Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 18/1998 by Honor Figgis
Page Content
- Judges and magistrates have a fairly wide discretion to
determine what sentence an offender should receive. This discretion is
exercised within legislative boundaries that set maximum penalties. The
sentencing discretion is also structured by common law sentencing principles
and doctrines (pages 2-6).
- There is some public concern in New South Wales about undue
leniency in sentencing, and the existence of unjustified sentencing
disparities (that is, cases where an offender receives a sentence that is
significantly more lenient or harsher than an offender in those circumstances
would normally receive). There may be a degree of sentencing disparity in New
South Wales, although the extent and significance of any disparities is not
clear. Some argue that a major source of sentencing disparity is the wide
judicial sentencing discretion, combined with different penal philosophies
among judges (pages 5-7).
- There are several methods of limiting judicial discretion. They
include guideline judgments, presumptive sentencing guidelines, and mandatory
sentencing. These measures vary widely in their details, their objectives, and
their effects. Guideline judgments are decisions handed down by appeal
courts setting out the principles of sentencing and the range of penalties that
may be applied to a given offence (pages 13-15). Presumptive sentencing
guidelines (commonly called grid sentences') are contained in or based on
legislation. They set out a range of penalties for an offence based on the
seriousness of the offence, and the offender's criminal history. Other factors,
such as aggravating or mitigating circumstances, may be included in the
guidelines (pages 8-13). Judges may be able to depart from the guidelines in
particular circumstances, or upon giving reasons for a departure). Mandatory
minimum sentences are minimum sentences prescribed for a particular
offence. The minimum sentence may be determined by the offender's criminal
record, as well as by the offence. Judges must sentence between the minimum and
maximum penalties (p 8). These different reform measures each have advantages
and disadvantages (pages 17-22).
- The New South Wales Law Reform Commission in its comprehensive
1996 report on sentencing recommended against limiting judicial sentencing
discretion by grid sentencing or by minimum sentences. In the Commission's
view, efforts to reduce any sentencing disparity should concentrate on the
review of sentences by appeal courts, the Judicial Commission's sentencing
information system, and the provision of clear reasons for sentences by the
sentencing court (pages 15-17).
- New South Wales has introduced mandatory life sentences
for murder and certain drug trafficking offences where a court is satisfied
that the level of culpability is extreme. The judicial sentencing discretion is
also affected by the recent decision of the New South Wales Court of Criminal
Appeal to issue its first formal guideline judgment. To promote the development
of further guideline judgments, the NSW Government has indicated it is
considering allowing the Court to establish guidelines without linking them to
individual cases (pages 23-28).
- The Northern Territory has recently implemented
mandatory minimum terms of imprisonment for some property offences; for adults,
the sentences range from 14 days prison for a first offence, to 12 months for a
third or more offence (pages 28-32). Western Australia has also
implemented mandatory minimum terms of 12 months imprisonment for third (or
more) repeat home burglaries. The Western Australian Government is also
planning to introduce a presumptive sentencing matrix' in the near future
(pages 32-34). In the United Kingdom legislation in 1997 introduced
mandatory minimum prison sentences (with limited exceptions) for certain
repeated offences: an automatic life sentence on a second conviction for a
serious sexual or violent offence; and a mandatory minimum seven-year sentence
for serious three-time repeat drug dealers (pages 35-36).
