Sentencing Review 2011-2012

In this review period (2011 to October 2012), the High Court has granted special leave in four sentencing appeals, three of these dealing with Crown sentencing appeals: Lacey v The Queen, Green v the Queen and Bui v DPP. A common thread in the first two decisions is a reluctance to remove the common law constraints and fetters on Crown appeals that erode the common law protections against double jeopardy. But in the third decision, Bui v DPP, the High Court made it clear. that the common law "principle" of double jeopardy is irrelevant in Commonwealth Crown sentencing appeals. The second part of the review revisits the perennial policy issue of constraints on sentencing discretion. It updates the discussion in last year's review on standard non-parole periods (SNPPs) and describes the abandonment of this approach in Queensland in favour of mandatory penalties for some repeat child sex offenders. It concludes with a critique of penal populism and a plea to policy-makers to reconsider more principled measures to constrain judicial discretion than mandatory sentences.