Inconsistencies in sentencing of theft offenders in Victoria: implications for the 'instinctive synthesis'

Sentencing law has been criticised for being vague and inconsistent. This is principally because the reasoning employed in reaching sentencing decisions does not require judges to systematically explain how they arrived at a particular sanction. Instead the ‘instinctive synthesis’ is a process whereby sentencing courts take into account relevant sentencing principles and aggravating and mitigating considerations, to arrive at a global decision regarding the appropriate sanction. Despite criticisms of this approach, there are few studies that evaluate the degree of consistency in sentencing decisions. This article attempts to at least partially fill this knowledge by reporting the findings of a wide-ranging study into sentencing outcomes for theft offences in four courts in Victoria. The study is significant because it relates to nearly 20 000 sentencing determinations over a 4-year period and compares sentencing outcomes in a single jurisdiction — where identical legal principles and rules operate. It notes that there is a considerable degree of inconsistency regarding sentencing outcomes between the courts, thereby calling into question the consistency and fairness of the current sentencing methodology.