Academic journal article The High Court Quarterly Review

High Court Sentencing Jurisprudence

Academic journal article The High Court Quarterly Review

High Court Sentencing Jurisprudence

Article excerpt

1 Introduction

Sentencing law in Australia has traditionally lacked an overarching framework and has suffered from a lack of doctrinal coherency. However, slowly we are moving towards a degree of convergence regarding several fundamental aspects of sentencing. To a large degree this has occurred as a result of sentencing principles set out by the High Court. This paper examines the sentencing jurisprudence emanating from the High Court. This jurisprudence has resulted in the maturation of Australian criminal law and importantly has seen the articulation of distinct Australian sentencing principles. This is a welcome development and perhaps will allow for the promotion of consistency of sentencing and a framework that is underpinned by fundamental and clear principles. This will hopefully result in the principal consideration impacting on sentencing being nature of the offence, as opposed to which jurisdiction the sentence is to be imposed in (1).

Historically, the High Court of Australia has been disinclined to entertain appeals against sentence in criminal matters from State and Territory Supreme Courts. This began to change in the late 1970's as the Court granted special leave to a small number of matters involving questions of general sentencing principle (2). The amount of cases concerning sentencing increased during the 1980's (3) and the amount of the sentencing jurisprudence produced by the High Court in approximately the last fifteen years (4) has seen an even more pronounced emergence of what may be identified as Australian sentencing principles. This has been part of the general trend for the court to become more involved in criminal matters across the board. (5)

To examine how the High Court has reached this particular point in its sentencing jurisprudence, and the implications for Australian criminal law of this shift in judicial approach, it will first be necessary to examine the historical reluctance of the High Court to exercise its appellate jurisdiction in appeals against sentence. It is then proposed to examine the 'thawing' of the approach of the High Court to sentence appeals. To do this, the analysis will necessarily be historical to a degree and will involve the consideration of distinct historical periods of the High Court and how they have reflected a particular judicial ideology towards sentencing and how this has changed over time (6). The assumption that is made is that it is possible, from a historical perspective, to identify particular trends in relation to sentencing and, in particular, how the High Court has not only perceived its role in establishing Australian sentencing principles but in the content of substantive sentencing principles produced.

It will be contended that in the more recent history of the High Court, and despite a proclaimed reluctance to do so on the basis that it is for the Courts of Criminal Appeal of the States and Territories to perform this function (7), the Court has been active in the development and refinement of Australian sentencing principles. The resulting sentencing jurisprudence now makes it proper and appropriate to claim that there is a distinctly Australian approach to the sentencing of offenders. That is, there is now in existence a body of Australian sentencing principles. There are now in existence a comprehensive range of authorities detailing basic and fundamental aspects of the sentencing process that apply throughout Australia notwithstanding differences in statutory regimes in the States and Territories in the sentencing of offenders.

2 Early Decisions of the High Court on Sentencing: 1903-1935

The High Court of Australia was established--subject to appeals in certain instances to the Privy Council--as the ultimate Court of Appeal for Australia in 1903 (8). Established under the Commonwealth Constitution of Australia Act, the High Court and the scope of its powers are detailed in the Commonwealth Constitution. …

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