Confining Judicial Discretion

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This article is a topic within the subject Crime & the Criminal Process.


Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 1106-1133; 1138-1151.

Confining Judicial Discretion

[1] There is also an ongoing power struggle concerning judicial discretion in sentencing, between the judiciary and the legislature.

  • In recent time, many statutes have been introduced by Parliament for the purposes of regulating and constraining this discretion, such as the Crimes (Sentencing Procedure) Act 1999.
  • Another example is the current drive to impose a mandatory life sentence upon those who murder a police officer.
  • However, the judiciary has continued its attempt to maintain sentencing discretion to provide individualised justice - judges are reading down the constraining legislative provisions and ameliorating the harshness of sentencing laws.[2].

Arguments against judicial discretion include:

  • Judges are not elected and thus not held accountable in the same manner as Parliament, therefore not adequately representing the wants of the people.
  • The separation of powers requires that the judiciary merely apply the laws and intention of the legislature.

Arguments for judicial discretion include:

  • On the flipside of the separation of powers concept is that the legislature could be viewed as stepping into the territory of the judicial function.
  • In addition, it should be recognised that democracy is a blunt instrument, with the demonstration of popular stance (elections) only occurring every 4 years and providing sufficient scope for a government to do significant damage in between.

Statistics, sentencing councils and so on also constrain judicial discretion and promote consistency etc.

Provision of Statistical Information

[3] The Judicial Information Research System (JIRS) is the sentencing information system in NSW, providing statistical information in sentence distributions. It provides graphs, consideration of variables such as guilty plea, prior convictions, age etc.

  • The purpose of statistical information is to promote sentence consistency, necessary under the rule of law. It moves away from leniency and punitiveness.
  • However, it may push judges/magistrates towards median sentences rather than the application of correct sentencing principles. It thus undermines the notion of individualised justice.[4]

In Bloomfield,[5] the court offered guidance on interpretation and use of sentencing statistics:

  • Basically, statistics may be you used but they can only go so far. A court must recognise that each case is individual and turns on its own facts.
  • Statistics may provide a general indication of sentencing trends and an appropriate range, enabling the judge to see what is an excessive and what is a lenient sentence.

Sentencing Councils

[6] In 2003, NSW government established a Sentencing Council.

  • The members were two retired judges, the DPP and others.
  • Its functions were to conduct research, to consider areas suitable for guideline judgements, etc

Legislative Constraint

[7] Judicial discretion before 2002 was quite strong. Under the common law, sentencing required the court to consider all relevant objective and subjective factors.

  • Objective factors: related to the crime itself.
  • Subjective factors: related to the particular offender.

In 2002, a long list of mitigating and aggravating factors was introduced into the Crimes (Sentencing Procedure) Act 1999 as s 21A (Uni Study Guides notes: the list is too big to put in this page. Please follow the link).

  • s 21A is not exhaustive - the settled common law principles in sentencing still apply however.[8]
  • The statutory discount principle for entering a plea of guilty is found in s 22 of the Crimes (Sentencing Procedure) Act 1999, which allows a lesser penalty considering both the plea itself and the time at which it was made.
    • Under the Criminal Case Conferencing Trial Act 2008, the maximum discount available for a plea entered before committal is 25%, while one entered after committal is generally capped at 12.5% (unless exceptional grounds are satisfied).
  • A discount for assistance to authorities is also given statutory force in s 23.
  • Note that good character etc can’t be taken into account as mitigating factors where they helped in the commission of child sex offences.

Warner critiques an 'offence specific' approach:[9]

  • It is unnecessary for the NSW government to legislate on the factors to be taken into account, as the common law approach already developed and addressed such factors.
  • In addition, it is unprincipled to make offence-specific limits for certain mitigatory factors, with the court’s approach unlikely to give weight to good character etc in any case where such factors aided the commission of the offence.

In Georgopoulous,[10] the Court critiqued this concept of Aggravating/mitigating factors as unnecessary and confusing:

  • Aggravating/mitigating factors changes have 'introduced artificial, abstruse and technical considerations into the process of sentencing which add considerably to the uncertainty and complexity of the process without any discernible countervailing advantage in either transparency or outcomes. Sentencing is a difficult task without the need to negotiate a logical minefield that has already produced … unnecessary jurisprudence.'

Truth in Sentencing

[11] The political concept of 'truth in sentencing' involved the movement to the current sentencing system where the judge sets the head sentence (the absolute maximum period of penal intervention), and the non-parole period (the portion of that penal intervention that must be spent in custody) is legislatively at least three quarters of that head sentence (s 44, Crimes (Sentencing Procedure) Act 1999 (NSW)).

  • Also, there are no longer remissions (reduction in non-parole period) for good behaviour.
  • Before 1989, judges would set a head sentence, then freely choose a non-parole period, and remissions were available for good behaviour.
  • This is detrimental for the following reasons:
    • Research indicates that this has led to a significant increase in prison terms and the prison population.
  • Whilst it is recognised that there may have been a reduction in the crime rate as a result, it is difficult to justify this policy choice given the high cost of the new prison infrastructure that was required.
  • Parole is now only a small proportion of the full sentence, and impedes the reintegration into the community that was previously possible.

Both major parties have campaigned on ‘more police’/’increased penalties’/’victims rights’ in the leadup to the election, with promises of ‘three strikes and you’re out’ life penalty for serious crime, grid sentencing, and so on.

  • In response to the bidding war in NSW Parliament, and the potential and widely feared move towards grid sentencing (where judges have to use a strict 'chart' to determine sentences), the Supreme Court introduced guideline judgments.

Guideline Judgments

[12] Guideline judgments are judgments which are meant to provide rough guidelines for future judges as to how to impose sentences for certain offences. Guideline judgments establish a starting point in terms of a general range of sentence, and recognise that additional aggravating/mitigating factors would determine the actual sentence. The concept of guideline judgments was invented in Jurisic, where the first guideline judgment was handed down:

  • Inconsistency is a form of injustice. Guideline judgments (which will not be overlooked by virtue of that formal title) will ensure consistency.
  • Such guidelines are to be indicative only; not binding precedents.
  • They will structure discretion, and they are more flexible than statutory guidelines.

Guideline judgements were considered appropriate to reinforce public confidence in the administration of justice and the process of sentencing. Judicial guidelines were seen as far more suitable than statutory guidelines (such as grid sentencing), given the greater flexibility for the judge to respond to all relevant circumstances.

  • Division 4 of the Crimes (Sentencing Procedure) Act 1999 (introduced after Jurisic) deals with guideline judgments.
    • Guideline judgments may be made by the Court of Criminal Appeal.[13] They can also be made on application by the Attorney-General independently of any case.[14]
  • The Senior Public Defender, DPP and Attorney General may intervene.[15]
  • Legislation does not limit the discretion of the court.[16]

Guideline Judgments After Jurisic

[17] Guidelines judgments have been given for offences such as:

  • Armed robbery - 'unprofessional' armed robbery.[18]
  • Drug couriers – for drug couriers and people low in the drug hierarchy.[19]
  • Guilty plea discount – sentencing judges were to explicitly state that a guilty plea was taken into account, and encouraged to quantify the discount (e.g. 10%, 25% etc.).[20]
  • High range PCA (Prescribed Concentration of Alcohol) - general sentencing principles were handed down because previous sentences were inconsistent and lenient, and the offence is common.

Application for guideline judgments for the offences of breaking and entering, as well as the assault of a police officer, were declined by the court on the basis that there was no evidence of widespread leniency by the court when imposing sentences for those offenders.[21]

High Court's Response to Guideline Judgments

[22] In Wong,[23] the High Court provided a mixed ruling on guideline judgments, making some of them invalid (because the courts were overstepping their jurisdiction and doing the role of the parliament).

  • Whilst coming from a principled approach, it was somewhat misguided in failing to appreciate the strong political pressures faced by state governments to increase penalties and further reform sentencing.
  • As a response to Wong, guideline judgement were then put on a statutory footing: under the Crimes (Sentencing Procedure) Act 1999, a court is required to consider a guideline judgement in sentencing where applicable.

The Court of Criminal Appeal stated the benefits of guideline judgments in Whyte:[24]

  • Individualised justice - guideline judgments provide general considerations to the judge which are to be taken into consideration when imposing a sentence. The judge then uses those consideration to impose and individualised sentence, based on the particular circumstances, rather than be bound by a chart.
  • Consistency - guideline judgments enforce consistency whilst maintaining flexibility, thus reducing the drive for grid sentencing and other strict statutory guidelines.
  • Public confidence - guideline judgments reinforce public confidence in the administration of justice and the process of sentencing, countering the belief that criminal sentencing is determined by which judge happens to hear the case.

Other benefits include:

  • Guideline judgments are generally very detailed, sourcing information such as statistics from NSW BOCSAR, social and economic consequences of sentencing, and the like to provide the best possible indication.
  • Guideline judgments recognise and respond to the significant political pressures behind criminal sentencing.

Standard Non-Parole Periods

[25] Sentencing policy again became important in the lead-up to the 2003 election in NSW, and in response, the NSW government enacted a scheme of standard non-parole periods for 21 serious offences (now expanded to 24 offences.

  • A table of standard non-parole periods is provided in the Table to Div 1A Standard Non-Parole Periods in s 54A of the Crimes (Sentencing and Procedure) Act 1999.
  • Standard non-parole periods are prescriptive, but not mandatory.
  • The periods given were significantly higher than the prior average minimum prison sentence (ie, non-parole) for those offences.

There was some confusion about how to determine standard non-parole periods. This was considered in Way:[26]

  1. Standard non parole periods only apply where:
    1. There has not been a plea of guilty (ie, a trial was held),
    2. The particular offence is in the 'middle of the range of objective seriousness' (ie, a carjacking case which is serious enough to be in the middle range for carjacking).
      • In determining the objective seriousness, the court also considers matters of motivation, mental state, intellectual disability, duress etc (as long as they were relevant to the commission of the offence).
    3. There are no aggravating or mitigating factors that provide a reason for not setting the standard non-parole period.
  2. When the standard non-parole period does not apply, the judge has discretion to impose a sentence, but the standard non-parole period should be kept in mind as a guideline (it is the benchmark).
  3. A standard non-parole period is not to be used as a ‘starting point’ which can be adjusted upwards or downwards by aggravating/mitigating factors.

The creation of standard non-parole period has led to a big increase in sentences.

Preventive Detention

[27] Preventive detention is when a person retained in custody after they satisfied their sentence because there is a fear that s/he will commit a crime. It was examined in Kable v DPP:[28]

  • Facts: legislation was created to enable preventive detention specifically for the purposes of containing the defendant.
  • Held: the legislation was struck down on the basis that it made the judiciary act as an executive arm in a manner incompatible with a Chapter 3 court (see the LAWS1141 - Principles of Public Law topic, Separation of Judicial Power). Note that the issue of the validity of preventive detention was not directly addressed, since the case was decided on the incompatibility of the court's powers rather than an issue regarding the right to freedom etc.

Preventive detention was then addressed in Fardon v Attorney General (Qld):[29]

  • Facts: a ‘Kable-proof' legislation was enacted (where the court does not act inconsistently with its powers) in order to detain sexual predators indefinitely or if there is an 'unacceptable risk that the prisoner would commit a serious sexual offence'.
  • Held: the legislation is valid because this time it was put down differently: it was not directed at one person but a class of persons, because the court is required to exercise judicial and not executive power, using rules of evidence, judicial discretion and because the Attorney-General needs to meet a high standard of proof. this time.

After the decision in Fardon (which was in QLD), preventive detention started coming up all around Australia for a variety of scenarios (detention of illegal immigrants, quarantine, detenion of the mentally ill and detention of dangerous criminals).

  • However, the Kable concept that such legislation is invalid as it is repugnant to the judicial function have recently been applied.[30] This was explored in South Australia v Totani:[31]
  • Facts: legislation was passed to enable preventive detention against members of organised crime groups (this was a part of the 'bikie laws', in response to the moral panic about bikies).
  • Held: the power given to the magistrate by the legislation is executive in nature - it requires it to make a determination without giving the magistrate any considerations to follow (which would make this a judicial discretion exercise instead). The magistrate also does not have to give a reason for the decision, the decision cannot be questioned, and it is made without the magistrate examining the defendant. It is therefore executive in nature and invalid as per incompatibility with the concept of separation of judicial power. This destroys the integrity of the judicial system.

Selective Incapacitation

[32] Selective incapacitation is the use of longer prison sentences against particular repeat offenders based on a prediction that they will offend again. There is only limited evidence which suggests that it is effective.

  • The ‘gap’ (which the repeat offenders leave when they are imprisoned) is quickly filled by other offenders, and the attempt to predict future offences is both ethically wrong as well as practically very hard.

Mandatory Sentencing

[33] Some jurisdictions have mandatory sentencing for certain offences, meaning that the court does not have discretion but must impose the sentence prescribed. There is currently no mandatory sentencing in NSW. Examples of mandatory sentencing schemes include:

  • WA's 'three strikes' burglary laws - on a defendant's third burglary conviction, a minimum 12 month imprisonment applies.
    • Was found to be largely ineffective a deterrent because it mostly impacted offenders convicted of relatively trivial offences.[34]
  • NT have a minimum sentence of 3 month imprisonment for second convictions and 12 months for third time convictions for a variety of property offences.
    • Failed to deter, selectively incapacitate or reduce crime. Also, had adverse effects in the form of bringing about behind the scenes negotiations between parties (decreased visibility and transparency), very expensive, bail being refused more often, disproportionately targeted Aboriginal people and young people for very minor offences, and most importantly.[35]

There are mandatory sentences for a few federal offences regarding immigration.

Equal Operation of the Law

[36] The government has tried to defend itself against critics of mandatory sentences with the argument that it ensures the 'equal operation of the law'. However, research shows that such claims are unfounded.

  • Mandatory sentences discriminate on geographical grounds (since they are only imposed in certain jurisdictions).
  • They do not equally apply to all crimes (eg, no mandatory sentencing for white collar crime). There is a racial bias in crimes selected (ie, the crimes where mandatory sentencing is introduced are the crimes committed by minorities).
    • Story of Alan Bond, who was imprisoned for about 4 years for over a billion dollars worth of fraud, whereas an aboriginal man fell victim to a 12 month mandatory sentence for stealing $23 worth of food.
  • The racial bias in crimes selected is exacerbated by selective police and prosecution.
  • There is unequal access to diversionary schemes to indigenous youth.
  • In general, equal application of law to unequals (ie, same law for the rich and the poor) does not produce equal results.
    • Example of prohibiting people (rich and poor alike) to sleep on park benches - clearly only affects the poor although ostensibly is an equal operation of the law.

Challenges to Mandatory Sentencing

[37] The ALRC urged the government to dispense with mandatory sentencing. The main criticisms were summed up as:[38]

  • Escalate sentence severity.
  • Unable to take account of particular circumstances (thus against the principle of individualised justice).
  • Shift discretion from judges to the police.
  • Fail to deter criminal behaviour.
  • Lead to inconsistencies.
  • Profoundly discriminatory.
  • Abrogate human right standards (eg, principle of proportionality and that sentences can be reviewed by an appellate court).

In Palling and Corfield,[39]they High court found that mandatory sentences are ‘unusual’ ‘undesirable’ but not unconstitutional. No judicial function invaded where the judge must apply the penalty designated by law.


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Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 1106-7.
  2. Arie Freiberg, 'Guerrillas in our midst?' in M Brown and J Pratt (eds), Dangerous Offenders (2000) in Textbook, pp 1106-1107.
  3. Textbook, pp. 1107-8.
  4. AEM Snr; KEM; MM [2002] NSWCCA 58.
  5. (1998) 44 NSWLR 734.
  6. Textbook, pp. 1108-9.
  7. Textbook, p. 1109.
  8. Way [2004] NSWCCA 131.
  9. Kate Warner, 'Sentencing Review 2008-2009', (2010) 34 Crim LJ 16 in Textbook, pp. 1113-4.
  10. [2010] NSWCCA 246.
  11. Textbook, pp. 1114-6.
  12. Textbook, pp. 1116-8.
  13. Crimes (Sentencing Procedure) Act 1999 (NSW), s 37.
  14. Crimes (Sentencing Procedure) Act 1999 (NSW), s 37A.
  15. Crimes (Sentencing Procedure) Act 1999 (NSW), s 38, 39, 39A.
  16. Crimes (Sentencing Procedure) Act 1999 (NSW), s 40.
  17. Textbook, pp. 11118-21.
  18. Henry [1999] NSWCCA 111.
  19. Wang and Leung [1999] NSWCCA 420.
  20. Thomans and Houlton (2000) 49 NSWLR 389.
  21. Ponfield [1999] NSWCCA 435; Attorney General's Application under s 37 of the Crimes (Sentencing and Procedure) Act 1999 No 2 of the 2002 [2002] NSWCCA 515.
  22. Kate Warner 'The Role of Guideline Judgments in the Law and Oder Debate in Australia' (2003) 27 Crim LJ 1 in Textbook, pp. 1122-4.
  23. Wong v The Queen (2001) 207 CLR 584.
  24. [2002] NSWCCA 343.
  25. Textbook, pp. 1127- 33.
  26. [2004] NSWCCA 131.
  27. Textbook, pp. 1138-46.
  28. (1996) 189 CLR 51.
  29. (2004) 210 ALR 50.
  30. International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 51.
  31. [2010] HCA 39.
  32. Textbook, pp. 1146-7.
  33. Textbook, pp. 1147-8.
  34. N Morgan, 'Mandatory Sentences in Australia: Where Have We Been and Where Are We Going' (2000) 23(3) Crim LJ 164 in Textbook, p. 1147.
  35. D Johnson and G Zdenkowski, Mandatory Injustice: Compulsory Imprisonment in the Northern Territory (2000) in Textbook, pp. 1147-8.
  36. Textbook, pp. 1148-9.
  37. Textbook, pp. 1149-51.
  38. ALRC, Discussion Paper No 70 (2005) in Textbook, p. 1149.
  39. (1970) 123 CLR 52.
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