PILLAR 4: SENTENCING
Sentencing in NSW Criminal Cases: How Courts Exercise Discretion
Sentencing is an evaluative judgment, not a mathematical exercise.
Sentencing in NSW involves a structured exercise of judicial discretion. Courts balance objective seriousness against subjective features, applying established principles while recognising that each case presents unique circumstances.
The Nature of the Sentencing Exercise
NSW courts apply the approach of instinctive synthesis, articulated in Markarian v The Queen (2005) 228 CLR 357. This means:
Not a Two-Stage Process
Sentencing is not a matter of first determining a starting point and then making mathematical adjustments. Rather, all relevant factors are weighed together to arrive at a sentence that is appropriate in all the circumstances.
No Fixed Weights
Different factors carry different weight depending on the circumstances. A guilty plea may attract significant discount in one case and less in another, depending on timing, circumstances, and utilitarian value.
Reasons Required
Courts must identify the factors taken into account and explain how they have been weighed, but are not required to assign numerical values to each factor.
"The judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case."
— Markarian v The Queen (2005) 228 CLR 357 at [51]
Objective Seriousness and Subjective Features
The sentencing exercise involves assessment at two levels:
Objective Seriousness
The gravity of the offence itself, assessed independently of the offender. This includes:
- Nature and extent of harm caused
- Degree of planning or premeditation
- Vulnerability of victim
- Breach of trust or position
- Where the offence falls within the range for that type of offending
Subjective Features
Circumstances personal to the offender that affect the appropriate sentence. These include:
- Guilty plea (timing and circumstances)
- Prior criminal history (or lack thereof)
- Remorse and insight
- Rehabilitation steps taken
- Mental health, childhood deprivation, disadvantage
Purposes of Sentencing
Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) identifies the purposes of sentencing:
- a
Punishment
To ensure that the offender is adequately punished for the offence
- b
Deterrence
To prevent crime by deterring the offender (specific) and others (general)
- c
Protection
To protect the community from the offender
- d
Rehabilitation
To promote the rehabilitation of the offender
- e
Accountability
To make the offender accountable for their actions
- f
Denunciation
To denounce the conduct of the offender
- g
Recognition of Harm
To recognise the harm done to the victim and community
These purposes often pull in different directions. General deterrence may call for a more severe sentence; rehabilitation may call for a sentence that allows community-based treatment. The court must balance these competing considerations.
Key Sentencing Principles
Proportionality
The sentence must be proportionate to the gravity of the offence. A sentence that is disproportionately severe is just as erroneous as one that is disproportionately lenient.
Parity
Co-offenders should receive sentences that are appropriately proportionate to each other, reflecting their relative culpability and circumstances.
Totality
Where multiple offences are being sentenced, the total effective sentence must be just and appropriate, not crushing or disproportionate to the overall criminality.
Parsimony
Courts should impose no more punishment than is necessary to achieve the purposes of sentencing. Imprisonment is a sanction of last resort.
Special Sentencing Considerations
Bugmy Principles
Childhood deprivation and disadvantage remain relevant to sentencing regardless of how many times an offender has been before the courts: Bugmy v The Queen (2013) 249 CLR 571.
Fernando Principles
Special considerations apply when sentencing Aboriginal offenders, recognising the effects of dispossession and systemic disadvantage: R v Fernando (1992) 76 A Crim R 58.
Mental Health
Mental illness at the time of offending may reduce moral culpability. Ongoing mental health issues affect the weight of general deterrence and inform rehabilitation prospects.
Extra-Curial Punishment
Consequences already suffered (loss of employment, publicity, relationship breakdown) may be taken into account as a form of punishment already received.