20 As Gleeson, C.J. observed in R. v. Gallagher[5] the determination of an appropriate sentence often involves analysis of a complex of inter-related considerations. It is for that reason that appellate courts have favoured the approach to sentencing appeals of what is called instinctive synthesis (see Wong v. The Queen[6]).
21 In the context of sentencing appeals which raise complaint that a sentence is manifestly excessive or manifestly inadequate the primary task of the Court is to assess whether the sentence falls within or outside the appropriate range.
22 Frequently, in providing its answer to that question the appellate court notes that manifest excess or inadequacy are matters which do not admit of much argument: a sentence either appears to be within range or it does not. The notion of "the range" presupposes that the courts are guided, in part at least, by an understanding of sentencing practices in cases involving the same or similar offences, and that is undoubtedly so in the case of the Court of Appeal, and probably also true for sentencing judges. But for both appellate and trial judges ascertaining what constitutes the range remains a somewhat mysterious and often elusive process[7].
23 Appellate courts have been reluctant to make direct comparisons between the facts and sentences in different cases in order to determine an appropriate sentence for the instant case. The sentencing process, whether at first instance or on appeal, is not amenable to simple comparisons or mathematical precision: too many variables are involved as between cases and no two cases have the same factors or equally weighted factors of mitigation and aggravation. Partly for these reasons the appellate courts have discouraged counsel from proffering comparisons between the case at hand and the sentencing disposition of other cases. It remains true, as the cases cited by Chernov, J.A in DPP v. Josefski reflect[8], that such direct comparisons are of limited assistance. As Chernov, J.A. also points out in Josefski[9], notwithstanding the admitted difficulty of ascertaining the limit of the range applicable in a given case the Court of Appeal ordinarily declines to invite or entertain submissions by counsel as to the range[10]. However, in my view, whilst discouraging counsel from attempting to usurp the role of judges or from indulging in sentence bargaining, the appellate courts and sentencing judges should be alert not to also discourage counsel from proffering useful and relevant information which may remove some of the uncertainty in the search for the appropriate range in a given case.
24 In this case the trial judge had been recently appointed to the Court and had not practised extensively in criminal law prior to his appointment. He wisely sought the assistance of defence counsel as to what were the current sentencing practices for manslaughter convictions. His Honour emphasised that he was not saying that counsel was obliged to respond, but clearly welcomed any assistance.
25 Defence counsel responded by saying he did not know what the current statistics were for such sentences and said judges usually found such material of little value. He said "I don't know what the current sentencing range is as such, but I don't expect, in accordance with the Director's policy that the Crown would be putting any figures to your Honour, but I would say there is nothing particularly aggravating about the commission of this offence and there is nothing particularly mitigatory about it either."
26 The judge was not inviting counsel to nominate a sentence, but to assist him in discovering what the range might be in sentencing for manslaughter, an area in which the range is notoriously broad. He received no assistance from defence counsel in that regard, nor from the prosecutor, but she explained to the judge that she had been assigned the case at the last minute.
27 On appeal, Ms Dixon, counsel for the appellant, produced a nine page attachment giving brief outlines of some 93 manslaughter sentences (and, in some instances, appeal decisions) delivered since 1998 in the Supreme Court of Victoria. The material had been compiled by Mr John McLoughlin of Victoria Legal Aid, an experienced solicitor who frequently appears before the Court as counsel and also when instructing counsel.
28 There were obvious limitations to that material: some of the sentences involved crimes committed before the maximum penalty had been increased to 20 years; the information on each case was limited; and there were some errors in the media neutral citations provided for the cases. Notwithstanding the limitations of the material, it nonetheless provided a very useful overview of both the wide range of manslaughter cases that have come before the Court in recent years and the breadth of sentencing dispositions. Some years ago, as a trial judge, I had been provided with similar information from the Director of Public Prosecutions, and a copy was given to defence counsel. I found the material very helpful, albeit in a "broad-brush" way. I have no doubt that the sentencing judge in this case would also have been assisted had Mr McLoughlin's chart, or similar material, been provided to him. One fact would have struck his Honour immediately, upon considering Mr McLoughlin's analysis. In only one case out of the 93 cases was a sentence as high as 11 years imprisonment imposed for manslaughter (with an 8 year non-parole period), and that was a case of provocation manslaughter, where a husband, with murderous intention, bashed and strangled his wife, in very brutal circumstances.
29 A document such as that prepared by Mr McLoughlin serves another useful purpose, in that it provides some guidance to a judge, necessarily only in a broad way, on the important question of consistency in sentencing.
30 I do not suggest that in all cases such information ought be provided to a sentencing judge by counsel, but certainly where the judge invites assistance in the sentencing task I can see no reason why counsel should be reluctant to provide it. Relevant and accurate sentencing information is much more readily available today than was the case in years past. In my opinion, the exercise of the sentencing discretion may be intuitive, but it neither is, nor should be, uninformed.
31 Computer data bases such as those of the Victorian Sentencing Manual (available to the public on the website of the Judicial College of Victoria) and of the Sentencing Advisory Council are very valuable research tools. The website of the Sentencing Advisory Council is also linked to a number of additional sites, both in Victoria and nationally, which also provide statistical information concerning sentencing.
32 It is to be borne in mind that upon reserving to consider a sentencing decision a judge can conduct his or her own research on sentencing practices whether by consulting sentencing text books, decided cases or by searching relevant data bases. It would rarely be the case that it was necessary for the judge to alert counsel to such researches, since the relevant sentencing issues would inevitably have been addressed during the plea, at least in broad terms. Nonetheless, the sentencing process would be more transparent if counsel and the judge discussed such research information before sentence was passed.
33 Sentencing is, of course, a task that places great emphasis on experience, but not all sentencing judges will be able to call on such experience. The task of determining the sentencing range can be daunting, even for the most conscientious judge. Ironically, the very fact that so many sentencing decisions are now reported or are available upon a search of the internet can make the task of determining the relevant range more, rather than less, difficult.
34 In my opinion the Courts should not discourage counsel from providing such practical assistance as Ms Dixon has demonstrated could have been provided to the judge in this case. The judge made it clear that he was inviting assistance in the exercise of his task; he was not inviting counsel to usurp his role.
35 In this case, for the reasons given by Buchanan, J.A., I consider that sentencing error vitiated the sentence, and the sentencing discretion is therefore re-opened. It is therefore unnecessary to resolve the ground under which complaint is made that the sentence was manifestly excessive. I leave open the question whether the current sentencing range for manslaughter offences pays too little regard to the intention of Parliament, as manifested by the increase in the maximum sentence, to highlight the seriousness of the offence. The range of conduct embraced by manslaughter verdicts makes it an offence for which it is extremely difficult to impose rigid standards as to
what constitutes an appropriate sentence.
36 Upon re-sentencing, I would impose the sentence proposed by Buchanan, J.A. Without deciding whether the sentence imposed by the judge was manifestly excessive, I nonetheless consider that had the judge received the assistance which we received from counsel on both sides on the appeal, then he would have imposed a lower sentence than he did impose.
37 Save for the matters of emphasis discussed above, I agree with the reasons stated by Buchanan, J.A. in concluding that the appeal should be allowed, and I agree with the orders proposed by his Honour.