Leading Steps Aright: Judicial Guideline Judgments in New South Wales
(2004) 16(2) Current Issues in Criminal Justice 140-159
20 Pages Posted: 29 May 2014
Date Written: October 31, 2004
Abstract
The New South Wales Court of Criminal Appeal has recently reaffirmed its commitment to guideline judgments, which began in the 1998 case of R v Jurisic, as a mechanism to structure the exercise of judicial sentencing discretion. The decision in R v Whyte last year, in which the Court of Criminal Appeal revisited the issue of guideline judgments in general, gave clear judicial support for the guideline judgment, including numerical guidelines, as a “check” or “sounding board” but not as a “rule” in sentencing certain offenders. The decision in this case cast aside the shadows placed on guideline judgments by the High Court in Wong v The Queen. Recent developments in the area of guideline judgments have been the New South Wales Judicial Commission report as to the impact of the Jurisic guidelines on sentencing practice and a further guideline judgment issued by the Court of Criminal Appeal in December 2002 in relation to the procedure for taking other offences into account when sentencing for a primary offence. At the same time, a guideline sought for the offence of assaulting police officers was refused by the Court on the dual bases that the offence encompasses a wide range of offending behaviour and that there was no evidence of a systematic pattern of leniency in sentences imposed by the lower courts.
Accordingly, the history of guideline judgments in New South Wales during the past five years raises an important question as to the ongoing utility of this mechanism in promoting consistency and equity in sentencing outcomes. Further, an issue arises at to whether there are any implications for crime control through the benchmarks set as guideline sentences for specific criminal offences and the level of denunciation associated with the issuing of guideline judgments particularly where custodial sentences are nominated as the usually appropriate punishment.
This article will explore the overall utility of the guideline judgment in sentencing and consider a number of recent developments including the role of the newly established New South Wales Sentencing Council in its advisory and consultative role as to the suitability of offences for applications to establish guideline judgments.
Keywords: Sentencing, Guideline Judgments
JEL Classification: K14
Suggested Citation: Suggested Citation