Guideline Judgments in New South Wales: Enhancing Consistency in Sentencing

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During a 2006 speech he gave at the International Society for the Reform of Criminal Law, then NSW Director of Public Prosecutions Nicholas Cowdery addressed the inception and benefits of a relatively new sentencing regime that had recently been established – that being guideline judgements.

As he recalled, NSW was heading for a March 1999 election and the usual tough-on-crime debate was prominent on the campaign trail, with ideas being spruiked like the imposition of mandatory or minimum sentences.

Yet, then NSW Chief Justice James Spigelman suggested guideline judgements.

Having operated in the UK for two decades by then, this system, Cowdery explained, has “the principal objective” in ensuring “consistency in sentencing” between the courts and judges. And its point wasn’t to restrict judicial discretion but to structure it, as well as to maintain public confidence.

Guideline judgements have been operating in NSW since the late 1990s. These cases involve a panel of judges determining a sentencing range, along with an appropriate starting point and relevant mitigating and aggravating factors for one or more various forms of a category of crime.

In August 1998, NSW Chief Justice Spigelman announced the intention of the NSW Court of Criminal Appeal (NSWCCA) to commence formulating guidelines judgements, with a legislated process soon following, and today, sentencing guides play an integral role within the NSW criminal justice system.

First cab off the rank

To kick off the system of guideline judgements, the Chief Justice chose a case dealing with dangerous driving causing death or grievous bodily harm, contrary to section 52A of the Crimes Act 1900 (NSW), which is a crime that carries up to 7 years imprisonment.

Cowdery explains that Spigelman identified this as an appropriate category of offence to base this new system upon, as there had been a long history of appeals against sentences handed down for this crime, which suggested a degree of inconsistency of approach in sentencing over this offence.

Christopher Jurisic was facing 3 counts dangerous driving under section 52A, which saw him receive a sentence of 9 months minimum home detention and a potential extra 9 months of being confined to his house, and this was accompanied by a 12 month long licence disqualification.

On appeal, a five-justice bench of the NSWCCA sentenced him to 1 year minimum imprisonment, with an additional year potentially applying, along with a 24 month licence suspension. And in doing so, the five justices handed down that court’s initial guideline sentence, which was a first for NSW.

The guideline consisted of two parts. The first being that a noncustodial sentence relating to a section 52A offence should be for exceptional cases only, like driving incidents that involved momentary inattention or misjudgement.

The second part comprised of circumstances in which there’s been a plea of guilt and the offence involves an aggravating factor, and in that regard only exceptional cases of dangerous driving causing death carry a sentence of less than 3 years, or of less than 2 years if causing grievous bodily harm.

And a list of aggravating factors, which was provided by the Chief Justice, included the extent or nature and injuries, the number of people at risk, the degree of speed, any impairment, erratic driving, showing off, length of journey, ignoring warnings signs and attempting to escape police.

The laws governing guideline judgments

In the wake of the handing down of the first guideline sentencing, the Crimes (Sentencing Procedure) Act 1999 (the Act) was enacted into state law by the Carr government, with division 4 part 3 of the legislation outlining the laws governing the recently introduced sentencing guideline procedures.

Section 36 of the Act outlines that the court involved in such judgements is the NSWCCA, while the guidelines recommenced in such a judgement can be applied in general or to particular court or classes of courts.

Under section 37, it’s noted that the NSW attorney general may provide an application for a guideline judgement, which can include suggestions for guidance outcomes, but the request can’t be made in reference to a particular offender.

While section 37A provides the court itself with the power to come to the decision to produce a guideline judgement, and section 37B provides that any such guidance judgement “may be reviewed, varied or revoked in a subsequent guideline judgment”.

Sections 38, 39 and 39A of the Act provide that the Senior Public Defender, the DPP or the AG respectively, can intervene in a guidance judgement in four ways: oppose or support it, make a submission regarding outcomes, advise of any relevant pending appeals, or simply assist the court.

According to section 40, nothing limits the court in providing a guidance judgement and nothing forces it to do so, if it finds it inappropriate to. And section 42 underscores that regular limits to what can be used as evidence during an appeal, doesn’t apply to guidance judgement hearings.

Stick ‘em up

The second guideline judgement in NSW was made in respect of the 1999 NSWCCA case of R versus Henry and the offence of armed robbery, contrary section 97 of the Crimes Act 1900, which is an offence that carries up to 20 years imprisonment.

The guideline judgement relating here is that if a young offender with no record, uses a weapon, like a knife, to rob a vulnerable person, with little planning or intention to use violence and no violence takes place, and the offender does plead guilty then they should receive around 4 to 5 years.

The offender appealed this to the High Court, on the grounds that the court shouldn’t have made a guidance ruling regarding armed robbery, it made an error in not reflecting on legislation from other jurisdictions and the extra evidence permitted in the appeal should not have been allowed.

Yet, the High Court dismissed leave to appeal the following year.

A system that’s working 

And in concluding his 2006 deliberations on the relatively new system of guidance judgements, Cowdery said that apart from its “teething troubles and uncertain future”, its “acceptable in principle and workable in practice” and it had been “strengthened by the legislation passed”.

“However, we need to scrutinise very carefully any attempt by the executive to have the court do its bidding in ways that may infringe its independence,” Cowdery warned from his then current position of NSW DPP.

“We also need to be careful to ensure that measures taken do not result in unfairness to any of the parties involved or to future litigants.”

Sydney Criminal Lawyers will be featuring prominent guideline judgements on its NSW Courts site over the coming weeks

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About Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He has a focus on civil rights, drug law reform, gender and Indigenous issues. Along with Sydney Criminal Lawyers®, he writes for VICE and is the former news editor at Sydney’s City Hub.

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