The structure and methods of contemporary sentencing deserve a closer scrutiny.

From a legal perspective, sentencing is indeed complex and difficult. Arguably the major difficulty arises from the method by which judges determine a sentence. For most serious offences, there will be a range of sentencing options and the judge must select the most appropriate type of sentence, and then decide the ''quantum'' or severity of the sentence. This is often difficult. The judge has a very broad discretion because the relevant legislation provides only general guidance.

At the heart of this judicial discretion in sentencing is the principle that the judge must apply his or her "instinctive synthesis" to all the relevant considerations in order to arrive at the final sentence. This method is the explanation for significant disparities between sentences imposed for similar offences, and significant disparities between the maximum sentence set out in the relevant legislation and the sentence actually imposed.

This idea of the "instinctive synthesis" has existed for many years in Australia and has recently been endorsed by the High Court in several cases as the only ''correct'' way to sentence offenders. The instinctive synthesis is in effect a very general approach which allows the sentencing judge to identify, consider, and weigh every factor relevant to the determination of an appropriate sentence.

The problem is that under the relevant legislation and under the common law, there are literally dozens of listed factors and sub-categories of factors. Many of these stated factors are phrased in general terms. Courts have, not surprisingly, given great weight to current sentencing practices or what is colloquially known as ''the going rate''.

After engaging in the Olympian mental gymnastics required by the instinctive synthesis, it is not surprising that the judge will be influenced by the type and severity of sentences imposed in similar type of cases. Indeed, the law itself requires a sentencing judge to have regard to ''current sentencing practices''. As long as the sentence is ''within the range'', the sentence of the judge should be ''appeal-proof''.

The generality and vagueness of the instinctive synthesis approach is productive of disparities between the statutory maximum and the sentence imposed. This disparity is clearly problematic and the DPP and the Court of Appeal are right to be concerned about it.

This now raises the question of how to reduce the disparity between statutory maximums and sentences imposed. First, the problem is unlikely to be solved by the executive government or the Parliament by way of legislative reform. This type of disparity is not amenable to simple legislative reform.

In my opinion, the most effective mechanism to address the issue is for the Court of Appeal to provide more guidance and structure for judges when sentencing for the particular category of offences. The current government introduced ''guideline judgments'' in 2003, but the Victorian Court of Appeal has been reluctant to utilise this new power. Arguably, that approach now needs to change. Faced with the degree of disparity identified in the cases to date, it is difficult to see why the Victorian Court of Appeal would not begin to develop the required guidelines.

Dr Christopher Corns is a Senior Lecturer in the School of Law.


*This article first appeared on The Age on 1 November 2010