Sentencing in Australia
Introduction
Sentencing in Australia is the judicial process by which a court determines the appropriate penalty for a convicted offender. Each Australian jurisdiction has its own sentencing legislation (e.g., the Crimes (Sentencing Procedure) Act 1999 (NSW); the Sentencing Act 1991 (Vic); the Penalties and Sentences Act 1992 (Qld)), but the fundamental principles are largely consistent across the country. Sentencing is an exercise of judicial discretion, governed by established legal principles, and subject to appellate review.
The Purposes of Sentencing
Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) codifies the five purposes of sentencing, which reflect the common law and are adopted (with variations) in all Australian jurisdictions:
Retribution (or just punishment): the sentence must adequately reflect the moral culpability of the offender and the gravity of the offence. The punishment must be proportionate to the harm caused and the offender’s degree of responsibility.
Deterrence: the sentence must deter the offender from reoffending (specific deterrence) and deter others in the community from committing similar offences (general deterrence). General deterrence is given significant weight in sentencing for offences that are prevalent or difficult to detect.
Rehabilitation: the sentence must promote the reform and rehabilitation of the offender, reducing the likelihood of future offending. Rehabilitation is a primary objective in sentencing young offenders and first-time offenders.
Incapacitation (or protection of the community): the sentence must protect the community from the offender by incapacitation through imprisonment, home detention, or supervision conditions.
Denunciation: the sentence must express the community’s condemnation of the offending conduct.
The weight given to each purpose varies according to the circumstances of the offence and the offender. No single purpose is paramount; the court must balance all purposes in reaching the appropriate sentence: Veen v The Queen (No 2) (1988) 164 CLR 465.
The Principle of Proportionality
In Veen v The Queen (No 2) (1988) 164 CLR 465, the High Court held that the principle of proportionality is “paramount” in sentencing. The sentence must be proportionate to the objective gravity of the offence and the subjective circumstances of the offender. A sentence cannot be increased beyond what is proportionate merely to achieve other sentencing purposes, such as general deterrence or the protection of the community. The “maximum sentence is for the worst case,” and the court must identify where the particular case falls on the spectrum of seriousness.
The proportionality principle operates as a constraint on the pursuit of utilitarian sentencing objectives. It ensures that the offender is punished according to their desert, not according to the perceived needs of the community.
The Totality Principle
The totality principle governs the sentencing of offenders who are being sentenced for multiple offences. The court must impose an aggregate sentence that reflects the “total criminality” of the offending conduct and is not crushing or oppressive: Postiglione v The Queen (1997) 189 CLR 295.
In Mill v The Queen (1988) 166 CLR 59, the High Court stated that the sentencing judge must “review the aggregate sentence and consider whether it is just and appropriate.” The principle requires the court to ensure that the total sentence is not disproportionate to the overall criminality. Where sentences are imposed for multiple offences arising from a single course of criminal conduct, the court may order sentences to be served concurrently rather than cumulatively, and may adjust the head sentence to reflect the totality.
The Parity Principle
The parity principle requires that co-offenders who are equally culpable receive equal sentences, and that any difference in sentence between co-offenders be justified by a relevant difference in their objective or subjective circumstances: Lowe v The Queen (1984) 154 CLR 606. The principle reflects the requirement of equal justice: like cases must be treated alike, and any disparity must be based on a rational distinction.
Instinctive Synthesis
In Markarian v The Queen (2005) 228 CLR 357, the High Court confirmed that the Australian approach to sentencing is one of instinctive synthesis, not the “two-tier” approach of first fixing a tariff sentence and then adjusting it for aggravating and mitigating factors. Under instinctive synthesis, the sentencing judge identifies all the relevant facts and circumstances, weighs the competing sentencing purposes, and arrives at a single, indivisible sentence. The judge does not “mathematically calculate” the sentence by starting with a baseline and then adding or subtracting increments.
The instinctive synthesis approach has been criticised for its lack of transparency, but the High Court has consistently affirmed it as the correct methodology. The judge must give reasons that explain the sentence, but the reasons need not quantify the weight given to each factor.
Types of Sentences
Australian legislation provides a hierarchy of sentencing options, ranging from the most severe to the least.
Imprisonment: the most serious penalty, reserved for offences that are so serious that no other sentence is appropriate. The court must impose a head sentence (the maximum term) and a non-parole period (the minimum period that the offender must serve before being eligible for parole). The non-parole period is typically 75% of the head sentence, unless the court determines otherwise.
Suspended Sentence: the court imposes a term of imprisonment but suspends its execution on condition that the offender be of good behaviour. The offender does not serve the sentence unless they breach the condition. Suspended sentences are still available in some states (NSW, Qld, SA) but have been abolished in others (Vic).
Intensive Correction Order (ICO): a sentence of imprisonment served in the community under strict supervision, with conditions including community work, treatment programs, and curfew. ICOs are available in NSW and Vic as an alternative to full-time imprisonment.
Home Detention: the offender is confined to their home, subject to electronic monitoring and supervision by Community Corrections. Home detention is a sentencing option in some jurisdictions (Qld, WA) but has been replaced by ICOs in others.
Community Correction Order (CCO): a non-custodial sentence requiring the offender to be supervised in the community and to comply with conditions (community work, treatment, supervision, restrictions on travel or association). CCOs are the most common community-based sentence and are available in all jurisdictions in various forms.
Fine: a monetary penalty, fixed by the court, reflecting the gravity of the offence and the offender’s financial circumstances. The court must enquire into the offender’s ability to pay and may order that the fine be paid by instalments.
Conditional Release Order (or similar): a low-level sentencing option requiring the offender to be of good behaviour for a specified period, with or without supervision conditions.
Discharge: an order discharging the offender without penalty (absolute discharge) or subject to the condition that they commit no further offence for a specified period (conditional discharge). This is the least severe sentencing option, used where the court considers that punishment is unnecessary.
Life Sentence and Non-Parole Periods
A life sentence (imprisonment for the term of the offender’s natural life) is the most severe penalty in Australian law. It is mandatory for murder in some states (NSW, where the standard non-parole period for murder is 20 years; Vic, where the standard non-parole period is 25 years). The court may impose a “life sentence with a non-parole period” or, in the most extreme cases, a “life sentence without the possibility of parole.”
The non-parole period (NPP) is the minimum period that the offender must serve before being eligible for release on parole. The NPP reflects the period required for punishment, deterrence, and denunciation; the offender may be released on parole after the NPP expires if the parole authority is satisfied that release is appropriate.
Standard Non-Parole Period Scheme (NSW)
Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) establishes a standard non-parole period (SNPP) for specified serious offences. The SNPP represents the mid-range of objective seriousness for the offence; the court must either impose a NPP at or near the standard or provide reasons for departure. The scheme has been controversial, as it constrains judicial discretion and has led to a focus on “mid-range” characterisation.
Victim Impact Statements
A victim impact statement (VIS) is a written statement describing the physical, emotional, and financial impact of the offence on the victim and (where relevant) the victim’s family. The VIS is read or tendered at the sentencing hearing and is considered by the court in determining the appropriate sentence. The VIS informs the court of the harm caused, but the court must not give the victim’s views as to the appropriate sentence determinative weight: the sentence remains a matter for the court.
Mandatory Sentencing
Mandatory sentencing legislation requires the court to impose a fixed minimum sentence for a specified offence, removing or substantially limiting judicial discretion. Examples include the mandatory life sentence for the murder of a police officer in NSW (s 19B of the Crimes Act 1900 (NSW)), the “three strikes” laws for property offences in Western Australia, and mandatory minimum sentences for repeat violent offenders in the Northern Territory. Mandatory sentencing has been the subject of significant criticism, including from the High Court (which has held that some mandatory sentencing regimes infringe the separation of judicial power under the Kable principle: Hinton v The Queen (2019) 269 CLR 334).
Indigenous Sentencing
The High Court in Bugmy v The Queen (2013) 249 CLR 571 held that the Bugmy principles require sentencing courts to take into account the systemic disadvantage, social deprivation, and cultural factors that contribute to Indigenous over-representation in the criminal justice system. The Court held that the effects of profound childhood deprivation and social disadvantage do not diminish over time and remain relevant to the assessment of moral culpability, even where the offender has a long criminal record. The principle applies to all Indigenous offenders, not only those living in remote communities.
The Role of the Appellate Court
An appellate court will not interfere with a sentence merely because it would have imposed a different sentence. The court must be satisfied that the sentencing judge made an error of principle or that the sentence is “manifestly excessive” or “manifestly inadequate” — that is, that it falls outside the range of sentences that could reasonably be imposed in the circumstances: House v The King (1936) 55 CLR 499. The appellate court may re-sentence the offender if it upholds the appeal.