Four Models Of Judicial Reasoning In Sentencing

• Author: Graeme Brown
• Position: LLB (Hons), LLM, MSc, MJur (Dunelm), PhD (Edin), Dip LP, Cert FMS, NP
• Pages: 55-73

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FOUR MODELS OF JUDICIAL REASONING IN

SENTENCING

Abstract

The passing of sentence by a judge on a convicted offender comprises the most public stage of the criminal justice

process, but how do judges go about this task? In particular, how does the judge arrive at a sentence that

adequately reflects the seriousness of the crime and the circumstances of the individual offender, whilst still taking

account of the interests of society? This article reviews the sentencing methodology used in various common law

jurisdictions, from discretionary-based approaches to the use of presumptively binding, numerical guidelines. It

concludes that justice is best served by an approach that achieves individualisation in sentencing through the use of

a wide, but guided, judicial discretion.

Author: Dr Graeme Brown, LLB (Hons), LLM, MSc, MJur (Dunelm), PhD (Edin), Dip LP, Cert FMS,

NP. The author is a Solicitor (Scotland), Assistant Professor in Criminal Law, Durham University, and

Honorary Fellow in Law, University of Edinburgh.1

Introduction

‘Trying a case is as easy as falling off a log. The difficulty comes in knowing what to do

with an accused once they have been found guilty’.2

One of the most difficult and fundamental problems in sentencing is how the judge ought to

approach the sentencing task in terms of a methodology or system of decision-making.3

Sentencing judges in many common law jurisdictions have traditionally enjoyed a wide

sentencing discretion. In recent years, however, attempts have been made by various bodies –

including appellate courts, the legislatures, and sentencing commissions or councils – to guide

judges’ sentencing discretion. This article explores four distinct methods, or systems, of judicial

decision-making employed in sentencing: the so-called ‘instinctive synthesis’ approach; the

‘tiered’ or ‘staged’ approach; the use of ‘principled discretion’ through the use of appellate

sentencing guidelines; and finally the ‘algorithmic’ approach, involving the use of presumptively

binding guidelines set by a sentencing council. Each of these methodologies is associated with a

particular jurisdiction or jurisdictions. Each methodology structures the sentencing judge’s

decision-making to a greater or lesser degree, with important implications for the attainment of

justice in the individual case.

Judicial reasoning in the sentencing process: Four models of

sentencing methodology

The ‘instinctive synthesis’

The sentencing methodology that allows the widest discretion in sentencing is that of ‘instinctive

synthesis’. In this approach, judges adopt a holistic view of the particular case and impose

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1 This is an expanded version of my paper ‘Judicial Reasoning in Sentencing’ delivered at the Committee for Judicial Studies

National Conference, held at Dublin Castle on 16 November 2018. I would like to express my thanks to Mr Justice John

Edwards for his kind invitation to present at the conference. I would also like to thank my wife, Clair Woods-Brown, for all her

support during the preparation of both papers. All views expressed in this paper are my own.

2 McArdle J, cited in Justice Christine French, ‘The Role of the Judge in Sentencing: From Port-Soaked Reactionary to Latte

Liberal – The New Zealand Law Foundation Ethel Benjamin Commemorative Address 2015’ (2015) 33 Otago Law Review 33, 34.

3 Christopher Corns, ‘Destructuring Sentencing Decision-Making in Victoria’ (1990) 23 Australian & New Zealand Journal of

Criminology 145.

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sentence without recourse to any externally imposed guideline structure. The sentencing task was

first articulated in these terms by the Court of Criminal Appeal of Victoria in R v Williscroft:

Now, ultimately every sentence imposed represents the sentencing judge’s instinctive

synthesis of all the various aspects involved in the punitive process. Moreover, in our

view, it is profitless … to attempt to allot to the various considerations their proper part

in the assessment of the particular punishments presently under examination.4

The Court in Williscroft acknowledged that this model of sentencing amounts essentially to a

subjective judgment, largely intuitively reached, by the judge as to what punishment is

appropriate.5 The Court then referred to an earlier decision, that of the Supreme Court of New

South Wales in R v Geddes.6 In Geddes the Supreme Court had unsuccessfully attempted to set out

a rational principle for determining whether a sentence was inadequate. The Supreme Court

observed that it was easier to see when a wrong principle had been applied than to lay down

rules for solving particular cases. In particular, the Court in Geddes had to satisfy itself with the

conclusion that in determining the question of whether a particular sentence was unduly lenient,

or indeed too severe, ‘… the only golden rule is that there is no golden rule’.7 This led the Court

in Williscroft to stress that the sentencer’s judgment as to what is an appropriate sentence in any

given case must depend upon his or her knowledge of the sentences that have been imposed for

the same or similar offences. This knowledge, the Court noted, is derived from ‘personal

experience’.8

The decision in Williscroft thus expressly endorses the view that the subjective judgment of the

judicial officer is an acceptable basis for determining the appropriate sentence.9 The decision also

suggests that sentencing cannot be undertaken in a systematic manner. For the Williscroft Court,

the decision as to sentence is simply the result of a subjective assessment by the judge; it is

categorically not a process involving the application of authoritative and ascertainable norms to a

particular factual situation.10

The desirability of the instinctive synthesis approach was later affirmed by the Victorian Court of

Criminal Appeal in R v Young.11 Here, the Court stressed the discretionary and individualised

nature of the sentencing task. As the circumstances of particular offences and particular

offenders are ‘infinitely various’, the Court noted that the task of the sentencing judge had never

been regarded as capable of being confined within rigid formulae; to hold otherwise would, it

was said, result in injustice.12 The Court in Young made it clear that instinctive synthesis was the

only legitimate approach to the sentencing task in the State of Victoria.13 Following the decision

in Young, the term ‘instinctive synthesis’ entered into common usage as a description of the

sentencing process throughout Australia, becoming the standard sentencing approach in most

Australian jurisdictions.14 In Australia, ‘instinctive synthesis’ has since come to represent the

sentencing process itself. As Abbs explains, the descriptive statement of the Court in Williscroft has,

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4 [1975] VR 292, 300 (Adam and Crockett JJ).

5 ibid.

6 (1936) 36 SR (NSW) 554.

7 ibid, 555.

8 Williscroft (n 4), 301.

9 Neil Hutton, ‘Sentencing, Inequality and Justice’ in Cyrus Tata and Neil Hutton (eds) Sentencing and Society – International

Perspectives (Ashgate 2002), 553.

10 Mirko Bagaric and Richard Edney, ‘What’s Instinct Got to Do with It? A Blueprint for a Coherent Approach to Punishing

Criminals’ (2003) 27 Criminal Law Journal 119, 123.

11 [1990] VR 951.

12 ibid, 954 – 955; see also the later decision in Russell v The Queen [2011] VSCA 147, [57] (Kaye AJA).

13 [1990] VR 951, 960.

14 Mirko Bagaric, Punishment & Sentencing: A Rational Approach (Cavendish Publishing 2001) 14.