Three Strikes and You're Out—
It's Not Cricket
Colonization and Resistance
in Australian Sentencing
In Sentencing Matters, Michael Tonry comments that sentencing in 1995 in the United States would be unrecognizable to a judge of 1970(Tonry 1996, p. 6). The same could not be said of sentencing in Australia, where change is a constant but its magnitude is not large. An Australian judge of a quarter-century ago would most likely feel comfortable with today's sentencing process. Though he or she (the latter would be an innovation) might feel more constrained by the plethora of legislative provisions introduced to guide and shape his or her discretion and powers, the landscape would be relatively familiar. Assisted by a wider range of appellate cases, access to which would be facilitated by a new range of textbooks, encyclopedias, law reports, and, in some states, on-line access to the judgments, the modern sentencing judge can choose from a wider range of sentencing options: the smorgasbord would be richer, but not totally foreign or unknowable. Parole systems would still be in place, though not in identical forms. Although subjected to greater pressures from the media and politicians, and more sensitive to the role of the victim in the criminal justice system, yesterday's judge, presiding today (and there are still some), would remain fortified and comforted by the fact that he or she, whether as a judge at first instance or on appeal, was still the center of the Australian sentencing universe, relatively free of grids, guidelines, or graphs and indeed of administrative or legislative committees to create or impose such guidelines.
Until recent decades, Australia's legal history has been derived from, been modeled upon, or run parallel to English law. With colonization in the late eighteenth century came the English statute book and common law. Many of the innovations of the late nineteenth and twentieth centuries were drawn directly or indirectly from England, though some of the English innovations had been, in turn, influenced by events in the United States. To that extent, Australia has never been an insular jurisdiction.