In Victoria, like most other Australian States and Territories, Judges and Magistrates adopt what is known as the ‘instinctive synthesis’ approach when sentencing a criminally accused. This has been defined by The High Court as:
“the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.”
This means that judges in Melbourne must take into account all relevant material, make assessments as to the quality and weight that should be attributed to each consideration, and then quantify community and legal values against them and the offending, to produce an outcome. This quantification may be in terms of the length of imprisonment to be served, hours of community work to be completed, or monetary amount of a fine.
This approach is favoured over ‘two-tiered’ sentencing which was disapproved by the High Court. Under this approach, a judge first determines the sentence with regard to the case’s objective factors before increasing or decreasing the sentence with reference to the accused’s personal circumstances.
In undertaking the criminal law sentencing process, judges and magistrates must have regard to certain factors, which are set out in both state and federal legislation. For example, Victoria’s Sentencing Act 1991 guidelines states that, when sentencing an offender, the court must have regard to the following:
– The maximum penalty for the offence,
– The nature and gravity of the offence,
– The offender’s degree of responsibility,
– The impact on the victim (if any),
– Any loss or damage caused by the offending,
– Whether the offender pleaded guilty and, if so, at what stage they did so,
– The offender’s previous character,
– Any other aggravating or mitigating factors concerning
