Criminal Law Sentencing

In South Australia, legislation that guides sentencing provide a list of ‘factors’ a court must consider – the rest is a matter of ‘instinctive synthesis’ or gut instinct in what may end up being the final outcome. The High Court has cautioned the courts against using a mathematical approach to sentencing because it said this fails to take into account the complexities of each case.[1] This is also sometimes referred to as ‘individualised justice’.

The Victorian Government has already announced it will establish a sentencing guidelines council in 2018 and is currently in the process of gauging with stakeholder and community consultation.[2]

In the interest of promoting greater public confidence in the criminal justice system as well as furthering consistency and transparency in how courts come to making their decisions, SA-BEST is advancing the introduction of sentencing guidelines as a part of its law and order policy.

Our proposal would include the creation of a ‘Sentencing Advisory Council’ which will be tasked with developing, consulting, publishing and then publicising the different guidelines based on a specific range of crimes.

We understand this is no small undertaking, but sentencing is a fundamental aspect of justice and we need to make sure any attempt to change the approach to how criminal law sentences are dealt with are properly incorporate into South Australia’s sentencing landscape so that constitutional issues do not arise unexpectedly.

Some of this ground work has already been undertaken by another Australian jurisdiction and while no definitive model has been agreed, early signals suggest there is a national appetite for better sentencing approaches which we are on board with. 

Why do we need sentencing guidelines?

  • Sentencing guidelines are designed to provide a stepped approach to a decision that promoted better consistency
  • These guidelines would then be reflected in the court’s reason as to how it comes to its decision in a manner that is uniform and consistent
  • The court retains an overall discretion as to whether it departs from the guidelines if it is necessary in the interests of justice – but any departure from the guidelines will need to be reasoned in the decision also.
  • Sentencing guidelines are better for all parties involved in the matter – the offender, the victim and importantly also, they promote public confidence in the criminal justice system.

What is a sentencing guidelines council?

  • An independent statutory body (independent of government and the courts)
  • The council would comprise of 7 serving judicial members as well as a blend of 6 legal and community members – including, if appropriate, the Commissioner for Victims Rights
  • Their role would be to consult with the various stakeholders (including victims of crime) and then develop, publish and publicise the different criminal law sentencing guidelines

How do these Sentencing Guidelines work?

  • Each guideline is tailored to a specific area of law written specifically to address the levels of seriousness and harm done in the different offences within our legal criminal framework (for example: drug offences, assault, corporate crime, manslaughter etc.)
  • Each sketches out a step by step approach tailored to that specific crime
  • This approach is structured in a series of stages to conform to a series of priorities
  • Each with a comprehensive range of factors the court should take into consideration

Important: The court will still maintain its complete discretion to depart from the sentencing guideline if doing so would be in the interest of justice

Will sentencing guidelines change the outcome of sentences?

  • No, the model we are proposing is designed to guide the court in its underlying approach to a sentencing so that their reasons are more consistent and easier to follow – they are not designed to influence the outcome of the sentence
  • This is not the same model that is utilised in the USA where a more mathematical grid-like structure is designed to calculate and directly influence sentencing outcomes

Discretion remains an essential feature in sentencing guidelines:

  • Sentencing guidelines are not designed to detract from the court’s ability to impose individualised sentences based on the circumstances before them
  • They do not limit or restrict the court in the matters open to consideration

They should require the court to give reasons as to why it has departed from the guideline in order to maintain transparency and integrity in the guideline

Do sentencing guidelines reflect the interests of victims of crime?

  • Yes, the Sentencing Guideline Council would be required to consider the interests of victims by consultation and research into how a specific crime impacts a victim and the community
  • The guideline may also be used to remind the court to look at compensation if the offender is in a position to remedy the damage caused by the crime

[1]Anthony Vasken Markarian v The Queen (2005) HCA

[2] Sentencing Advisory Council 2017, ‘A Sentencing Guidelines Council for Victoria: Issues Paper’, November 2017, < https://www.sentencingcouncil.vic.gov.au/sites/default/files/publication-documents/A_Sentencing_Guidelines_Council_for_Victoria_Issues_Paper.pdf>

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