SENTENCING - LAWS4314

Week 3

Sentencing Considerations, Instinctive Synthesis

and Appeal

Associate Professor Anthony Hopkins

ANU Law School
anthony.hopkins@anu.edu.au 1
Acknowledgement of Country
 Indigenous Justice Webinar Events You May be Interested In

Abolition on Indigenous land: alternative futures and criminology’s role

• 6:00pm - 8:00pm Thursday 18 March 2021

Aboriginal Community Justice Reports Project:

Improving sentencing outcomes and reducing overincarceration of Aboriginal people
• 9am - 10.15am, Wednesday 10 March
• Registration Link: tinyurl.com/UVJacjr
Seminar Outline

1. Questions about the Submission Assessment

2. Instinctive Synthesis: Markarian v R [2005] HCA 25
3. Breakout Group – McHugh J v Kirby J in Markarian
4. Consistency: Hili v The Queen [2010] HCA 45

Break (5 minutes)

5. Component Parts of a Sentence? Component Parts of a Submission?

6. Statistics and Past Cases: Hili v The Queen [2010] HCA 45
7. Sentencing Appeals/Crown Appeals
8. House v The King [1936] HCA 40
Instinctive Synthesis: Markarian v R [2005] HCA 25

1. What was the offending and how different was the original sentence imposed to
that imposed by the NSWCCA [2]-[10]? Does that bother you?

2. What is involved in a discretionary decision [27] and what are the ways in which
you can argue that a discretionary decision has miscarried? [25] (Gill J Podcast)

3. How is the maximum penalty to be taken into account [31]? How did Hulme J’s
reasoning conflict with the instinctive synthesis approach in relation to (1) the
maximum penalty [31] and (2) the weight of drugs involved [33]?

4. Having regard to what was said by the majority at [39] how is instinctive
synthesis to be balanced with transparency?
Breakout Group: McHugh J v Kirby J in Markarian

Markarian v R [2005] HCA 25; (2006) 228 CLR 357

A super quick debate. You have 10 minutes to work as a group to identify and
develop your points. I suggest screen sharing the decision and reading the
paragraphs together. Nominate one person to be ready to argue your case to
the seminar group.

Odd Numbered Groups:

Your Task is to argue in favour of instinctive synthesis drawing upon

McHugh J’s arguments and adding any of your own: See [50]-[54] & [74]

Even Numbered Groups:

Your Task is to argue against instinctive synthesis drawing upon Kirby J’s
arguments and adding any of your own: [129]-[135]
Consistency: Hili v The Queen [2010] HCA 45

In Hili v The Queen [2010] HCA 45 [18], [49], [50] how did the majority explain
the principle of consistency? (p38) Why might sentencing imposed on federal
offenders present particular consistency issues?

[18]…the consistency that is sought is consistency in the application of the

relevant legal principles, not some numerical or mathematical equivalence.
Consistency in sentencing federal offenders is achieved by the proper application
of the relevant statutory provisions, having proper regard not just to what has been
done in other cases but why it was done, and by the work of the intermediate
courts of appeal.
Consistency: Hili v The Queen [2010] HCA 45

[49] The consistency that is sought is consistency in the application of the relevant
legal principles. And that requires consistency in the application of Pt IB of the
Crimes Act. When it is said that the search is for "reasonable consistency", what is
sought is the treatment of like cases alike, and different cases differently. Consistency
of that kind is not capable of mathematical expression. It is not capable of expression
in tabular form. That is why this Court held[40] in Wong that guidelines that the New
South Wales Court of Criminal Appeal had determined should be used in sentencing
those knowingly concerned in the importation of narcotics were inconsistent with
s 16A of the Crimes Act. Those guidelines had made the weight of the narcotic the
chief factor determining the sentence to be imposed, thus distracting attention from
the several considerations set out in the non-exhaustive list of matters prescribed by
s 16A(2) as matters "the court must take into account" in fixing a sentence, if those
matters are relevant and known to the Court.
Take a Break
Component Parts of a Sentence? Component Parts of a Submission?

Given that the majority in Barbaro v The Queen [2014] HCA 2

[34] said that a ‘sentence cannot, and should not, be broken down
into some set of component parts’ does this mean that a sentencing
decision should not contain discrete discussions of objective
circumstances, subjective features, aggravating and mitigating
circumstances or alike? Why or why not?

Let’s look at a sentence of Justice Loukas-Karlsson together:

R v Facer [2020] ACTSC 342 (SCC 197 of 2020)
Statistics and Past Cases: Hili v The Queen [2010] HCA 45

1. By reference to Hili v The Queen what is the proper use to be made of

statistics and past sentences? (p 51- 54) How useful might a table/schedule of
comparative cases be? (see 56) What information would it need to contain to
maximise its usefulness for a judge?

2. How do the authors connect the principle of equal justice as expressed in

Green v The Queen [2011] HCA 49 [29] with their attack on instinctive
synthesis? (p 44-45). What about the rule of law? (p 46) Whose ‘instincts’
count? Where does conscious and unconscious bias fit in? (p 47) Would a two-
step approach address this? Should we sentence by algorithm?
 
Sentencing Appeals/Crown Appeals

1. What is an appeal de novo and how does it compare with an appeal

requiring demonstration of error? When might leave to appeal be
required? (p 154)

2. Why would different principles apply to Crown appeals? (p 156)

3. If interested, see case on Crown Appeals/residual discretion to dismiss in

ACT

• R v Ralston [2020] ACTCA 47 (29 September 2020) (Murrell CJ,

Mossop J, Loukas-Karlson J dissenting) [62]-[66]; [82]-[103]

• Empirical questions? How often are Crown appeals against sentence

on the basis of manifest inadequacy in the ACT successful as against
appeals by offenders for manifest excess? How does this compare
against another jurisdiction? Has this changed over time as the law on
double jeopardy on Crown Appeals changed?

• See also: R v Rappel [2019] ACTCA 11

House v The King [1936] HCA 40

1. In what ways might specific error be shown? See text (p 159) House v The
King [1936] HCA 40 (Dixon, Evatt and McTiernan JJ) (text p 190-193)
(Gill J podcast)
• Discernible error
• Error inferred from the result

2. How is manifest excess established? (pp 160 – 165); Dinsdale v The

Queen [2000] HCA 54 [6]; Ewan v The Queen [2019] NSWCCA 17 [37].

3. How, if at all, does this differ from establishing manifest inadequacy? (see
R v UG [2020] ACTCA 8 [41] (p 169-170))
Thank you for listening