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Discussions regarding mechanisms for reducing disparities in sentencing are ongoing in Australia.  All of the jurisdictions have sentencing laws that provide general guidance on principles and factors to be taken into account in sentencing.  However, judges retain significant discretion and utilize an individualized approach to justice.  The approach of authorizing an entity to set sentencing guidelines for particular offenses has been rejected as being contrary to these aspects of the system.  In the late 1990s and early 2000s, there was some movement by the courts themselves to deliver guideline judgments, but this has not been widely adopted and was seen by the High Court as potentially breaching constitutional provisions related to the separation of powers.  There has also been considerable political debate about the need for and effectiveness of mandatory minimum sentencing laws, which have been enacted in a number of jurisdictions, often as a result of public concerns regarding sentencing for particular offenses or in individual cases. 

During the last ten years, several states have established sentencing advisory councils in an effort to increase the amount of information and analysis available regarding sentencing matters.  One of the broader goals of this approach is to improve public confidence in the justice system. 

I.  Introduction

Australia’s six states, two mainland territories, and the federal jurisdiction each set out sentencing law frameworks in separate legislation:

  • Commonwealth/federal: Crimes Act 1914 (Cth), Part 1B[1]
  • New South Wales: Crimes (Sentencing Procedure) Act 1999 (NSW)[2]
  • Queensland: Penalties and Sentencing Act 1992 (Qld)[3]
  • South Australia: Criminal Law (Sentencing) Act 1988 (SA)[4]
  • Tasmania: Sentencing Act 1997 (Tas)[5]
  • Victoria: Sentencing Act 1991 (Vic)[6]
  • Western Australia: Sentencing Act 1995 (WA)[7]
  • Australian Capital Territory: Crimes (Sentencing) Act 2005 (ACT)[8]
  • Northern Territory: Sentencing Act (NT)[9]

The statutes typically contain the purposes and aims of sentencing; aggravating and mitigating factors that should be considered in sentencing (mostly derived from common law); and the types of sentences that may be imposed (including, in some cases, penalty scales that provide maximum penalties for different levels of offenses).[10]  Statutes defining the crimes or offenses of each jurisdiction establish maximum penalties, and in some cases minimum penalties or standard non-parole periods are prescribed. 

The sentencing statutes provide general rather than prescriptive guidance, and Australian judges maintain broad sentencing discretion.[11]  With the courts emphasizing individualized justice and generally favoring an approach known as “instinctive synthesis”[12]—an “exercise in which all relevant considerations are simultaneously unified, balanced, and weighed by the sentencing judge”[13]—concerns have been raised about sentencing inconsistencies.  As a result, political and scholarly debate has focused on mechanisms for reducing unjustified disparities in sentencing.  For example, in 2006, the Australian Law Reform Commission completed a substantial report on sentencing of federal offenders titled Same Crime, Same Time.[14]

Australia has not adopted the approach of appointed commissions developing standardized numerical sentencing guidelines for judges, such as the Federal Sentencing Guidelines in the United States or the United Kingdom’s sentencing guidelines.[15]  This option is generally seen by Australian courts as being overly restrictive on the exercise of judicial discretion and against the concept of individualized justice.  However, there has been some push for more prescriptive guidelines or mandatory minimum sentences in the political arena, as well as judicial debate on approaches to sentencing.[16]

This report provides information on three mechanisms aimed at achieving consistency in sentencing that have been implemented in some Australian jurisdictions: guideline judgments, mandatory minimum sentences in legislation (including examples for specific offenses), and sentencing councils.  Other mechanisms not covered in detail include: appellate review of sentences; provision of sentencing information to judges, such as sentencing statistics and databases; and judicial training and education.[17] 

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II.  Guideline Judgments

A.  Background

In the 1990s and early 2000s there was movement towards developing a system of guideline judgments in some Australian jurisdictions.  This approach was “most enthusiastically embraced” by the courts in New South Wales.[18] 

The first formal guideline judgment in Australia was issued by the New South Wales Court of Criminal Appeals in 1998 in the Jurisic case.[19]  Following that decision and a second guideline judgment issued by the Court in 1999, the Chief Justice of New South Wales advocated for the use of such judgments in a speech at a national conference of judges.  He emphasized the importance of judicial discretion and stated that “[g]uideline judgments are preferable to the constraints of mandatory minimum terms or grid sentencing.”[20]  He further stated that judges “must strive for both consistency and individualised justice” and clarified that:

Sentencing guidelines as promulgated by the NSW Court of Criminal Appeal are not binding in a formal sense. They are not precedents that must be followed. They represent a relevant indicator for the sentencing judge. They are not intended to be applied to every case as if they were binding rules. The sentencing judge retains his or her discretion both within the guidelines as expressed, but also the discretion to depart from them if the particular circumstances of the case justify such departure.[21]

Provisions specifically authorizing the courts to issue guideline judgments on their own initiative are currently included in the sentencing legislation of New South Wales, Queensland, Victoria, South Australia, and Western Australia.  In addition, in all these states except Western Australia the Attorney-General or other state entities can request such a judgment from the courts.  However, the courts have generally been reluctant to issue guideline judgments in particular instances.

There are no legislative provisions related to guideline judgments at the federal level.  In fact, in a 2001 decision in Wong v The Queen,[22] an appeal from a decision of the New South Wales Court of Criminal Appeal, the High Court of Australia “cast some doubt over the constitutional validity of certain forms of guideline judgments so far as they concern federal offenses.”[23]  In particular, the Court was concerned about the extent to which guideline judgments might bind future courts, as this would be akin to legislative action and therefore a breach of the Constitution.  The majority particularly considered that guideline judgments that set out numerical sentencing ranges for defined offenses would be unconstitutional.  Furthermore, the Court overruled the New South Wales court’s sentencing guidelines for the federal offense of drug importation on the basis that the weight given to the quantity of drugs involved meant that the guidelines were inconsistent with the sentencing considerations contained in the Crimes Act 1914 (Cth).[24] 

B.  Guideline Judgments in New South Wales

1.  Legislative Provisions

In 1999, following the Jurisic judgment, the state parliament enacted legislation enabling the Attorney-General to request guideline judgments from the Court of Criminal Appeals.[25]  Then, in 2001, further legislation was passed to “specifically authorize, and retrospectively protect, guideline judgments issued on the Court’s own motion.”[26]

Under the Crimes (Sentencing Procedure) Act 1999 (NSW), guideline judgments may include guidelines that apply generally, or “guidelines that apply to particular courts or classes of courts, to particular offences or classes of offences, to particular penalties or classes of penalties or to particular classes of offenders (but not to particular offenders).”[27] Guideline judgments made pursuant to an application from the Attorney-General may be given separately or included in any judgment of the Court that it considers appropriate.[28]  Guideline judgments may be issued on the court’s motion “in any proceedings considered appropriate by the Court, and whether or not it is necessary for the purpose of determining the proceedings.”[29]  In either situation, a guideline judgment may be reviewed, varied, or revoked in a subsequent guideline judgment of the Court.[30]  The statute allows the Senior Public Defender, the Director of Public Prosecutions, and the Attorney-General to appear at proceedings related to the giving of a guideline judgment.[31] 

In terms of the application of guideline judgments by the courts, the legislation states that these are to be considered in addition to any other matter that must be taken into account under the legislation, and do not “limit or derogate from any such requirement.”[32]  These requirements are set out in part 3, division 1 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and include matters such as aggravating and mitigating factors, guilty pleas, and penalty reductions for actions that facilitated the administration of justice or assisted law enforcement authorities.[33]

2.  Judgments Issued

Only six guideline judgments are currently applicable in New South Wales.[34]  These relate to the following subjects: dangerous driving causing death or grievous bodily harm;[35] armed robbery;[36] break, enter, and steal;[37] discounts for pleading guilty;[38] taking further offenses into account;[39] and high-range drink driving.[40]  As noted above, a guideline judgment issued in 1999 related to drug importation[41] was subsequently overruled by the federal High Court in Wong as being inconsistent with federal legislation.  No new guideline judgments have been issued in New South Wales since 2004.

In addition to the judgments referred to above, in 2001 the Attorney-General submitted an application for a guideline judgment related to basic and aggravated sexual assault separate from an appeal against the sentences handed down in a particular gang rape case.[42]  However, following public outcry at the sentences in that case, the New South Wales Parliament passed legislation that provided for a sentence of life imprisonment to be imposed for “aggravated sexual assault in company.”[43]  It appears that the Criminal Court of Appeals did not subsequently issue a guideline judgment on the matter.[44]

In 2002, the Attorney-General sought a guideline judgment with respect to sentencing for assaults on police officers.  The Court of Criminal Appeals declined to issue such a judgment.[45]  Subsequent amendments to the legislation included standard non-parole periods for such assaults.[46]

In November 2013, following the sentencing of an individual convicted of manslaughter in a so-called “king hit” or “one-punch” case, the Director of Public Prosecutions and Attorney-General indicated that, in addition to appealing the sentence, they would seek a guideline judgment from the Court of Criminal Appeals on sentencing for these types of “unprovoked” and “random attacks” by groups or individuals.[47]  However, the application for such a judgment was withdrawn when legislation introducing a mandatory minimum sentence for an aggravated offense of assault causing death was passed in the state parliament in January 2014.[48]

C.  Guideline Judgments in Other Jurisdictions

1.  Legislative Provisions

a.  Western Australia

Western Australia was the first state to enact provisions relating to guideline judgments when it passed sentencing legislation in 1995.  The current provisions in the Sentencing Act 1995 (WA) authorize the Court of Appeal to give a guideline judgment in any proceeding that the Court considers appropriate, regardless of whether it is necessary for the purpose of determining the proceeding.[49]  Section 6 of the Act, which sets out the principles of sentencing, states that in sentencing an offender a court “must take into account any relevant guidelines in a guideline judgment.”[50] 

Unlike the relevant state statutes authorizing guideline judgments, the Western Australia legislation does not make provision for the Attorney-General or other entities to apply to the Court for a guideline judgment.  In October 2013, as part of a statutory review of the sentencing legislation, the Department of the Attorney General did not recommend allowing such applications.[51]

b.  Victoria

In Victoria, provisions related to guideline judgments were enacted in 2003.  Part 2AA of the Sentencing Act 1991 (Vic) currently authorizes the Court of Appeal to give or review guideline judgments when considering an appeal against a sentence, either on its own initiative or on an application made by a party to the appeal.[52]   The legislation requires that the Court notify the Victoria Sentencing Advisory Council of its decision to give or review a guideline judgment and must have regard to any views that the Council expresses.[53]  In addition, the Director of Public Prosecutions and Victoria Legal Aid must be given the opportunity to make a submission on the matter.[54]  The Court must also have regard to “the need to promote consistency of approach in sentencing offenders” and “the need to promote public confidence in the criminal justice system.”[55]

c.  South Australia

Amendments to the  Criminal Law (Sentencing Act) 1988 (SA) passed in 2003 authorize the Full Court of the Supreme Court of South Australia to give or review a judgment establishing sentencing guidelines on its own initiative or on application by the Attorney General, Director of Public Productions, or Legal Service Commission.[56]  In addition to these entities, the Commissioner for Victims’ Rights, the Aboriginal Legal Rights Movement Inc., and other victim or offender rights organizations may appear in the relevant proceedings.[57] 

The legislation states that sentencing guidelines established by the Court may “indicate an appropriate range of penalties for a particular offence or offences of a particular class” and “indicate how particular aggravating or mitigating factors (or aggravating or mitigating factors of a particular kind) should be reflected in sentence.”[58]  A sentencing court should have regard to relevant guidelines, but is not bound to follow them if there is good reason for not doing so in the circumstances of the case.[59]

d.  Queensland

Provisions related to guideline judgments were not inserted into the Penalties and Sentencing Act 1992 (Qld) until 2010.  Part 2A of the legislation authorizes the Queensland Court of Appeal to give or review a guideline judgment either on its own initiative as part of a proceeding[60] or on the application of the Attorney-General, the director of public prosecutions, or the chief executive of Legal Aid Queensland.[61]  In considering whether to give or review a guideline judgment, the Court must consider “the need to promote consistency of approach in sentencing offenders” and “the need to promote public confidence in the criminal justice system.”[62] 

The legislation makes a distinction between issuing guideline judgments in relation to state and Commonwealth (i.e., federal) offenses.  In a reflection of the High Court’s ruling in Wong, guideline judgments for offenses under Commonwealth legislation must be consistent with Commonwealth law; “set out non-binding considerations to guide the future exercise of discretion and not purport to establish a rule of binding effect;” and “articulate principles to underpin the determination of a particular sentence and not state the expected decisions in a future proceeding.”[63]  In addition, such judgments may be issued only where the Court considers it necessary for the purposes of determining a proceeding.[64]

2.  Judgments Issued

While various state courts have discussed guidance or standards in relation to particular offenses or the application of sentencing considerations,[65] only one decision was found that was expressly considered a formal “guideline judgment,” being a Western Australia decision on the power to make a “spent conviction order.”[66]  A small number of cases were located in which the appellate court specifically rejected the option of delivering such a judgment.  For example, in 2004, the Supreme Court of South Australia declined to issue a guideline judgment related to sentencing for the offense of dangerous driving causing death, stating

[w]e understand the desire to identify a benchmark sentence and the sort of case it applies to. But this will not remove the need for the individual assessment of each case, and for the making of what is always a difficult decision. The circumstances of the offences in question vary too much for the fixing of a benchmark to be wise or helpful. And, we repeat, it has not been shown that we should act as proposed because courts are not observing appropriate standards and need to be given a standard to work from.[67]

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III.  Mandatory Minimum Sentences

A.  Background

Over the past two decades mandatory sentencing laws have been debated at various times in the different Australian jurisdictions.[68]  Some states have adopted minimum penalties for certain serious offenses in response to public concerns about perceived leniency or inconsistencies in sentencing.  Western Australia and the Northern Territory first introduced several minimum sentencing provisions in the 1990s, and such provisions have more recently also been enacted in New South Wales, Queensland, and Victoria.[69]  These may relate to both first-time and repeat offenders.  At the federal level, minimum sentences apply for certain aggravated people smuggling offenses.[70]

In New South Wales, in addition to there being some mandatory sentence provisions, a standard non-parole period approach was incorporated into the Crimes (Sentencing Procedure) Act 1999 (NSW) in 2003.[71]  This currently consists of a table setting out standard non-parole periods for thirty offenses.  The provisions governing the application of such periods state that “the standard non-parole period represents the non-parole period for an offence . . . that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.”[72]  A court must provide reasons, including each factor that it took into account, for setting a non-parole period that is longer or shorter than the standard period in the table.[73]  A judge must also record the reasons, including each mitigating factor taken into account, where he or she imposes a noncustodial sentence for any of the offenses listed.[74]  

Following a 2011 High Court decision that effectively reduced the significance of the New South Wales standard non-parole periods in setting sentences,[75] in 2013 the state parliament passed amendments that clarified the approach to applying the periods.[76]  In particular, the legislation now states that “[t]he standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.”[77]

B.  Minimum Sentences and Standard Non-Parole Periods for Particular Offenses

1.  Burglary/Larceny

In 1996, Western Australia introduced minimum sentences for repeat home burglary offenders.  The current provisions require that a minimum term of twelve months’ imprisonment be imposed on home burglary offenders for their third such offense.[78]

Certain burglary and home invasion offenses are included in the standard non-parole period table in the New South Wales legislation.  For example, for the most serious offense of breaking and entering into a house and committing an indictable offense in “specially aggravated” circumstances, a standard non-parole period of seven years applies.[79]  The maximum sentence is twenty-five years’ imprisonment.[80] 

As noted above, the New South Wales Court of Criminal Appeals has issued a guideline judgment with respect to “break, enter, and steal.”  This did not involve the Court setting a starting point for sentences or specifying a sentencing range.  Instead, it outlined relevant factors to be taken into account in sentencing for this offense.[81]

2.  Manslaughter

As indicated above, New South Wales recently passed legislation that introduces a mandatory minimum sentence of eight years’ imprisonment for the aggravated offense of assault causing death; where a person fatally punches someone while under the influence of drugs or alcohol.[82]

3.  Murder

A sentence of life imprisonment for murder is mandatory in Queensland, South Australia, and the Northern Territory.[83]  It is also mandatory in New South Wales where the victim is a police officer who was acting in the course of his or her duty, and this sentence is expressly stated as meaning the person’s natural life.[84]

In Queensland, a standard non-parole period of twenty years applies to single murders, with a period of thirty years applying to multiple murders and twenty-five years for murdering a police officer.[85] 

The New South Wales sentencing law also sets a standard non-parole period of twenty years for murder, or twenty-five years for the murder of a public official or a child under eighteen years of age.[86]  Where a person is sentenced to life imprisonment for murder, the Crimes Act 1900 (NSW) requires that the sentence be served “for the term of the person’s natural life.[87]

4.  Human Trafficking

Maximum penalties for slavery and human trafficking offenses are set out in the federal Criminal Code Act 1995 (Cth).[88]  As indicated above, there are separate offenses related to people smuggling that are subject to mandatory minimum sentences.  These offenses and sentences are set out in the Migration Act 1958 (Cth) and include a minimum term of five years’ imprisonment, with a three year non-parole period, for the aggravated offense of smuggling into Australia a group of five or more unlawful migrants.[89]  Higher sentences apply for repeat offenses and for subjecting the victim to cruel, inhuman, or degrading treatment.[90]

5.  Drug Trafficking

Drug trafficking offenses are prosecuted under the federal Criminal Code Act 1995 (Cth), which sets out only maximum penalties for the various offenses.[91]

The New South Wales sentencing legislation provides for standard non-parole periods for certain state-level drug offenses, including supplying a commercial quantity of a prohibited drug, for which the period is either ten years or fifteen years depending on the amount.[92]

6.  Rape

In New South Wales, as noted above, a maximum penalty of life imprisonment is available for aggravated sexual assault in company (i.e., gang rape), with a standard non-parole period of fifteen years applicable under the sentencing legislation.[93]  A person sentenced to life imprisonment for that offense must “serve that sentence for the term of the person’s natural life.”[94]  Other sexual and indecent assault offenses are also subject to standard non-parole periods of various lengths.  This includes sexual assault (i.e., sexual intercourse without consent), which has a maximum penalty of fourteen years imprisonment and a standard non-parole period of seven years.[95]

Queensland has a mandatory sentence of life imprisonment, with a twenty-year non-parole period, for repeat serious child sex offenders.[96]

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IV.  Sentencing Councils

Sentencing advisory bodies currently operate in four Australian states.  They are independent entities with functions related to monitoring and researching sentencing matters and providing information that could assist judges and/or policymakers as well as helping to educate the public.  In addition to the councils, in some states judicial branch or related entities may publish information on sentencing with the aim of improving consistency and public confidence in the justice system.[97] 

The first sentencing council was established in New South Wales in 2003.[98]  This was followed by similar entities being established in three other states: Victoria (2004), Tasmania (2010), and South Australia (2012).  Queensland’s Sentencing Advisory Council was created in 2010, but was subsequently abolished in 2012.[99]  In early 2013, it was reported that the Labor Party in Western Australia had put forward a plan for a sentencing council, which was opposed by the current state Attorney-General.[100] 

In Australia’s two mainland territories, a sentencing council proposal was part of the Labor Party’s platform during the 2008 Australian Capital Territory election campaign, but was not subsequently implemented.[101]  There were also government announcements in 2011 related to the establishment of a sentencing council in the Northern Territory,[102] but no such council has yet been established. 

A.    New South Wales

The New South Wales Sentencing Council consists of up to sixteen members, appointed by the Attorney-General for a fixed term, who are selected based on their experience and expertise in different aspects of the justice system.[103]  The functions of the Sentencing Council are set out in the Crimes (Sentencing Procedure) Act 1999 (NSW) and include

  • Advising the Attorney-General on offenses suitable for standard non-parole periods and their proposed lengths;
  • Advising the Attorney-General on matters that may be suitable for guideline judgments, as well as the submissions to be made in guideline proceedings;
  • Monitoring sentencing trends and practices and reporting to the Attorney-General on these annually;
  • Preparing research papers and reports on particular sentencing topics at the request of the Attorney-General; and
  • Educating the public about sentencing matters.[104]

To date, the Sentencing Council has published more than thirty papers or reports, including their annual reports on sentencing trends and practices.[105]

Separate from the Sentencing Council, the Judicial Commission of New South Wales was established by the Judicial Officers Act 1986 (NSW) and is part of the judicial branch.[106]  One of the Commission’s principal functions is to “assist the courts to achieve consistency in sentencing.”[107]  The Commission publishes the Sentencing Bench Book, among other resources aimed at assisting judicial officers to conduct trials.  This provides information on various sentencing principles and provisions and their application in court decisions, as well as on procedural matters.[108]

B.    Victoria

The Victoria Sentencing Advisory Council was established by the same amendment bill that resulted in the provisions related to guideline judgments.[109]  It consists of between eleven and fourteen members who must be appointed under eight “profile areas.”[110]  The functions of the Council are set out in the Sentencing Act 1991 and include

  • Providing statistical information on sentencing and information on current sentencing practices to members of the judiciary and “other interested persons;”
  • Conducting research and disseminating information on sentencing matters;
  • Gauging public opinion on sentencing matters;
  • Consulting with government departments and other bodies, as well as the general public, on sentencing matters; and
  • Advising the Attorney-General on sentencing matters.[111]

The Council has published around 100 reports and other documents, including on sentencing practices in relation to specific offenses, as well as nearly eighty “sentencing snapshots.”[112]

Similar to the situation in New South Wales, the Judicial College of Victoria, which provides continuing education programs for judicial officers, maintains the Victorian Sentencing Manual.  The aim of the Manual is to “promote consistency of approach by sentencers in the exercise of their discretion.”[113]

C.    Tasmania

The Tasmania Sentencing Advisory Council was established through administration action taken by the Attorney-General in 2010.  The appointment of such a council was recommended by the Tasmania Law Reform Institute in its 2008 report on sentencing issues.[114]  The Council’s functions are stated as follows:

  • To improve the quality and availability of information on sentencing in Tasmania
  • To undertake research on sentencing
  • To better inform the public on crime and sentencing issues
  • To gauge public opinion on sentencing matters
  • To provide policy advice to the Attorney-General
  • To provide advice to agencies, on request, in relation to penalties and sentencing matters.[115]

The Council has so far undertaken work in three major project areas: arson, assault on emergency workers, and sex offending.  Its website states that it is also in the process of developing a sentencing database.[116]

D. South Australia

The Sentencing Advisory Council of South Australia was established by the Attorney-General in 2012 and “aims to enhance the community’s knowledge and understanding on matters relating to sentencing and to bridge the gap between the courts and the community.”[117]  Its functions include

  • preparing research papers, advice and reports on particular subjects in connection with sentencing at the request of the Attorney-General;
  • making recommendations to the Attorney-General on sentencing related matters;
  • publishing information relating to sentencing;
  • educating the public about sentencing matters; and
  • obtaining the community’s views on sentencing matters.[118]

The Council’s current project relates to the “applicability and functionality of the ‘insanity defence’ ” contained in Part 8A of the Criminal Law Consolidation Act 1935 (SA).[119]

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V.  Conclusion

All Australian jurisdictions have grappled with issues related to reducing disparities in sentencing and enhancing public confidence in the justice system, while also maintaining judicial discretion and an individualized approach to sentencing.  These debates have led to various mechanisms being adopted over the past twenty years, ranging from legislatures setting mandatory sentences based on factors that may include public opinions regarding deterrence and punishment, to establishing sentencing councils that analyze and provide information on sentencing matters to the public, judiciary, and policymakers.  The option of an independent entity setting standardized sentencing guidelines or grids for multiple offenses has largely been rejected due to the restrictions these would impose on judicial discretion.  For a period in the late 1990s and early 2000s, it appeared that the judiciary itself might provide guidelines for certain offenses or sentencing options in the form of guideline judgments.  However, this approach was not widely adopted and its constitutionality has been questioned by the High Court.

The discussion regarding the balance between individualized justice and avoiding disparities in sentencing is ongoing.  Most recently, for example, New South Wales enacted mandatory minimum sentences for certain violent offenses following public outcry over perceived leniency in a particular case involving a “one punch” fatality.  This and other similar cases have again led to substantial debate around the country over the need for and effectiveness of mandatory sentencing laws.

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Kelly Buchanan
Chief, Foreign, Comparative, and
International Law Division I
April 2014

[1] Crimes Act 1914 (Cth) pt 1B (“Sentencing, imprisonment and release of federal offenders”),

[5] Sentencing Act 1997 (Tas), (click “browse a-z,” search for “sentencing”).

[8] Crimes (Sentencing) Act 2005 (ACT),

[10] Richard Edney & Mirko Bagaric, Australian Sentencing: Principles and Practice 5 (2007).

[11] See generally Arie Freiberg, Australia: Exercising Discretion in Sentencing Policy and Practice, 22(4) Fed. Sent’g Rep. 204 (Apr. 2010), available at

[12] See Edney & Bagaric, supra note 10, at 15–33.

[13] Sarah Krasnostein & Arie Freiberg, Pursuing Consistency in an Individualistic Sentencing Framework: If You Don’t Know Where You’re Going, How Do You Know When You’ve Got There?, 76 L. & Contemp. Probs. 265, 268 (2013),  See also Terry Hewton, Instinctive Synthesis, Structured Reasons, and Punishment Guidelines: Judicial Discretion in the Modern Sentencing Process, 31 Adelaide L. Rev. 79 (2010),

[14] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders (ALRC Report 103, 2006),

[15] Western Australia debated a sentencing matrix approach (similar to a grid system) in the late 1990s.  Some legislation to establish such a system was enacted, but was later repealed following widespread criticism.

[16] Hewton, supra note 13, at 88.  See also survey of sentencing guidelines in England and Wales, infra.

[17] Krasnostein & Freiberg, supra note 13, at 273–81.

[18] Edney & Bagaric, supra note 10, at 38.

[19] R v Jurisic (1998) 45 NSWLR 209.  For information on the discussion in New South Wales related to mandatory sentencing, sentencing guidelines, and guidelines judgments at the time of this decision, see Honor Figis, Mandatory and Guidelines Sentencing: Recent Developments (NSW Parliamentary Library Research Service, Briefing Paper No. 18/98),
A256ECF 0009D847/$File/18-98.pdf

[20] Spigelman CJ, Address to the National Conference of District and County Court Judges, Sentencing Guidelines Judgments (June 24, 1999), SCO_speech_spigelman_240699.

[21] Id.

[22] Wong v The Queen (2001) 207 CLR 584,

[23] Edney & Bagaric, supra note 10, at 38.

[24] Id.

[25] Criminal Procedure Amendment (Sentencing Guidelines) Act 1998 (NSW), sessionalview/sessional/act/1998-159.pdf.  

[26] Rowena Johns, Sentencing Law: A Review of Developments in 1998-2001, exec. summary (NSW Parliamentary Library Research Service, Briefing Paper No. 2/02), publications.nsf/0/0C05B81C080F963ACA256ECF000715D0/$File/02-02.pdf.  The relevant amendments were contained in the Criminal Legislation Amendment Act 2001 (NSW) sch 5, sessionalview/sessional/act/2001-117.pdf.

[27] Crimes (Sentencing Procedure) Act 1999 (NSW) s 36.

[28] Id. s 37(5).

[29] Id. s 37A(1).

[30] Id. s 37B.

[31] Id. ss 38–39A.

[32] Id. s 42A.

[33] Id. pt 3 div 1.

[34] Sentencing Guideline Judgments, Supreme Court of New South Wales, http://www.supremecourt.lawlink.

(last updated Apr. 24, 2012); Judicial Commission of New South Wales, Sentencing Bench Book 13-600 (Sentencing Guidelines), (this section last updated Sept. 2006).

[35] R v Jurisic (1998) 45 NSWLR 209.  The guideline judgment was later reformulated in R v Whyte (2002) 55 NSWLR 252,

[37] Re Attorney-General’s Application [No 1] under s 25 of the Criminal Procedure Act, R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327,

[38] R v Thomson; R v Houlton (2000) 49 NSWLR 383, 309.html.  See also Judicial Commission of New South Wales, supra note 34, 11-510 (Guideline for guilty plea discount),

[39] Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146,  See also Judicial Commission of New South Wales, supra note 34, 13-210 (Guideline judgment for Form 1 sentencing), http://www.judcom.

[40] Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305,

[41] R v Wong; R v Leung (1999) 48 NSWLR 340,

[42] See NSW Parliamentary Debates, Legislative Assembly, 6 Sept. 2001, 16511, http://www.parliament.nsw.

[43] Crimes Amendment (Aggravated Sexual Assault in Company) Act 2001 (NSW),

[44]See R v Aem; R v Kem; R v MM [2002] NSWCCA 58,

[45] Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 (2002) 137 A Crim R 196,

[46] Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW), http://www.

[47] NSW AG Seeks Guideline on Loveridge Case, The Sydney Morning Herald (Nov. 21, 2013),; Louise Hall, Thomas Kelly Death: Unfair to Hear Kieran Loveridge Appeal at Same Time as Considering New Sentencing Guidelines, Lawyer Says, The Sydney Morning Herald (Dec. 19, 2013), au/nsw/thomas-kelly-death-unfair-to-hear-kieren-loveridge-appeal-at-same-time-as-considering-new-sentencing-guidelines-lawyer-says-20131219-2znfo.html

[48] Louise Hall, NSW Pulls Request for New Sentencing Guidelines for Random Attacks, The Sydney Morning Herald (Feb. 13, 2014), also Mandatory Minimum Sentences Introduced to Tackle Drug and Alcohol Violence, News Watch Blog, State Library of New South Wales (Feb. 10, 2014),   The new sentences were contained in the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014, act/2014-2.pdf.

[49] Sentencing Act 1995 (WA) s 143.

[50] Id. s 6(5).

[51] Department of the Attorney General, Statutory Review of the Sentencing Act 1995 (WA) 25 (Oct. 2013),

[52] Sentencing Act 1991 (Vic) s 6AB.  For a discussion of the provisions, including comparisons with guideline judgments in other jurisdictions, see Beth Crilly, Guideline Judgments in Victoria, 31(1) Monash U. L. Rev. 37 (2005),

[53] Sentencing Act 1991 (Vic) ss 6AD(a) & 6AE(c).

[54] Id. s 6AD(b).

[55] Id. s 6AE(a) & (b).

[56] Criminal Law (Sentencing Act) 1988 (SA) s 29B(1).  For background information on the amendments, see Michael Atkinson, Sentencing Guidelines (Cabinet Paper submitted May 1, 2002, approved May 13, 2002),

[57] Criminal Law (Sentencing Act) 1988 (SA) s 29B(2).

[58] Id. s 29A(3).

[59] Id. s 29A(5).

[60] Penalties and Sentencing Act 1992 (Qld) s 15AD.

[61] Id. s 15AE.

[62] Id. s 15AH.

[63] Id. s 15AC.

[64] Id. ss 15AD(2) & 15AE(6).

[65] See, e.g., R v Payne [2004] SASC 160, also McMurdo J., Address to the Queensland Magistrates State Conference, Sentencing, 33 QldJSchol (2011),

[66] R v Tognini [2000] WASCA 31,  A spent conviction order allows a person to not disclose, e.g., to an employer, that he or she has been charged with and convicted of an offense.  See What Spent Conviction Orders Do, Legal Aid Western Australia,
(last modified Nov. 10, 2010).

[67] R v Place (2002) 81 SASCR 395, at [66],

[68] See generally Lenny Roth, Mandatory Sentencing Laws (NSW Parliamentary Research Service, Jan. 2014),

[69] Id. at 1.

[70] See Andrew Trotter & Matt Garozza, Mandatory Sentencing for People Smuggling: Issues of Law and Policy, 36(2) Melbourne U. L. Rev. 553 (2012),

[71] Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW).  See Judicial Commission of New South Wales, supra note 34, 7-890, sentencing/standard_non-parole_period_offences.html.

[72] Crimes (Sentencing Procedure) Act 1999 (NSW) s 54A(2).

[73] Id. s 54B(3).

[74] Id. s 54C(1).

[75] Muldrock v The Queen (2011) 244 CLR 120,

[76] Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013 (NSW),

[77] Crimes (Sentencing Procedure) Act 1999 (NSW) s 54B(2).

[79] Crimes (Sentencing Procedure) Act 1999 (NSW) pt 4 div 1A Table item 13.

[80] Id. s 112.

[81] See Judicial Commission of New South Wales, supra note 34, 17-020, publications/benchbks/sentencing/break_and_enter_offences.html#p17-020.

[82] Crimes Act 1900 (NSW) s 25B.

[83] See Roth, supra note 68, at 2 & 5.

[86] Crimes (Sentencing Procedure) Act 1999 (NSW) pt 4 div 1A Table items 1A, 1B & 1.

[87] Crimes Act 1900 (NSW) s 19A.

[88] Criminal Code Act 1995 (Cth) divs 270 & 271,

[89] Migration Act 1958 (Cth) ss 233C, 236B(3)(c) & (4)(a), Roth, supra note 68, at 12–13.

[90] Id. ss 233B, 236B(3)(a) & (4)(a)–(b).

[91] Criminal Code Act 1995 (Cth) pt 9.1.

[92] Crimes (Sentencing Procedure) Act 1999 (NSW) pt 4 div 1A Table items 18 & 19.

[93] Crimes Act 1900 (NSW) s 61JA; Crimes (Sentencing Procedure) Act 1999 (NSW) pt 4 div 1A Table item 9.

[94] Crimes Act 1900 (NSW) s 61JA(2).

[95] Crimes Act 1900 (NSW) s 61I; Crimes (Sentencing Procedure) Act 1999 (NSW) pt 4 div 1A Table item 7.

[96] Penalties and Sentences Act 1992 (Qld) pt 9B.  The relevant provisions were inserted by the Criminal Law (Two Strike Child Sex Offenders) Amendment Act 2012 (Qld).

[97] In addition to those cited below, see Queensland Supreme and District Courts Bench Book, (last updated Oct. 24, 2013).

[98] What We Do, Sentencing Council (NSW), functions.html (last updated Aug. 24, 2012).

[101] Lorana Bartels, A Sentencing Council for the ACT?, 38(1) AltLJ 55 (2013),

[102] Press Release, Delia Lawrie, New Sentencing Council for the Territory (Aug. 26, 2011), http://www.territory

[103] Crimes (Sentencing Procedure) Act 1999 (NSW) s 100I(2).

[104] Id. s 100J.

[105] Reports and Publications, Sentencing Council (NSW), sentencing/publications.html (last updated Dec. 16, 2013).

[106] Our History, Judicial Commission of New South Wales, (last visited Apr. 4, 2014).

[107] Welcome to the Judicial Commission of New South Wales, Judicial Commission of New South Wales, (last visited Apr. 4, 2014).

[108] Judicial Commission of New South Wales, Sentencing Bench Book, publications/benchbks/sentencing/index.html (last updated Mar. 2014).

[109] Functions of the Council, Sentencing Advisory Council (Vic), about-us/council/functions-council (last updated June 14, 2011).

[110] The Council, Sentencing Advisory Council (Vic), (last updated Oct. 18, 2013).

[111] Sentencing Act 1991 (Vic) s 108C.

[112] Publications by Topic, Sentencing Advisory Council (Vic), publications/category (last updated Feb. 24, 2014).

[113] Judicial College of Victoria, Victorian Sentencing Manual (Introduction), http://www.judicialcollege. (last visited Apr. 4, 2014).

[114] Tasmania Law Reform Institute, Sentencing (Final Report No. 11, June 2008), data/assets/pdf_file/0004/283810/completeA4.pdf.

[115] The Sentencing Advisory Council, Sentencing Advisory Council (Tas), (last updated Aug. 11, 2013).

[116] Projects, Sentencing Advisory Council (Tas), (last updated July 25, 2013).

[117] Sentencing Advisory Council of South Australia, Attorney-General’s Department, au/about-agd/what-we-do/services-government/sentencing-advisory-council-south-australia (last updated Aug. 7, 2013).

[118] Id.

[119] Current Project of the Sentencing Advisory Council, Attorney-General’s Department, (last updated July 31, 2013).

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Last Updated: 12/30/2020