Number 25 — Sentencing methodology: Two-tiered or instinctive synthesis

Sentencing methodology: Two-tiered or instinctive synthesis

Open justice is a fundamental principle enshrined in our legal system and nowhere is it more important than when a court seeks to exercise the punitive powers of the State. As part of the process of judicial accountability, judicial officers are required to give reasons for the sentences they impose. In turn, sentencing decisions are often closely scrutinised by the media, interested members of the public, academics, legal practitioners and, of course, other judicial officers. In many ways the sentence that is handed down, together with the reasons for sentence, provide one of the few means by which the community, the victim and the offender are able to gauge whether justice has been done in accordance with the principles of consistency and fairness.

The task of sentencing is often complex and difficult, and it has become all the more difficult and the proper approach unclear, because of a divergence of opinion in the High Court. Recent decisions of the High Court have drawn attention to a division amongst its members over the merits of two opposing sentencing methodologies: "two-tiered" and "instinctive synthesis". This division is highlighted by the recent decisions of Wong v The Queen; Leung v The Queen and Cameron v The Queen.