A full description and analysis of the study will be published as a monograph by The Federation Press in mid 2004, entitled A Question of Balance: How Judges Sentence. The judicial study was part of a project running from 1996–2001, with the interview phase conducted in late 1998/early 1999.
2.
See FreibergArieRossStuart, Sentencing Reform and Penal Change: The Victorian Experience (1999); and FreibergArie, ‘Sentencing Reform in Victoria: A Case-Study’ in ClarksonChrisMorganRod (eds), The Politics of Sentencing Reform (1995).
3.
Court observations or case studies would have also been useful, but were beyond the scope of the present study, which was also limited to adult offenders.
4.
For reasons of anonymity, gender analysis of the results was not undertaken; only six women were on the Bench at that time (out of a total of 52 potential participants). All judges participated anonymously.
5.
A transcript of each interview was sent to each judge to make corrections as required. Each judge was also sent an information sheet in advance, and asked to sign the required ethics consent form. It should be acknowledged that the survey instrument was designed with the assistance of Dr Simon Petrie, then Head of the School of Justice Studies at QUT. Two Queensland judges also assisted with preliminary research design and methodology, which is gratefully acknowledged.
6.
Regarding the situation in the US, see TonryMichael, Sentencing Matters (1996) ch 6.
7.
See, eg, discussion in AshworthAndrew, Sentencing and Criminal Justice, 3rd ed, (2000) 63.
8.
See also the findings of a Crown Court study into sentencing: AshworthAndrew, Sentencing in the Crown Court: Report of an Exploratory Study, Occasional Paper no 10, Centre for Criminological Research, University of Oxford, 1984, 50; FoxRichardFreibergArie, Sentencing: State and Federal Law in Victoria (1999); and statements in court judgments, eg, R v Jurisic (1998) 45NSWLR209, 215 and 250 (SpigelmanCJSullyJ).
9.
Since R v Williscroft [1975] VR 292, and later R v Young [1990] VR 951.
10.
See, eg, Thomson and Houlton (2000) 115A Crim R104.
11.
Ryan v The Queen (2001) 206CLR267, 310 ‘instinctively synthesise’ (HayneJ), 322 ‘intuitive process’ (CallinanJ). Contrast however the comments of KirbyJ, in Cameron v The Queen (2002) 209CLR339, 362. See also Leader-ElliotIan, ‘Instinctive Synthesisers in the High Court’ (2002) 26Criminal Law Journal5.
12.
See discussion in IndermaurDavid, ‘Offender Psychology and Sentencing’ (1996) 31Australian Psychologist15, 15.
13.
Tonry, above n 6, 178, and see also criticisms in Ashworth, above n 7, 63.
14.
See, eg, Penalties and Sentences Act 1992 (Qld), Pt 9A.
15.
See discussion in MorganNeil, ‘Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?’ (2000) 24Criminal Law Journal164.
16.
See a full description of the US system in Tonry, above n 6.
17.
(1998) 45NSWLR209.
18.
See discussion and arguments in relation to structuring discretion by this method in MackenzieGeraldine, ‘Achieving Consistency in Sentencing: Moving to Best Practice?’ (2002) 22University of Queensland Law Journal74.
19.
See New South Wales Law Reform Commission, Sentencing, Discussion Paper No 33 (1996) 27.
20.
This was consistent also with the findings from the Crown Court study: Ashworth, above n 8, 55; and a Canadian judges study: McCormickPeterGreeneIan, Judges and Judging (1990) 154–5.
21.
See also almost identical statements of sentencing purposes in other Australian jurisdictions: Sentencing Act 1991 (Vic) s 5(1); Sentencing Act 1995 (NT) s 5(1); and Crimes Act 1900 (ACT) s 429. Other Australian jurisdictions have differing legislative statements on sentencing purposes.
22.
See eg, FoxFreiberg, above n 8, 203; and Ashworth, above n 7, 62.
23.
As noted, above n 1, a full description of the study and its findings will appear as A Question of Balance: How Judges Sentence.
24.
Note also Recommendation 7, Australian Law Reform Commission, Sentencing, Report No 44 (1988), recommending that just punishment be adopted as the predominant sentencing aim.
25.
There is an extensive body of literature on just desserts; for a summary and further reading see von HirschAndrewAshworthAndrew, Principled Sentencing: Readings on Theory and Punishment (2nd ed, 1998) ch 4.
26.
For further reading on rehabilitation, see ibid, ch 1.
27.
In relation to deterrence, see ibid, ch 2.
28.
HartH L A, Punishment and Responsibility: Essays in the Philosophy of Law (1968) 3.
29.
For an excellent discussion on the law and order debate see HoggRussellBrownDavid, Rethinking Law and Order (1998).
30.
Feature series by reporter CameronSimon, The Cairns Post, 12, 19 and 26 April 2003. This series won the 2003 Queensland Media Award Best Feature Article Section, and is a finalist in the 2003 North Queensland Media Awards.
31.
See also recommendations to the same effect by the Australian Institute of Judicial Administration: ParkerStephen, Courts and the Public, Australian Institute of Judicial Administration Incorporated (1998) 156–168.
