Markarian v The Queen

What happened?

Markarian pleaded guilty to taking part in the supply of not less than a commercial quantity of heroin — 415 grams — and asked that four further offences be taken into account ([2]). The sentencing judge passed sentence; the Crown appealed; the New South Wales Court of Criminal Appeal allowed that appeal and resentenced him. The question in the High Court was whether the Court of Criminal Appeal had failed to apply or had misapplied orthodox sentencing principles in doing so ([1]).

What did the Court decide?

Markarian's appeal was allowed and the matter remitted to the Court of Criminal Appeal.

The joint judgment (Gleeson CJ, Gummow, Hayne and Callinan JJ) began from the discretion. Apart from express legislative provision, neither principle nor the grounds of appellate review "dictates the particular path that a sentencer ... must follow"; what is required is that all relevant considerations, and only relevant considerations, are taken into account, and "there is no single correct sentence" ([27]).

On method their Honours adopted what Gaudron, Gummow and Hayne JJ had said in Wong: a mathematical approach of increments to and decrements from a predetermined range "not only is apt to give rise to error, it is an approach that departs from principle", because attributing a particular weight to some factors while leaving others unaltered "may be quite wrong". The sentencer's task is "to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'" ([37]).

Two limits sit alongside that, and they are the part most often lost. Neither reasoning sequentially nor quantifying an allowance — for a plea of guilty, or assistance to authorities — "of itself, reveals error", and a provision such as s 21E of the Crimes Act 1914 (Cth) may require the sentencer to identify the amount of a reduction ([24]). And arithmetical deduction is not "absolutely forbidden" in a simple case: "[t]he law strongly favours transparency", accessible reasoning is owed to victims, parties, appeal courts and the public, and "[t]here may be occasions when some indulgence in an arithmetical process will better serve these ends". This case was not one of them, "because of the number and complexity of the considerations" ([39]).

Why does this case matter?

The Court distrusted its own label. "Instinctive synthesis" is borrowed language, and the joint judgment twice warned about how it reads: in Wong it was used "not as might be supposed, to cloak the task of the sentencer in some mystery", and here their Honours said an invitation to engage in it "is not desirable if no more is said or understood about what that means", because it "may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated" ([37], [39]). A student who treats the phrase as the answer has done the thing the Court was worried about.

Note also where the argument had to be pitched. The question in the High Court was "whether the Court of Criminal Appeal ... failed to apply or misapplied orthodox sentencing principles in upholding an appeal against sentence by the Crown" ([1]) — a question about how the court below reasoned. Markarian won it, and was still not resentenced here: the appeal was allowed, the Court of Criminal Appeal's sentence and orders set aside, and the matter remitted to that court.

Exam and application relevance

Do not build a tariff, and do not treat any quantified step as automatically fatal: [24] says sequential reasoning and a quantified allowance reveal no error by themselves, and a statute may compel one. Identify the purposes engaged, the aggravating and mitigating factors and the applicable statutory provisions, then show how they bear on one another — the objection in Wong is to weighting one factor while leaving the rest untouched, not to arithmetic as such.

Say which way the complexity cuts. [39] makes it a question of degree: a simple case weighing the circumstances of the crime against one or two other matters may tolerate arithmetic, and a case with many interacting considerations will not. And check the sentencing statute before you start. Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) had commenced on 15 April 2002, before Markarian's arraignment on 3 May, and neither the sentencing judge nor the Court of Criminal Appeal referred to it ([3]).

Check your understanding

The Court said the law "strongly favours transparency" and that arithmetic is sometimes the better way to serve it. Why was this case not one of those occasions?