Pursuing Consistency in an Individualistic Sentencing Framework: If You Know Where You're Going, How Do You Know When You've Got There?'
Krasnostein, Sarah, Freiberg, Arie, Law and Contemporary Problems
Sentencing in Australia is founded upon two premises that are in perennial conflict: individualized justice and consistency. The first holds that courts should impose sentences that are just and appropriate according to all of the circumstances of each particular case. The second holds that similarly situated offenders should receive similar sentencing outcomes. The result is an ambivalent jurisprudence that challenges sentencers as they attempt to meet the conflicting demands of each premise.
While there is an inherent tension between the premises of individualized justice ("individualism") and consistency ("comparativism"), (2) they both are fundamental to a fair sentencing system. These paradigms are not dichotomous but points at the ends of a spectrum, along which a balance can be struck. (3) In practice, sentencing judges do not act at either extreme. In Australia, the current balance heavily favors individualism over consistency.
In recent decades, common law jurisdictions have developed measures to reduce unjustified disparity in sentencing and generally encourage consistency of approach or outcome in like cases. Unjustified disparity violates fundamental tenets of the rule of law and the right to equality, erodes public confidence in the administration of justice, and has costly resource implications. Although the pursuit of this aim is noncontroversial, its manifestations are not. In particular, there is disagreement about the nature of disparity and a paucity of evidence regarding its extent. More problematically, there is a lack of evidence regarding the effectiveness of the measures that have been introduced to eliminate it. (4)
In this article, the competing paradigms of individualism and consistency are compared, the meanings of "consistency" and "disparity" are explored, a sample of the empirical evidence for unjustified disparity is identified, the measures adopted in Australia to encourage consistency are outlined, and the meager evaluative literature that attempts to assess these interventions is discussed.
More and better quantitative and qualitative data are needed to understand the extent of unjustified disparity as well as the effectiveness of the measures introduced to minimize it. In Australia, ineffectiveness of the measures adopted to encourage consistency may not reflect a failure of the measures themselves, but rather a failure of the predominantly individualist framework in which they operate. The ambivalent attitude of courts of appeal toward the importance of consistency requires review in order to promote fairer sentencing outcomes. (5)
INDIVIDUALIZED JUSTICE AND CONSISTENCY
Australia has nine sentencing jurisdictions--eight states and territories plus a federal system. (6) Most sentencing occurs at the state level. (7) The High Court of Australia is the highest court in the country, with appellate jurisdiction over all other courts. Each state and territory has its own court hierarchy, culminating in the appeals division of its Supreme Court. Trial divisions of the Supreme Courts hear major criminal matters, mostly murders and some serious drug cases. Most jurisdictions have two levels of inferior courts: County or District Courts hear the majority of serious criminal matters (with juries), and Magistrates' or Local Courts hear less serious criminal matters (without juries).
The basic framework is that federal, state, and territory criminal legislation creates offenses and prescribes maximum penalties. Criminal statutes sometimes provide guidance regarding the use of certain sanctions by listing, without ranking, sentencing purposes and aggravating and mitigating factors, which judges may be required to consider or which may be merely advisory. (8) Within this statutory structure, judicial discretion is regulated by the common law as developed by appellate courts.
The tension between individualized justice and consistency is reflected in the potential difference between a sentence based on the circumstances of an individual case and one based on comparison with similar cases. …