Inconsistency in sentencing outcomes in the Magistrates’ Court of Victoria: Implications for the instinctive synthesis

C. Farmer1*, I. Parsons2, M. Bargaric3

1 Dr Clare Farmer, School of Humanities & Social Sciences, Deakin University
2 Ian Parsons, Deakin University
3 Professor Mirko Bargaric, School of Law, Deakin University

 *corresponding author: clare.farmer@deakin.edu.au

Sentencing law has been criticised for being vague and inconsistent, principally because the reasoning employed in reaching sentencing decisions does not require judges to systematically explain how they arrived at a particular sanction. In Victoria, the ‘instinctive synthesis’ is a largely opaque process whereby sentencing courts position offence and offender specifics within relevant sentencing principles, while taking into account aggravating and mitigating considerations, to determine the appropriate sanction. Despite criticisms of this approach, few studies have examined the degree of consistency in sentencing decisions. This paper draws upon an ongoing study which is attempting to at least partially fill this knowledge gap. It summarises the initial findings of an analysis of sentencing data from over 71,000 offences over a four-year period in four different Victorian Magistrates’ Court locations. The study covers three offence categories (assault, theft and disqualified driving) which relate to the three primary types of criminal offending; crimes against the person, property, and regulatory transgressions.

The preliminary research findings reveal marked differences between the four locations in the frequency with which both fines and imprisonment are imposed for the same offence categories. While there is less divergence regarding the length of the prison terms and the quantum of fines that are imposed, the lack consistency in sentencing determinations examined in the study suggests that sentencing decisions are marked by an unacceptably high level of disparity. These initial findings are considered within broader implications for sentencing methodology in Victoria.

Biography

Dr Clare Farmer lectures in Criminology at Deakin University. Her research interests include youth crime, human rights and police discretionary powers, as well as sentencing practices. She served as a Magistrate in England prior to emigrating to Australia.

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