Sentencing Methodology: Two-tiered or Instinctive Synthesis?

• NCJ Number: 201993
• Author(s): Sally Traynor; Ivan Potas
• Date Published: December 2002
• Length: 16 pages
• Sale Source: Judicial Cmssn of New South Wales
• Publication Format: News/Media
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: Australia
• Note: Sentencing Trends & Issues, Number 25

Annotation

This paper discusses the pros and cons of two sentencing methodologies -- "two-tiered" and "instinctive synthesis" -- that have created a divergence of opinion in the High Court of New South Wales (Australia).

Abstract

The term "two-tiered" sentencing may apply to a variety of approaches to sentencing. It may refer to a two-step process in which the sentencing judge first considers the objective characteristics of the offense, namely, its severity, and then considers all the subjective circumstances of the offender that bear upon his/her culpability. The concept of "two-tiered" sentencing can also refer to a two-step process in which the sentencer first specifies a sentence regarded as proportionate to the crime or as otherwise appropriate to the circumstances of the case, and then, by reference to a particular factor, proceed to specify an amount by which that sentence is to be varied. To date, there does not seem to be a clear or single definition of what constitutes a two-stage sentencing approach. The relevant case law indicates that its meaning varies according to the context in which it is applied. The concept of "instinctive synthesis" in sentencing refers to the process whereby the sentencing judge "instinctively" synthesizes all the various factors involved in a particular case and arrives at a sentence. This paper discusses a case (R v. Whyte) decided by the New South Wales High Court that revealed a division in the Court on the appropriateness of the two types of sentencing methodology. The practice of the two-stage approach to sentencing has been traditional in New South Wales until relatively recent times, when it has been challenged on the basis of its tendency to give higher priority to certain sentencing factors rather than weighing and balancing all of the factors. The authors of this paper argue that there is no harm in retaining a two-tiered sentencing methodology wherein the sentencer determines the upper and sometimes lower limits of an appropriate sentence based on offense severity and then proceeds to "fine-tune" the sentence by reference to other considerations. These considerations should be identified (transparency) if they tend to increase or reduce the "appropriate" sentence. "Instinctive synthesis," on the other hand, is more "mysterious, idiosyncratic, and less open to analysis." 137 notes