Sentencing guidelines

[13-600] Introduction

Gleeson CJ explained the concept and purpose of guidelines in Wong v The Queen (2001) 207 CLR 584 at [5]–[6]:

The idea of guidelines

The expressions “guidelines” and “guidelines judgments” have no precise connotation. They cover a variety of methods adopted by appellate courts for the purpose of giving guidance to primary judges charged with the exercise of judicial discretion. Those methods range from statements of general principle, to more specific indications of particular factors to be taken into account or given particular weight, and sometimes to indications of the kind of outcome that might be expected in a certain kind of case, other than in exceptional circumstances.

One of the legitimate objectives of such guidance is to reduce the incidence of unnecessary and inappropriate inconsistency. All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.

[13-610] The statutory scheme

The Criminal Procedure Amendment (Sentencing Guidelines) Act 1998 was passed in response to the first guideline judgment of R v Jurisic (1998) 45 NSWLR 209, and gave statutory recognition to the issuing of guideline judgments in NSW. However, guideline judgments came under criticism in the case of Wong v The Queen, which questioned whether the Crown appeal jurisdiction under s 5D of the Criminal Appeal Act 1912 permitted the court to promulgate guideline judgments on its own motion. In response to Wong, in 2001 s 37A was inserted into the Crimes (Sentencing Procedure) Act 1999 which gave the Court of Criminal Appeal power to issue guidelines on its own motion wherever it considered it appropriate, and retrospectively validated the previously issued State guidelines.

Guideline judgments have statutory force and sentencing judges are obliged to take them into account: Moodie v R [2020] NSWCCA 160 at [24]; R v Whyte (2002) 55 NSWLR 252 at [65].

Div 4 of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 contains the statutory scheme for sentencing guidelines.

Section 36 provides definitions, which include the following:

“guideline judgment” means a judgment that is expressed to contain guidelines to be taken into account by courts sentencing offenders, being:

(a)

guidelines that apply generally, or

(b)

guidelines that apply to particular courts or classes of courts, to particular offences or classes of offences, to particular penalties or classes of penalties or to particular classes of offenders (but not to particular offenders).

Section 37 provides:

Guideline judgments on application of Attorney General

(1)

The Court may give a guideline judgment on the application of the Attorney General.

(2)

An application for a guideline judgment may include submissions with respect to the framing of the proposed guidelines.

(3)

An application is not to be made in any proceedings before the Court with respect to a particular offender.

(4)

The powers and jurisdiction of the Court to give a guideline judgment in proceedings under this section in relation to an indictable or summary offence are the same as the powers and jurisdiction that the Court has, under section 37A, to give a guideline judgment in a pending proceeding in relation to an indictable offence.

(5)

A guideline judgment under this section may be given separately or may be included in any judgment of the Court that it considers appropriate.

(6)

(Repealed)

Section 37A provides:

Guideline judgments on own motion

(1)

The Court may give a guideline judgment on its own motion in any proceedings considered appropriate by the Court, and whether or not it is necessary for the purpose of determining the proceedings.

(2)

The Court is to give the Senior Public Defender, Director of Public Prosecutions and Attorney General an opportunity to appear as referred to in sections 38, 39 and 39A before giving a guideline judgment.

Section 42A provides:

Relationship of guidelines and other sentencing matters

A guideline that is expressed to be contained in a guideline judgment:

(a)

is in addition to any other matter that is required to be taken into account under Division 1 of Part 3, and

(b)

does not limit or derogate from any such requirement.

[13-620] Guideline judgments promulgated

The Court of Criminal Appeal has delivered the following guideline judgments:

High Range PCA (Road Transport (Safety and Traffic Management) Act 1999, s 9(4)): Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Content of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305 at [146].

Form 1: (Crimes (Sentencing Procedure) Act 1999, Pt 3, Div 3): Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at [9].

Guilty plea (Crimes (Sentencing Procedure) Act 1999, s 22): R v Thomson & Houlton (2000) 49 NSWLR 383 at [160].

Break, enter and steal (Crimes Act 1900, s 112(1)): R v Ponfield (1999) 48 NSWLR 327 at [48].

Armed robbery (Crimes Act 1900, s 97): R v Henry (1999) 46 NSWLR 346.

Dangerous driving (Crimes Act 1900, s 52A): R v Jurisic (1998) 45 NSWLR 209 was reformulated in R v Whyte (2002) 55 NSWLR 252 at [252].

The Court of Criminal Appeal declined to promulgate a guideline for:

Assault police (Crimes Act 1900, s 60(1)): Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 (2002) 137 A Crim R 196.

The High Court overruled the guideline judgment for:

Drug importation (Customs Act 1901 (Cth), s 233B): Wong v The Queen (2001) 207 CLR 584 overruled R v Wong & Leung (1999) 48 NSWLR 340.

Wong v The Queen (2001) 207 CLR 584

In Wong v The Queen (2001) 207 CLR 584 the High Court held that the formulation of the drug importation guideline was flawed because it unduly elevated the weight of the drug as the crucial factor to be taken into account when sentencing: joint judgment at [34]–[88]; Kirby J at [89]–[150]. The court allowed the appeal and remitted the case to the Court of Criminal Appeal (see R v Wong & Leung (2002) 127 A Crim R 243).

Although Gleeson CJ and Callinan J dismissed the appeal, the High Court was unanimous in its criticism of the particular sentencing guideline (see Gleeson CJ at [31] and Callinan J at [165]). Callinan J questioned the prescriptive nature of the guideline and the significance attached to the quantity of drug as the chief determinative factor in sentencing: at [165]. Gleeson CJ at [31] described the guideline as a “risky undertaking” given the text and structure of s 16A of the Crimes Act 1914 (Cth). The joint judgment also cast doubt on the use of numerical guidelines generally and saw this as restricting the proper exercise of sentencing discretion (see [72] and [76]–[78]). On the other hand, the break, enter and steal guideline, which listed relevant factors without a numerical guideline, was approved: at [60]. For a further discussion of the case see H Donnelly, “Wong and Leung: The Kable guy and numerical guidelines” (2001) 8 Criminal Law News 101.

R v Whyte (2002) 55 NSWLR 252

The validity of guideline judgments was confirmed by the Court of Criminal Appeal in the five-judge bench case of R v Whyte (2002) 55 NSWLR 252. In the course of its reasons, the court effectively dealt with the matter as a test case for guideline judgments. The issues discussed included: the effect of Wong v The Queen (2001) 207 CLR 584 on the guidelines promulgated in R v Jurisic (1998) 45 NSWLR 209 and R v Henry (1999) 46 NSWLR 346; the effect of the (retrospective) statutory power conferred on the CCA to issue guideline judgments; the obligation of sentencing judges to take into account guideline judgments; whether by issuing guidelines the CCA is exercising a function which is incompatible with its exercise of Commonwealth judicial power; the role that numerical guidelines play in terms of sentencing consistency; and, finally, whether the Jurisic driving guideline should be reformulated.

The court (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ agreeing, with additional observations by Mason P and McClellan J) held that Wong v The Queen did not require the CCA to overrule the numerical guideline judgments of Jurisic and Henry. The new retrospective statutory power conferred on the CCA under s 37A of the Crimes (Sentencing Procedure) Act 1999 overcomes at least some of the jurisdictional limitations of the Crown appeal power referred to in the joint judgment of Wong v The Queen. Significantly, the court held that the new statutory power should not be read down to exclude guidelines which contain a quantitative element: see [46].

Sentencing judges are obliged to “take into account” a guideline judgment given by the CCA, by the operation of ss 21A(4), 42A and 37A of the Crimes (Sentencing Procedure) Act 1999. The fact a guideline judgment is given this statutory force is of significance. It specifies the effect which a guideline judgment ought to have on sentencing judges by force of statute: Whyte at [65], [67]; Moodie v R [2020] NSWCCA 160 at [24].

Numerical guidelines have a role to play in achieving equality of justice where, as a matter of practical reality, there is tension between the principle of individualised justice and the principle of consistency. The court in Whyte emphasised that the numerical guideline for dangerous driving has been significant in ensuring the adequacy and consistency of sentences. If it were removed, the pattern of inadequacy and inconsistency would quickly reemerge.

[13-630] Use of guideline judgments as a “check” or “sounding board”

R v Whyte (2002) 55 NSWLR 252 is the last authoritative statement on the use of guideline judgments. Spigelman CJ said at [113]:

this court should take particular care when expressing a guideline judgment to ensure that it does not, as a matter of practical effect, impermissibly confine the exercise of discretion. This involves, in my opinion, ensuring that the observations in the original guideline judgment of Jurisic — that a guideline was only an “indicator” — must be emphasised, albeit reiterated in the language of the 2001 Act as a matter to be “taken into account”. A guideline is to be taken into account only as a “check” or “sounding board” or “guide” but not as a “rule” or “presumption”. I see this as a reaffirmation of the reasoning in Jurisic.

While formal reference to a guideline judgment is not necessary, if this is not done, whether or not it was in fact taken into account will principally be assessed by comparing the factors identified in the guideline with the reasons for sentence: Moodie v R [2020] NSWCCA 160 at [47]–[48].

Reasons required for departure from guideline judgment

Notwithstanding the fact that guidelines are not binding in a formal sense, where a trial judge does not apply a guideline, reasons for that decision should be articulated. Spigelman CJ explained the rationale in R v Whyte at [114]–[116]:

As mentioned above, in Henry at [31], after stating that guidelines are only an indicator, I added:

“Nevertheless, where a guideline is not to be applied by a trial judge, this Court would expect that the reasons for that decision be articulated, so that the public interest in the perception of consistency in sentencing decisions can be served and this Court can be properly informed in the exercise of its appellate jurisdiction.”

As Simpson J pointed out in R v Khatter [2000] NSWCCA 32 at [26], it did not follow that a failure to articulate reasons necessarily amounted to legal error. Under the new s 37A, the obligation on a sentencing judge is to take a guideline into account. The obligation to give reasons is now the same as that applicable in the case of any other matter required to be taken into account.

The element of prescriptiveness, if that be appropriate terminology, of a guideline judgment given under s 37A, is now provided for in the statute.

[13-640] Sentencing guidelines and standard non-parole period offences

Offences for which guideline judgments have been promulgated by the Court of Criminal Appeal are not included in the standard non-parole period offence Table in Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act 1999 (reproduced at [8-000]), apparently for the reason that Parliament took the view that judges have sufficient guidance. In the Second Reading speech for the Bill that introduced standard non-parole period offences, the Attorney General proposed “that the guideline judgments already promulgated by the Court of Criminal Appeal should continue to be used by the courts when sentencing for these offences”: The Honourable RJ Debus, Attorney General, Second Reading Speech, “Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002”, NSW Parliamentary Debates (Hansard), Legislative Assembly, 23/10/02, 5815. In R v Way (2004) 60 NSWLR 168, the court affirmed the importance of guideline judgments notwithstanding the importance of standard non-parole periods: see at [122]–[131].