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The Role of Guideline Judgments in the Law and Order Debate in Australia

journal contribution
posted on 2023-05-16, 14:44 authored by Catherine WarnerCatherine Warner
Guideline judgments have been a prominent sentencing issue in Australia since October 1998 when the Chief Justice of New South Wales handed down Australia's first "guideline judgment'. Spigelman CJ went to some lengths to ensure that this event was given plenty of exposure in the press and guideline judgments were embraced by the New South Wales Government as a key element of its law and order policy. Guideline judgments have since been handed down in a further four cases. One of them, Wong (1999) 48 NSWLR 340; 108 A Crim R 531, went on appeal to the High Court where a number of judges strongly criticised numerical guidelines. The New South Wales Govemment reacted angrily with threats to introduce mandatory sentencing if the High Court continued to criticise guideline judgments. Subsequently, the Court of Criminal Appeal in Whyte [2002J NSWCCA 343 responded to Wong v The Queen (2001) 207 CLR 584; [2001 J HCA 64 anci endorsed the practice of numerical guidelines, but less that three weeks after this decision the New South Wales Government announced a new legislative sentencing scheme which has the potential to seriously undermine judiciaIly created guidelines. While New South Wales is the only state to have actuaIly promulgated "guideline judgments" in name, in Western AVstralia there is statutory provision for gUidf!/ine judgments and they are under consideration in South Australia, Victoria and Tasmania. Although, in an election climate, guideline judgments are no longer seen by either the Labor Government or the Coalition Opposition as a sufficient means of meeting community demands for a tougher approach to crime, this article argues that they have considerable potential as a means of reinforcing public confidence in the integrity of the process of sentencing without the need to resort to punitive populist policy measures such as minimum sentences.


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Criminal Law Journal








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