Courts aim to uphold notions of fairness and equality before the law, and a key part of this is ensuring consistency in sentencing outcomes.
To promote consistency, magistrates and judges often have regard to statistics compiled by the Judicial Commission when imposing sentences for certain offences. This data is commonly known as ‘JIRS statistics’.
JIRS statistics show the distribution of penalties imposed by NSW courts for particular offences. The statistics start with ‘all offenders’ and can then be narrowed down into categories which take into account:
- the offender’s subjective features, such as age, any previous convictions, plea of guilty or not guilty, whether they are at liberty etc,
- the number of charges for which they are being sentenced, and
- the court in which the sentencing is taking place, ie Local Court or Higher Court such as the District Court.
So, for example, a criminal defence lawyer might use the Judicial Commission’s website to print a graph showing the breakdown of penalties imposed on those who were in a similar position to their client eg 21-25 years old, no previous convictions, at liberty, being sentenced in the Local Court for one count of ‘assault occasioning actual bodily harm’.
If those statistics indicate that a large number of other offenders in a similar position received a penalty that is favourable to the client, then the lawyer might hand-up a copy of those statistics during the sentencing process and argue for the same outcome.
JIRS statistics have long been considered a handy tool in a criminal lawyer’s armoury.
But recent cases question whether statistics holds as much weight as previously thought.
Why Is Consistency in Sentencing Important?
As discussed above, consistency in sentencing is important because the law aims to treat all defendants fairly. It also promotes public confidence in the justice system.
Besides ensuring that defendants are treated equally before the law, consistency can reduce the amount of appeals against sentence because a manifestly excessive sentence can be a ground of appeal.
This means that if either the defence or prosecution feels that the sentence imposed is unfair, they can lodge an appeal to have the sentence re-assessed by a higher court.
If magistrates and judges impose sentences which are perceived as unfairly harsh or lenient, it will naturally increase the number of appeals, which will in turn create further backlogs in our already overburdened court system.
What Do the Recent Cases Say?
The usefulness of statistics in setting sentences has been considered in a number of recent cases.
One of these is Hili v R (2010), where the High Court suggested that statistics hold little weight when it comes to the sentencing process because numerical graphs and data depict the range of outcomes for a particular offence and offender type, but not the reasons for those outcomes.
Essentially, the Court found, statistics have limited value to a judge because they do not shed light as to why the penalties were imposed, nor do they outline the full facts of the cases upon which the statistics were based. The justices in that case quoted the case of Wong v R  in which the majority stated:
‘Referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were.’
Another recent case was Tweedie v R . The applicant in that case sought to appeal against the sentence imposed in the District Court for various fraud and larceny offences, arguing that the sentence was too harsh when compared to other sentences for similar offences as demonstrated by the statistics.
Justice Hulme of the NSW Court of Criminal Appeal found that the statistics were ‘of no use at all’ because there were only five reported sentences for similar fraud offences in the District Court. This did not provide an adequate basis for comparison. The small size of the sample is a significant problem with JIRS statistics, especially when it comes to offences that are not prevalent in the community.
The Court also stated that Local Court sentencing statistics had no relevance when sentencing defendants in the District Court, because the maximum penalty that could be imposed in the Local Court was only 20% of that which could be imposed in the District Court.
Finally, His Honour highlighted a key problem with the JIRS statistics: that they only specify the sentence imposed for the ‘principal offence’ where a defendant is convicted of numerous offences; not the overall sentence for all the offences.
The principal offence is essentially the ‘most serious’ offence out of those that the person is convicted of, which carries the highest maximum penalty.
This means that JIRS statistics offer little value where a judge is sentencing a defendant for multiple offences, because they seek to compare the appropriate sentence for all the offences with the sentence imposed for the single most serious offence.
In Tweedie’s case for instance, he ‘was seeking to compare sentences imposed for a single offence with his aggregate sentence imposed for 38 offences.’
These cases suggest that while it is important to ensure consistency in sentencing, the ‘consistency’ relates to the application of the law itself, rather than the application of statistical data.
Do Statistics Have Any Value?
Given the outcome of these cases, do statistics hold any value when determining the appropriate sentence?
According to Downing Centre District Court Judge Blackmore SC, while sentencing statistics provide ‘useful information’ to consider, that is the extent of their value when it comes to determining the appropriate sentence for a particular set of circumstances.