Guiding sentencing

A couple of recent decisions of the United States Supreme Court call attention to the operation of sentencing guidelines. In New Zealand we have made provision for guidelines to be issued pursuant to the Sentencing Council Act 2007. This, for us will be a new venture. Occasionally our Court of Appeal has handed down guideline judgments in particular areas of offending, but the utility of these is doubtful, as may be indicated by the creation of the Council. An interesting question will be whether sentencing guidelines are more effective when issued by the Council than when they are given in judgments.

How should departures from guidelines be treated by appellate courts? In Gall v US No 06-7949 (10 December 2007) the Court held (Thomas and Alito JJ dissenting) that appellate courts must review sentences under a deferential abuse-of-discretion standard. This involves acknowledging the advantages enjoyed by the first instance court in making the decision as to sentence, and then determining whether that decision was reasonable. In US v Booker, 543 U.S. 220 (2005) the Court had held invalid a statute which purported to make the guidelines mandatory, and had also held that the appellate court does not examine the sentence de novo, substituting its view for that of the lower court. So, in Gall the Court held that there was no need for extraordinary circumstances before a sentence outside the guidelines could be imposed. While the guidelines are the starting point, the initial benchmark, they are not the only consideration. The question of reasonableness of the sentencing decision depends on whether the judge had abused his discretion in determining that the relevant factors justified a deviation from the range of sentences indicated by the guidelines.

The other recent decision is Kimbrough v US No 06-6330 (10 December 2007). The guidelines differentiated markedly (there was a sentence “cliff”) between sentences for dealing in different forms of cocaine, the ordinary powder form, and the crystalline “crack” form. The appropriateness of this differentiation was a matter of some difference of opinion as between the legislature, which supported the guidelines, and the Sentencing Commission which did not. The Court held that although the sentencing judge was obliged to consider the guidelines, he could determine that, in a particular case, the within-guidelines sentence would be greater than necessary. The differential in the guidelines was not an exception to the general freedom of the judge to depart from the guidelines and to taylor the sentence in recognition of other concerns. The differential in the guidelines based on the form of the drug was a departure from the practice of the Commission of setting the guidelines according to an empirical examination of sentencing levels, and the judge could take that matter into account when deciding whether departure from the guidelines was warranted.

These cases illustrate that sentencing guidelines may introduce difficulties of their own: instead of simply examining how other courts have sentenced for similar offending and placing the present case in that context, when guidelines are imposed, the court must have proper regard for them while recognising when departure is justified. Factors specified by the guidelines as relevant may be inappropriate (for example, in Kimbrough, the form of the drug rather than its quantity).

Section 9(1)(a)(v) of the Sentencing Council Act 2007[NZ] provides that it is one of the functions of the Council to give guidelines as to grounds for departure from the guidelines. In case you don’t believe me, here is subsection (1):

“(1)The functions of the Council are—
(a)to produce guidelines that are consistent with the Sentencing Act 2002 relating to— (i)sentencing principles:
(ii)sentencing levels:
(iii)particular types of sentences:
(iv)other matters relating to sentencing practice:
(v)grounds for departure from the sentencing guidelines:”

What about departure from the grounds for departure from the guidelines? We can be reasonably sure that the guidelines will not provide for departure where the guidelines are not considered by the court to be rational (as in Kimbrough), but let’s wait and see.