Modelos de Vectores de Corrección del Error (VEC)

The instinctive synthesis approach to sentencing has been subject to significant and sustained criticism from legal academics.379 _{Academic critique appears to fall}

comfortably within Cyrus Tata’s understanding of the ‘legal rationalist tradition’ whose members seek to ‘tame, confine, and structure discretion by recourse to rules.’380 _{For example, Bagaric has been highly critical of the disparities in}

sentencing arising from the broad discretion that is present within the current system.381

There has also been judicial critique, however, this stems from a position that the instinctive synthesis approach does not reflect the steps taken in arriving at sentence. The predominate alternative approach to sentencing is the ‘two stage’

377 _Ibid.

378_{Lacey v Attorney-General (Qld) (2011) 242 CLR 573, 595-596 (French CJ, Gummow, Hayne,}

Crennan, Kiefel and Bell JJ); Barbaro v The Queen (2014) 253 CLR 58, 74 (French CJ, Hayne, Kiefel and Bell JJ). See also R v Pham (2015) 256 CLR 550, 558 (French CJ, Keane and Nettle JJ) and 564 (Bell and Gageler JJ).

379 _{See, eg, Mirko Bagaric and Richard Edney, Sentencing in Australia (Thomson Reuters LawBook Co,}

2014) 3; Mirko Bagaric and Richard Edney, 'What's Instinct Got to do with it? A Blueprint for a Coherent Approach to Punishing Criminals' (2003) 27 Criminal Law Journal 119; Mirko Bagaric, ‘Consistency and Fairness in Sentencing – The Splendor of Fixed Penalties’ (2000) 2 California Criminal Law Review 1; Mirko Bagaric, 'Sentencing: The Road to Nowhere' (1999) 21(4) The Sydney Law Review 597; Richard G Fox, ‘Controlling Sentencers’ (1987) 20 Australia and New Zealand Journal of Criminology 218; Michael Tonry, Sentencing Matters (Oxford University Press, 1996) 178; Ian Leader Elliott, ‘Editorial: Instinctive Synthesisers In The High Court’ (2002) 26 Criminal Law Journal 5, 8; George Zdenkowski, 'Sentencing’ in Ian Freckelton, and Hugh Selby (eds), Appealing to the Future: Michael Kirby and His Legacy (Thomson Reuters, 2009) 751, 761; John Anderson, ‘Standard Minimum Sentencing and Guideline Judgments: An Uneasy Alliance in the Way of the Future’ (2006) 30 Criminal Law Journal

203, 212-213 and 219; Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press, 6th _{ed, 2015) 52, 81 and 449.}

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

Process’ (2007) 16(3) Social & Legal Studies 425, 428.

381 _{Mirko Bagaric, 'Sentencing: The Road to Nowhere' (1999) 21(4) The Sydney Law Review 597; Mirko}

Bagaric and Richard Edney, 'What's Instinct Got to do with it? A Blueprint for a Coherent Approach to Punishing Criminals' (2003) 27 Criminal Law Journal 119.

approach. The ‘two stage’ approach sees a court first, makes a quantified determination of the appropriate sentence and, secondly, the court makes adjustments to this figure based on identified aggravating and mitigating factors.382 _{Kirby J has argued that:}

so many judges in Australia, experienced in criminal trials and in sentencing, have expressed their disagreement with the approaches derived from

Williscroft and Young, it is undesirable…for this Court…to impose those

authorities on sentencing judges throughout the Commonwealth.383

In Wong, Kirby J had failed to endorse the instinctive synthesis approach,384 _and

four years later, in his dissenting judgment in Markarian,385 _{he openly supported}

the two-stage approach delivering a strong critique of the joint reasons supporting instinctive synthesis.386 _{Justice Kirby observed that the ‘growing move of federal}

and state legislatures in Australia to spell out specific considerations that are to be taken into account in judicial sentencing’387 _{was an important change, indicative of}

an obligation for ‘sentencing courts and courts of criminal appeal to pay regard to aggravating and mitigating factors’,388 _{and to take adjustments in determining a}

sentence.389

Over the years, the High Court has recognised criticisms to the instinctive

synthesis approach yet has persistently supported this approach to sentencing. In Markarian, McHugh J defended the instinctive synthesis approach and observed:

Critics of the instinctive synthesis method place too much emphasis on the “instinct” and too little on the “synthesis”. The use of the word “synthesis” in the context of sentencing identifies the very last part of the process. It recognises that, where a variety of considerations, often tending in opposing directions, operate in the context of a statutory maximum, there must finally be a quantification of the sentence to be imposed. There must be a synthesising of the relevant factors.390

382 _{See further, Ian Leader Elliott, ‘Editorial: Instinctive Synthesisers in The High Court’ (2002) 26}

Criminal Law Journal 5, 8; George Zdenkowski, 'Sentencing’ in Freckelton, I and Selby, H (eds),

Appealing to the Future: Michael Kirby and His Legacy (Thomas Reuters, 2009) 751, 759.

383_{Markarian v The Queen (2005) 228 CLR 357, 402.} 384_{Wong (2001) 207 CLR 584, 622.}

385_{Markarian v The Queen (2005) 228 CLR 357, 390-408.} 386 _{Ibid 406-407.}

387 _{Ibid 402.} 388 _Ibid.

389 _{See generally Kate Warner, ‘Sentencing Review 2004-2005’ (2005) 29 Criminal Law Journal 355,}

355 – 361.

To further defend the instinctive synthesis approach within the current sentencing climate, McHugh J explained,

One reason why the idea of instinctive synthesis is apparently abhorrent to lawyers who value predictability and transparency in sentencing is that they see the instinct of a sentencing judge as entirely subjective, personal, arbitrary and unconfined. In fact, although a sentencing judge does ultimately select a number, it is not from thin air that the judge selects it. The judicial air is thick with trends, statistics, appellate guidance and, often enough these days, statutory guidance.391

The ‘trends, statistics, appellate guidance and… statutory guidance’ that McHugh J refers to in this passage will be explored later in this Chapter.

Despite global shifts towards structured and standardised sentencing practices in the common law world, for example formulaic sentencing guidelines and grids,392

the Australian sentencing framework has remained firmly wedded to broad discretion and instinctive sentencing practices. As has been seen above, this is because of the robust defence of an instinctive synthesis approach to sentencing by the High Court and their ardent protection of broad judicial discretion. The weight of authority and current composition of the High Court, indicates that the

instinctive approach will prevail for the foreseeable future.

Understanding the instinctive synthesis approach and the broader context of Australian sentencing practices is important content for this study. The instinctive synthesis approach to sentencing within Australia means that it is impossible to quantify the precise reduction provided by sentencing judges who take family hardship into account as a mitigating factor. The importance of this feature in respect of sentencing appeals is addressed further below.