Sentencing guidelines in the common law countries of Australia, England and Wales, India, South Africa, and Uganda vary significantly. England and Wales have a Sentencing Council that develops offense-specific guidelines that the courts must follow, while Uganda’s Supreme Court has developed guidelines that are advisory only. In India and Australia, no formal guidelines exist and judges retain wide discretion in sentencing, but both countries have mechanisms in place to provide general guidance—in Australia through state legislation and in India through a series of court decisions that identify relevant sentencing factors.
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In Australia, all 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. There has 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.
England and Wales
The English justice system considers that sentences imposed on offenders should reflect the crime committed and be proportionate to the seriousness of the offense. It has a Sentencing Council that is responsible for producing, issuing, and reviewing guidance to the courts on what factors should be considered when sentencing offenders and the range of sentences that should be awarded, among other things. The guidance should be followed, unless it is not in the interests of justice to do so. The aim of the guidance is to ensure consistency in sentencing across the country.
In India neither the legislature nor the judiciary has issued structured sentencing guidelines. Several governmental committees have pointed to the need to adopt such guidelines in order to minimize uncertainty in awarding sentences. The higher courts, recognizing the absence of such guidelines, have provided judicial guidance in the form of principles and factors that courts must take into account while exercising discretion in sentencing.
In South Africa, sentencing is considered the primary prerogative of trial courts and they enjoy wide discretion to determine the type and severity of a sentence on a case-by-case basis. In doing so, they follow judge-made, broad sentencing principles known as the “triad of Zinn,” which require that, when making sentencing determinations, judges consider three things: the gravity of the offense, the circumstances of the offender, and public interest.
The Chief Justice of the Supreme Court of Uganda recently issued advisory Sentencing Guidelines aimed at bringing uniformity, consistency, and transparency to the sentencing process in the country by establishing sentencing ranges and other sentencing guides. Although the Sentencing Guidelines cover only a limited number of offenses at present, they do provide general sentencing principles and various sentencing factors that are applicable to offenses not specifically covered.
Among the notable aspects of the Sentencing Guidelines is the emphasis on victim and community engagement in the sentencing process, restorative justice, and the promotion of noncustodial sentences.
Last Updated: 07/24/2020