Quantification and the Instinctive Synthesis
54 There are two distinct but interrelated aspects of a guideline judgment, as proposed in the Crown submissions, involving matters of quantification. First, whether or not the Court should encourage trial judges to state the amount of discount, either in percentage terms or by an indication of the sentence that they would otherwise have imposed. Secondly, whether the Court should lay down a percentage, or range, for a discount for a plea of guilty and, if so, what matters of relevance to the sentencing process should be encompassed within any such percentage or range.
55 Each of these two aspects of the proposed guideline judgment would, if adopted, constitute qualifications on the approach to sentencing which has generally found favour in Australia, to the effect that it is undesirable to separately quantify any of the multifarious elements involved in the process of determining a final sentence (subject of course to express statutory provision). This Court has always recognised that the purposes of punishment include a wide range of incommensurable, and sometimes conflicting, objectives - deterrence, retribution, rehabilitation, and public condemnation - which must be brought together by a sentencing judge in what the Full Court of the Supreme Court of Victoria has aptly described as an "instinctive synthesis". (R v Williscroft [1975] VR 292 at 300). That judgment referred with approval to the dictum of Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 at 555, that in the case of sentencing "the only golden rule is that there is no golden rule".
56 The inapplicability of any formulaic approach to the exercise of a sentencing discretion has frequently been emphasised. For example, McHugh, Hayne and Callinan JJ said in Pearce v The Queen supra at [46]:
"Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision."
57 The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.
58 On occasions a statute may require a court to expressly indicate what sentence it would have imposed if certain events did not, or do not, occur. This is the case under s21E of the Crimes Act 1914 (Cth), where a court must specify the sentence that would have been imposed if the offender had not undertaken to cooperate with the authorities. There is no reason in principle why the common law principles of sentencing could not establish other such specific exceptions to the general approach, without altering the basic character of the process.
59 The different approaches are often expressed in terms of a contrast between the "instinctive synthesis" approach, on the one hand, and a "two-tier" approach to sentencing, on the other. This contrast has arisen in a number of different contexts, including:
· the separate identification of a sentence "proportionate" to the gravity of the offence and the actual sentence imposed. (R v Young [1990] VR 951 esp at 954-5, 957, 960-961 per Young CJ, Crockett and Nathan JJ).
· the separate identification of a sentence appropriate to the objective circumstance of the case and the effect of mitigating circumstances. (R v Garforth (New South Wales Court of Criminal Appeal, 23 May 1994, unreported at 3-4 per Gleeson CJ, McInerney and Mathews JJ); R v Lett (New South Wales Court of Criminal Appeal, 27 March 1995, unreported at 8-9 per Hunt CJ at CL with whom Sully and Levine JJ agreed)).
· express credit for surrendering privileges, such as extradition rights. (AB v The Queen (1999) 198 CLR 111 at [99] per Kirby J, contra [12]-[19] per McHugh J and [113]-[120] per Hayne JA).
· Discount for assistance. (R v Gallagher supra at 227-228, 230 per Gleeson CJ, 233-234 per Hunt J; R v Perrier (No 2) [1991] VR 697 at 725-727 per McGarvie J (with whom Murphy J agreed), 728-731 per Brooking J (dissenting); R v Harris and Simmonds (1992) 59 SASR 300 at 302 per King CJ; R v Nagy [1992] 1 VR 637 at 643-645 per McGarvie J (dissenting)).
· Discount for guilty plea. (R v Beavan (New South Wales Court of Criminal Appeal, 22 August 1991, unreported at 12-15 per Hunt J with whom Badgery-Parker and Abadee JJ agreed); R v Holder supra at 258 per Street CJ and 270 per Priestley JA; R v Morton [1986] VR 863 at 868 per Young CJ, King and Beach JJ at 868; Pavlic v R (1995) 5 TasR 186; Verschuren v The Queen (1996) 17 WAR 467).
60 The proposition that a "two-tiered" approach to sentencing is erroneous has recently been supported by two judges of the High Court, McHugh and Hayne JJ in AB v The Queen supra. These were dissenting judgments, however only the judgment of Kirby J, esp at [99], suggests a different approach. The other members of the majority in AB, Gummow and Callinan JJ at [55], determined the case on the basis that legal error had been shown by reason of the failure to take into account considerations relevant to the sentencing process.
61 McHugh J referred to the Appellant's claim for a "discount" for the conduct that was relevant - waiver of the rule of speciality with respect to extraditable offences. His Honour said at [12]:
"… the claim could have validity only if sentencing was a process that involved a notional sentence which is then increased or reduced arithmetically according to individual factors relevant to the offence and the accused person."
62 His Honour approved the "instinctive synthesis" approach as expressed in Williscroft and referred to the conflicting objectives of sentencing. His Honour said [15]-[18]:
"The two-tiered approach of determining an objective sentence and then adjusting it is in conflict with the discretionary nature of the sentencing process. Discretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks. …
To adopt a two-tiered approach to sentencing by beginning with an objectively determined sentence which is then arithmetically adjusted to take account of various factors is also a process which is plainly unsuited to the sentencing process in many cases. … If the judge first formulates an objectively determined sentence, he or she has only relied on part of the relevant circumstances and has effectively allowed that part of the circumstances to dominate the sentencing process. Worse still, there is a danger that the objectively determined sentence will be formulated by reference to abstractions derived from the circumstances, rather than by reference to the concrete facts of the case.
…
The factors bearing on the sentence will vary from case to case. Frequently, they will point in different directions. The task of the sentencing judge or magistrate is not to add and subtract from an objectively determined sentence but to balance the various factors and make a value judgment as to what is the appropriate sentence in all the circumstances of the case …"
63 Hayne J made express reference to the case of a guilty plea at [113]-[114] and referred to the submission made to the Court that a further reduction in sentence should have been afforded to the Appellant by reason of the waiver of his extradition rights. His Honour at [115]-[116] said there were several flaws in the argument as follows:
"First, it assumes that sentencing an offender is some mechanical or mathematical process. It is not. Nobody can identify, let alone define, some precise relationship between the complex and infinitely various elements that bear upon what sentence is to be imposed on an offender such as this appellant. No calculus will reveal some mathematical relationship between this appellant's remorse, the harm he has inflicted on his victims and society's denunciation of what he did to them. A sentencing judge can do no more than weigh these and the many other factors (such as retribution and deterrence) that bear upon the question and express the result as several terms of imprisonment to be served, wholly or partly concurrently or consecutively. Remorse, harm, denunciation, retribution and deterrence - in the end all these and more must be expressed by a sentencing judge in units of time. That is a discretionary judgment. It is not a task that is to be performed by calculation. Resort to metaphors such as 'discount' or 'allowance' must not be taken as suggesting that it can be.
Secondly, leniency may be given to an offender where to do so advances some policy of the criminal law. In any case in which an accused person waives his right not to be prosecuted for non-extradition offences it may be expected that his waiver would attract leniency. It may be accepted that there are powerful policy reasons for encouraging and rewarding such conduct. But they are the same policy reasons that operate in the case of confession to previously unknown crime. Waiver of rights will usually reveal remorse and contrition; the State is saved the cost of further protracted and expensive proceedings; the victims are vindicated without their having to suffer the ordeal of giving evidence at the trial. And as is the case where an offender confesses to previously unknown crime, it may be thought probable that no conviction would have been recorded had the offender not taken the step, as he did in this case, of waiving his rights."
64 Kirby J, however, said that an express reference to the credit was desirable and suggested that quantification was permissible. His Honour said at [99]-[100]:
"Unless the sentencing judge were to mark in a specific and express way the credit to which the appellant was entitled for having surrendered his privilege to insist on the rule of speciality under extradition law, the outcome of this case would not encourage others, in a like position, to act as he did. (cf R v Winchester (1992) A Crim R 345 at 350: 'The leniency is afforded in order to encourage early pleas of guilty so that the criminal list is more expeditiously disposed of and so that other cases, in which there is a genuine issue to be determined, will be brought on for hearing without delay.') On the contrary, to the extent that the decisions of the sentencing judge and of the majority of the Court of Criminal Appeal became known to the legal profession, they would tend to reinforce the provision of advice to persons extradited to Australia, as the appellant had been, to confess to no further offences and to insist upon the strict observance of the privilege derived from the rule of speciality accorded to them by extradition law. That cannot be a result which is in the interests of the criminal justice system, of accused persons, of the victims of crime or of society. It is not, therefore, a result which a proper approach to sentencing would uphold.
Due and explicit regard ought to have been given to the significance of the appellant's waiver of extradition rights, i.e. his non-insistence on the rule of speciality. It was a consideration different from, and additional to, contrition, the clearing up of crime difficult to detect and the saving of public costs."