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22 U. Queensland L.J. 74 (2002-2003)
Achieving Consistency in Sentencing: Moving to Best Practice

handle is hein.journals/qland22 and id is 80 raw text is: VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVv Achieving Consistency in Sentencing: Moving to Best Practice? Geraldine Mackenzie* LLM (QUT), PhD (UNSW), Senior Lecturer, Faculty of Law, Queensland University of Technology Traditionally, sentencing in Australia has been characterised by the presence of judicial discretion, which is typically exercised subject to appellate review and any common law or legislative restrictions. Sentencing laws introduced over the past 10-15 years in most Australian jurisdictions list the purposes for which sentences may be imposed, and provide principles of sentencing under which this is to be done.' Generally it is left to individual judicial officers, in the exercise of their discretion, to apply these principles to the case before them in a way that they see fit, according to all of the circumstances of the case. This wide judicial discretion is now beginning to be eroded by various legislative restrictions. These have included mandatory sentencing laws,2 restrictions on sentences for violent offenders,3 and even proposals for sentencing grids.4 Guideline judgments, mandatory sentencing schemes, and sentencing grids have been identified as constituting 'potentially serious encroachments' on judicial discretion.5 This article examines firstly consistency as a central sentencing imperative. It then addresses methods adopted in various jurisdictions for the regulation of judicial discretion in sentencing, namely computerised information retrieval systems, sentencing grids, mandatory sentencing and guidelines judgments. The usefulness of these strategies in achieving consistency is then discussed in the context of the Queensland sentencing system, * This article is adapted from a paper presented at the Queensland Supreme Court Judges' Seminar, Brisbane, March 2002. The assistance and comments of Professor David Brown, Faculty of Law, University of New South Wales, and Mr George Zdenkowski on earlier versions of this paper is gratefully acknowledged. I See Penalties and Sentences Act 1992 (Qld) s 9; Sentencing Act 1991 (Vic) s 5; and Sentencing Act 1995 (NT) s 5 which are very similar provisions; see also Sentencing Act 1995 (WA) s 6; Criminal Law (Sentencing) Act 1988 (SA) s 10; Sentencing Act 1997 (Tas) s 3; Crimes Act 1914 (Cth) s 16A; Crimes Act 1900 (ACT) ss 429, 429A. New South Wales has enacted legislation which is largely administrative and procedural in nature: Crimes (Sentencing Procedure) Act 1999 (NSW); Crimes (Administration of Sentences) Act 1999 (NSW); and Crimes Legislation Amendment (Sentencing) Act 1999 (NSW). 2 See eg, Sentencing Act 1995 (NT), Division 6, in particular s 78A; Crime (Serious and Repeat Offenders) Act 1992 (WA) (note that these provisions have now been repealed), and now s 401(4) Criminal Code 1913 (WA). The NT provisions were repealed in 2001 after a change in government; see Sentencing Amendment Act (No 3) 2001 (NT), which came into effect on 22 October 2001. Section 78A-B have been replaced with a new category of Aggravated Property Offences, which although restrictive, does not prescribe mandatory imprisonment. The mandatory sentencing provisions for juveniles were likewise repealed by the Juvenile Justice Amendment Act (No 2) 2001. 3 See eg, Part 9A Serious Violent Offenders, Penalties and Sentences Act 1992 (Qld); Part 2A Serious Offenders, Sentencing Act 1991 (Vic). See also Arie Freiberg, 'Guerillas in our Midst?' in Mark Brown and John Pratt (eds), Dangerous Offenders: Punishment and Social Order, Routledge, London, 2000, 66-68 in relation to the restrictions on discretion for those deemed dangerous offenders. 4 The Western Australian Parliament proposed the introduction of a sentencing matrix system, initially via the Sentencing Legislation Amendment and Repeal Bill 1998. This Bill was divided in two in 1999, including the Sentencing Matrix Bill 1999, which provided for the establishment of a two-stage sentencing matrix system. This Bill then became the Sentencing Amendment Bill 2000, which was passed and assented to on 6 December 2000 (Act no 64 of 2000). The Act was not proclaimed before the 2001 Western Australian elections, which resulted in a change in Government. 5 George Zdenkowski, 'Sentencing Trends: Past, Present and Prospective' in Duncan Chappell and Paul Wilson (eds), Crime and the Criminal Justice System in Australia: 2000 and Beyond, Butterworths, Sydney, 2000, 173-180.

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