ños Sinaloa/1 de Culiacán! 2 Porcentaje 2/

If the instinctive synthesis approach describes the method by which judicial

officers are to reach an appropriate sentence, the principle of individualised justice

391 _{Ibid 388.}

392 _{Discussed further in Chapter Three are the federal Sentencing Guidelines established by the United}

States Sentencing Commission see http://www.ussc.gov; Minnesota Sentencing Guidelines see

http://mn.gov/sentencing-guidelines/; Sentencing Guidelines established by the Sentencing Council in the United Kingdom see http://sentencingcouncil.judiciary.gov.uk/sentencing-guidelines.htm.

may be described as the goal; Chief Justice Gleeson describing it as the ‘Holy Grail’.393 _{Internationally, the discourse of new penology has classified}

individualised justice as ‘individualized welfare justice’.394 _{Individualised justice}

recognises that the offender, the offence and the broader circumstances of the case are each unique and the sentencing judge needs to tailor the sentence to the

individual offender.395 _{In Australia, this approach to sentencing has also been}

called ‘individualised sentencing’.396

The High Court returned to the language of ‘individualised justice’ in 2013 observing,

[t]he administration of criminal law involves individualised justice,the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion.397

In the same year in the case of Bugmy v The Queen,398 _{the High Court addressed the}

function of individualised justice in sentencing holding that taking systematic discrimination against Aboriginal Australians into account would be contrary to individualised justice.399

In 2006, the ALRC in its Same Crime, Same Time Report strongly supported an individualized justice approach to federal sentencing in Australia.400 _{The ALRC}

described the principle as a requirement that the sentencing court ‘impose a sentence that is just and appropriate in all the circumstances of the particular case.’401 _{In recognition of the role of individualised justice the ALRC stated:}

Courts have consistently recognised the importance of this sentencing

principle. For example, in Kable v Director of Public Prosecutions, Mahoney ACJ stated that ‘if justice is not individual, it is nothing’. Individualised justice can be

393 _{See, The Hon A M Gleeson, 'Individualised Justice - The Holy Grail' (1995) 69 Australian Law}

Journal 421.

394 _{Cyrus Tata ‘Sentencing as Craftwork and the Binary Epistemologies of the Discretionary Decision}

Process’ (2007) 16(3) Social & Legal Studies 425, 429. Garland lists individualised sentencing as one of the ‘central planks’ in the welfare/correctionalist model, see David Garland, The Culture of Control (The University of Chicago Press, 2001) 27-28.

395 _{Law Reform Commission, Sentencing: Procedure, Discussion Paper No 29 (1987) 16.}

396 _{See, eg, Law Reform Commission, Sentencing: Procedure, Discussion Paper No 29 (1987) 16.} 397_{Elias v The Queen (2013) 248 CLR 483, 494-495 (French CJ, Hayne, Kiefel, Bell and Keane JJ). Cited}

with approval in DPP v Dalgliesh (A Pseudonym) (2017) 91 ALJR 1063, 1072.

398 _{(2013) 249 CLR 571.}

399 _{Ibid 594 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).}

400 _{Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders,}

Report No 103 (2006) 114, 155-157; 542

attained only if a judicial officer possesses a broad sentencing discretion that enables him or her to consider and balance multiple facts and circumstances when sentencing an offender.402

The ALRC recommended that the principle of individualized justice should be acknowledged in federal legislation as one of five fundamental principles that must be applied in sentencing.403

The principle of individualised justice has not been widely mentioned by name in sentencing remarks, but it is a principle that embodies an approach that judicial officers have recognised and defended.404 _{In 2008, Spigelman CJ of the New South}

Wales Court of Criminal Appeal in his keynote address to a national sentencing conference commented:

The principle of individualised justice, depends on the elementary proposition that the wide variation of circumstances of both the offence and of the offender must always be taken into account, so that the sentence is appropriate to the individual case. Experience over the centuries has led to the clear conclusion that this task is best undertaken by the exercise of a broad discretion by individual judges.405

In 2013, the plurality of the High Court in Elias v The Queen406 _expressly

acknowledged the role of individualized justice in the sentencing process. French CJ, Hayne, Kiefel, Bell and Keane JJ stated:

It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion.407

The principle of individualised justice clearly interconnects with an instinctive synthesis approach to sentencing (discussed above), with both principles involving the exercise of broad judicial discretion. The approach to determining an

appropriate sentence is, therefore, a complex mental process requiring judicial

402 _Ibid.

403 _{The other fundamental principles were proportionality, parsimony, totality and consistency, see Ibid}

29-30, 156-157.

404 _{See, eg, R v Whyte (2002) 55 NSWLR 252, 276-278 (Spigelman CJ with Mason P, Barr, Bell and}

McClellan JJ agreeing); Kable v Director of Public Prosecutions (1995) 36 NSWLR 374, 394. See also Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) 155.

405 _{Chief Justice James Spigelman AC, ‘Consistency and Sentencing’ (Keynote Address delivered at the}

Sentencing Conference 2008, Canberra, 8 February 2008) 3; Hon James Spigelman, ‘Consistency and Sentencing’ (2008) 82 Australian Law Journal 450, 450-451.

406 _{(2013) 248 CLR 483.} 407 _{Ibid 494-495.}

officers to balance numerous variables and impose a sentence upon an individual who is operating in a complex reality.

From this framework, it is apparent that there may well be differences (legitimate differences) between the circumstances taken into account in respect of one offender in contrast to the circumstances taken into account for another offender who is being sentenced for the same type of offence. This is because in determining an appropriate sentence, regard must be had to many sentencing factors tailored to the individual offender and their unique circumstances.

IV SENTENCING JURISPRUDENCE

In 1987, Richard Fox identified the scarcity of statistical and descriptive data on sentencing as ‘one of the greatest barriers to the achievement of uniformity of approach’ in sentencing.408 _{The emergence of Sentencing Information Systems}

around Australia (discussed below) has seen a shift towards providing greater attention to monitoring sentencing practices. These systems have also seen the barriers identified by Fox (ie. reliable statistical information on past sentencing practices) alleviated. However, as the cases of Hili409 _{and Barbaro}410 _{highlight, the}

High Court has been very resistant to judicial reliance upon statistical data in sentencing.

State and territory governments have been increasingly active in legislating within the field of sentencing. The actions of legislatures have largely been in the name of implementing a more consistent approach to sentencing. Justice Preston has remarked on the impact of this legislative encroachment into sentencing, noting that:

The task [of sentencing] is discretionary, but the discretion is structured. Within the last three decades, the degree of structuring has increased…The structures include prescribing the maximum (and sometimes the minimum)

408 _{Richard Fox, 'Controlling Sentencers' (1987) 20 Australia and New Zealand Journal of Criminology}

218, 230.

409_{Hili v The Queen (2010) 242 CLR 520.} 410 _{Barbaro v The Queen (2014) 253 CLR 58.}

penalties that may be imposed for different offences, and the sentencing considerations that must be taken into account.411

As described above, there is an overarching legislative structure to sentencing in each Australian jurisdiction that did not previously exist.

Yet, despite the growth in legislation as a principal source of law on sentencing, the most dominant characteristic of sentencing in Australia remains that it is an

exercise of broad judicial discretion.412 _{There is, however, more that can be done}

within the current framework to alleviate concerns about an uncharted

‘wasteland’413 _{of sentencing. Placing greater importance on sentencing principles}

is essential to this.

In Wong, Gaudron, Gummow and Hayne JJ emphasised the importance of courts setting out sentencing principles guiding the exercise of their judicial sentencing discretion.414 _{In the joint judgment they advised:}

…it may very well be necessary and appropriate for a court, in the course of resolving the issues presented by the matter before it, to make explicit the sentencing principles that were engaged in the particular matter. Thus, there will be cases where, for example, it may be appropriate to conclude that sentencers should give chief weight to general deterrence in sentencing for a particular kind of offence. Such statements are obviously important in ensuring a principled approach to sentencing in future cases.415

This directive from the High Court is being picked up. For example, in speaking on ‘Consistency and Sentencing’ at the 2008 national sentencing conference,

Spigelman CJ remarked that ‘it is these [sentencing] principles… which play a critical role in reconciling the principle of individualised justice and the principle

411 _{Justice Brian J Preston, ‘Principled Sentencing for Environmental Offences – Part 1: Purposes of}

Sentencing’ (2007) 31 Criminal Law Journal 91, 91.

412 _{Sarah Krasnostein and Arie Freiberg, ‘Pursuing Consistency in an Individualistic Sentencing}

Framework: If You Know Where You’re Going, How Do You Know When You’ve Got There?’ (2013) 76(1) Law and Contemporary Problems 265, 265.

413 _{In the 1970s Judge Marvin Frankel argued that the ‘evil of unbounded discretion’ evident in}

sentencing in the United States resulted in a ‘wasteland in the law’. The piece remains a seminal work see Marvin Frankel, ‘Lawlessness in Sentencing’ in Andrew von Hirsch, Andrew Ashworth and Julian Roberts (eds), Principled Sentencing: Readings on Theory and Policy (Hart Publishing, 3rd _{ed, 2009) 237,}

242. Frankel is also acknowledged in Mirko Bagaric and Richard Edney, Australian Sentencing: Principles and Practice (Cambridge University Press, 2007) 15.

414_{Wong (2001) 207 CLR 584, 605 - 606. See also Mohlasedi v The Queen [2006] WASCA 267.} 415_{Wong (2001) 207 CLR 584, 606.}

of consistency.’416 _{A plurality of the High Court in the decisions of both Hili and} Barbaro have echoed the call for greater judicial attention to legal principles in sentencing.417

This study of family hardship within Australia highlights the importance of paying greater attention to the development and use of sentencing factors and principles. As the sentiments above highlight, there is considerable support from the

judiciary, for greater focus upon understanding and explaining approaches to sentencing and the interaction between principles and factors. The research conducted for this dissertation will assist in the transition towards a more sophisticated and nuanced engagement with the role of sentencing factors, principles and approaches.