Sentencing: from Vagueness to Arbitrariness: the Need to Abolish the Stain That Is the Instinctive Synthesis

Criminal sanctions involve the deliberate infliction of hardship on offenders.1 In sentencing, the state acts in its most coercive and decisive manner: ‘the state may use its most awesome power: the power to use force against its citizens and others’.2 Despite the importance of the interests at stake in the sentencing realm, sentencing is arguably the least coherent, predictable and principled area of law. The High Court of Australia has not facilitated attempts to inject clarity and precision into sentencing determinations. It has repeatedly endorsed the ‘instinctive synthesis’ approach to sentencing, emphasising the need for ‘individual justice’3 over the need for transparency and a step-wise systematic approach to sentencing.