Judging or calculating?

Some general thoughts on sentencing guideline judgments are prompted by the High Court of Australia's decision this week in Hili v R; Jones v R [2010] HCA 45 (8 December 2010):

• The point of first reference for sentencing must be the relevant legislation. A court cannot issue guidelines that are inconsistent with statutory provisions.
  

• If a guideline indicates a "norm" for the starting point for sentence determination, can that go beyond being merely descriptive of what earlier cases have decided? What authority does the court have to set "norms" for the future?
  

• Without statutory authority to lay down norms for the future, or to describe even in the most general terms the circumstances in which those norms can be departed from, what binding force can these future "norms" have?
  

• Plainly, the purpose of sentencing guidelines is to promote consistency between cases. But cases are never exactly the same, and a sentencing judge should exercise judgment about what is appropriate for an individual offender. The task of counsel for each side is to bring to the court's attention cases that it asks to be used as precedents, and this is an exercise in describing what has happened in the past. That is the way the law usually works.
  

• Consistency between cases requires consideration of the reasons why previous sentences were imposed. This is not revealed by an exercise in tabulation of seriousness of offence and level of sentence, because that misses the vital ingredient of individual circumstance and other matters required by statute to be taken into account.
  

• So, first look at the legislation, then look at what has been done in other cases – especially to identify unifying principles – remembering that what has been done in the past does not necessarily set the limits on what can now be appropriate.
  

• Whether a sentence under appeal was manifestly inadequate or excessive does not depend on an intuitive reaction based on earlier decisions, but rather is a question that has to be answered in the light of all the matters relevant to fixing sentence, including the circumstances of the offending and the circumstances of the offender, and the sentences imposed in the most comparable cases.
  

• It is possible (as Heydon J said in his concurring but partly differently reasoned judgment, although the point must be uncontroversial) that there may be more than one "correct" sentence in a given case. A sentencing judge must be guided by his or her perception of what is appropriate.
  

Those points encourage us to doubt the status of so-called guideline judgments. Examples in New Zealand: establishing sentencing bands for drug offending based on the quantity of drug involved: R v Fatu [2006] 2 NZLR 72, R v Terewi [1999] 3 NZLR 62; categories for burglary based on the kind of offender: Senior v Police (2000) 18 CRNZ 340; bands of sentences for violent offending based on listed aggravating features: R v Taueki [2005] 3 NZLR 372; and – illustrating a level of analysis that has become, I respectfully suggest, grotesque – bands of sexual offending based on the physical details and grouped into "rape bands" and unlawful sexual connection or "USC bands" (!): R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750. These cases are prescriptive and may well be found to contravene the principles in the Sentencing Act 2002. Their underlying assumption is that judges are unable to exercise discretion judicially. These cases are, perhaps some might argue, an overly eager attempt by the appellate court to placate pressure groups whose only thoughts about sentencing are retributive. They are, of course, honest endeavours to promote uniformity in sentencing, but, especially when read in the light of the Supreme Court's rejection of a formulaic assessment of the amount of discount appropriate for pleas of guilty, they may have gone wrong in neglecting the legislated approach; see Hessell v R [2010] NZSC 135 (discussed here 16 November 2010).