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The instinctive synthesis model of sentencing applied by Australian courts is a deliberately unstructured approach. It requires sentencers to consider all of the relevant factors in a single step to arrive at the appropriate sentence. There is no common decision-making process or methodology to which sentencers must adhere. Instead, instinctive synthesis is designed to allow sentencers maximum judicial discretion and flexibility so that they may deliver individualised justice with each sentence.

Doctrinal analysis and interviews with judges from the Victorian County Court, Supreme Court and Court of Appeal, suggest that the majority of sentencers are willing to be guided in general ways, for example through the application of sentencing principles, but are opposed to hard limits on their discretion. Many are willing to overlook issues of transparency and consistency surrounding instinctive synthesis in order to preserve their very broad discretion.

Sentencing judges in Victoria appear to have developed their own informal means of structuring sentencing decision-making. Addressing relevant factors under wide headings such as ‘objective seriousness of the offence’ and ‘factors relating to the offender’ suggests that judges are not necessarily opposed to approaching sentencing decision-making in a structured manner. In fact, the vast majority find it a useful means of organising the many different, at times competing, factors.

The informal process applied by sentencers is broadly similar to that in sentencing guidelines applied in England and Wales and proposed in Victoria. Such guidelines bring clarity, order and transparency to sentencing decision-making but are heavily opposed by many Australian sentencers, who often mistake the guiding or structuring judicial discretion as imposing strict limitations on discretion. This misunderstanding severely limits the prospect of securing judicial support for changes to the sentencing status quo.

 

Leila is a Stipendiary Lecturer in Criminal Law at Exeter College and Lecturer at St John's College, University of Oxford.