Instinctive Synthesis

The approach that sentencing judges undertake in making sentencing decisions is ‘instinctive synthesis’.

In Australia The High Court has affirmed that the ‘instinctive synthesis’ approach is the appropriate method for determining a suitable sentence.

Where does the term originate ?

The term originates from the Full Court of the Supreme Court of Victoria decision of R v Williscroft, where Adam and Crockett JJ stated:

‘Now, ultimately every sentence imposed represents the sentencing judge’s instinctive synthesis of all the various aspects involved in the punitive process’.

What is Instinctive Synthesis?

In Markarian v The Queen [2005] HCA 25 McHugh J described this approach at [51] 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.

The alternative approach to this method is the two-step approach. This approach involves a sentencing judge setting an appropriate sentence commensurate with the objective severity of the offence and only then making allowances up and down, in light of relevant aggravating and mitigating in the circumstances.

The two-step approach was rejected in Markarian v The Queen,[28] where it was noted:

‘Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison’.[29]

Sentencing is not a mathematical exercise

In Barbaro v The Queen [2014] HCA 2 the Court affirmed that sentencing is not a mathematical exercise, stated at [34]:

“Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentencing cannot, and should not, be broken down into some set of component parts. As the plurality said in Wong v The Queen, “[s]o long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform”

The process of instinctive synthesis is a mechanism whereby sentencers make a decision regarding all of the considerations that are relevant to sentencing, and then give due weight to each of them, and then set a precise penalty.

Accordingly there is no single correct sentence, and that the ‘instinctive synthesis will, by definition, produce outcomes upon which reasonable minds will differ’.

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September 4, 2021

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April 28, 2020

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April 28, 2020

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