Still plucking figures out of the air? Markarian and the affirmation of the instinctive synthesis

The High Court of Australia recently had the opportunity to reconsider the appropriate sentencing methodology to be adopted in the sentencing of offenders under Australian criminal law in the case of Markarian v The Queen. The High Court had to decide whether to continue with the instinctive synthesis approach to sentencing or a process that exposed in greater clarity the basis upon which sentencing was to occur. Ultimately, a majority of the Court favoured the continuance of the instinctive synthesis approach to sentencing in criminal cases. The article will consider the decision in Markarian and the implications that it will have for the sentencing of offenders in the States and Territories of Australia.

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. 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’. 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’ over the need for transparency and a step-wise systematic approach to sentencing.

What's instinct got to do with it? A blueprint for a coherent approach to punishing criminals

As a result of the instinctive synthesis approach to sentencing, decisions are often based on the intuitive inclinations and sentiments of sentencers, as opposed to binding rules and principles. In particular, insufficient regard is paid to the purposes and objectives that can be achieved through a state-imposed system of punishment. Momentum is gathering for the High Court to revisit the manner in which the sentencing inquiry is undertaken. We believe that the court should use the opportunity to implement fundamental reform in sentencing and direct the sentencing process down a more transparent and forensic path. We suggest that there are seven basic steps that need to be undertaken to achieve enlightened sentencing reform. Ideally this is a role for the legislature. However, given the populist climate in which we live we have little confidence that the legislature will undertake such an exacting task – one which would almost certainly lead to a less severe sentencing regime. The judiciary offers the strongest hope that at least some of these steps will be taken. This article offers a blueprint for how such reform can be implemented. The first step is simply to assume that the institution of state-imposed punishment is justified – this has already been undertaken. The second is to select the theory which best justifies punishing wrongdoers. Thirdly, public opinion must be ignored in developing sentencing principle. Next it must be determined which objectives (such as deterrence and rehabilitation) can be achieved through sentencing. The fifth step involves matching the punishment to the crime. Step six is to critically analyse the foundation, and reassess the relevance, of the hundreds of aggravating and mitigating considerations that presently affect the sentencing calculus. Finally, sentencing law and practice should be subject to ongoing reform to take into account emerging empirical evidence concerning the positive benefits that can be achieved through sentencing.

Australian sentencing : principles and practice

Australian Sentencing: Principles and Practice explains the rules, principles, policies and practices that underpin the manner in which people are punished for criminal behaviour in Australia. As well as dealing with sentencing law today, the book provides an extensive analysis of the wider policy, moral, and political consideration which shape sentencing law. It analyses and evaluates existing standards and practices, and suggests how sentencing law should be reformed so that it operates in a fairer, more efficient and effective manner.

Content: Part A: 1. The nature of sentencing and theories of punishment; 2. Plucking figures from the air: the instinctive synthesis; 3. The objectives that are attainable through sentencing; 4. High Court sentencing jurisprudence; Part B: 5. The principle of proportionality; 6. Aggravating factors; 7. Mitigating considerations; 8. The relevance of a guilty plea to sentence; 9. The relevance of prior criminality; 10. Aboriginality; Part C: 11. The nature of criminal sanctions; 12. Imprisonment; 13. Intermediate sanctions; 14. Discharges and bonds, fines and disqualifications; Part D: 15. The way forward ? strategic sentencing.

The paradox of parity in sentencing in Australia: the pursuit of equal justice that highlights the futility of consistency in sentencing

Parity in sentencing is the principle that offenders who are parties to a crime should, all things being equal, receive the same penalty. While it is a well-established principle, the reality is that its scope is greatly limited by the largely unfettered nature of the sentencing calculus. Things are rarely equal between offenders due to the large number of variables that current orthodoxy maintains are relevant to sentencing. This makes application of the parity principle unpredictable, resulting in the paradox that parity highlights the unfairness that it is meant to mitigate: inconsistency in sentencing. This article contends that parity will remain an aspiration, as opposed to a concrete principle, until the instinctive synthesis approach to sentencing yields to a more transparent and precise decision-making process. The article focuses on Australian jurisprudence, but the analysis applies to all jurisdictions where sentencing has a considerable discretionary component (including the UK and the USA--apart from the limited circumstances where mandatory sentences apply).

A new low temperature synthesis route of fraipontite (Zn,Al)3(Si,Al)2O5(OH)4

A low temperature synthesis method based on the decomposition of urea at 90°C in water has been developed to synthesise fraipontite. This material is characterised by a basal reflection 001 at 7.44 Å. The trioctahedral nature of the fraipontite is shown by the presence of a 06l band around 1.54 Å, while a minor band around 1.51 Å indicates some cation ordering between Zn and Al resulting in Al-rich areas with a more dioctahedral nature. TEM and IR indicate that no separate kaolinite phase is present. An increase in the Al content however, did result in the formation of some SiO2 in the form of quartz. Minor impurities of carbonate salts were observed during the synthesis caused by to the formation of CO32- during the decomposition of urea.

Synthesis and characterization of K2Ca5(SO4)6· H2O, the equivalent of görgeyite, a rare evaporite mineral

Görgeyite, K2Ca5(SO4)6··H2O, is a very rare monoclinic double salt found in evaporites related to the slightly more common mineral syngenite. At 1 atmosphere with increasing external temperature from 25 to 150 °C, the following succession of minerals was formed: first gypsum and K2O, followed at 100 °C by görgeyite. Changes in concentration at 150 °C due to evaporation resulted in the formation of syngenite and finally arcanite. Under hydrothermal conditions, the succession is syngenite at 50 °C, followed by görgyeite at 100 and 150 °C. Increasing the synthesis time at 100 °C and 1 atmosphere showed that initially gypsum was formed, later being replaced by görgeyite. Finally görgeyite was replaced by syngenite, indicating that görgeyite is a metastable phase under these conditions. Under hydrothermal conditions, syngenite plus a small amount of gypsum was formed, after two days being replaced by görgeyite. No further changes were observed with increasing time. Pure görgeyite showed elongated crystals approximately 500 to 1000 µ m in length. The infrared and Raman spectra are mainly showing the vibrational modes of the sulfate groups and the crystal water (structural water). Water is characterized by OH-stretching modes at 3526 and 3577 cm–1 , OH-bending modes at 1615 and 1647 cm–1 , and an OH-libration mode at 876 cm–1 . The sulfate 1 mode is weak in the infrared but showed strong bands at 1005 and 1013 cm–1 in the Raman spectrum. The 2 mode also showed strong bands in the Raman spectrum at 433, 440, 457, and 480 cm–1 . The 3 mode is characterized by a complex set of bands in both infrared and Raman spectra around 1150 cm–1 , whereas 4 is found at 650 cm–1.

Synthesis of profluorescent isoindoline nitroxides via palladium-catalysed Heck alkenylation

The synthesis of a new structural class of isoindoline nitroxides (aminoxyls), accessible via the palladium-catalysed Heck reaction, is presented. Reaction of the aryl bromoamine, 5-bromo-1,1,3,3-tetramethylisoindoline (4) or dibromoamine, 5,6-dibromo-1,1,3,3-tetramethylisoindoline (5) or the analogous bromonitroxides 6 and 7 with methyl acrylate gives the acrylate substituted tetramethylisoindoline amines 8 and 10 and nitroxides 12 and 14. Similarly, the reaction of the aryl bromides and dibromides 4–7 with methyl 4-vinylbenzoate gives the carboxystyryl substituted tetramethylisoindoline amines 9 and 11 and the analogous nitroxides 13 and 15. The carboxystyryl tetramethylisoindoline nitroxides demonstrate strongly suppressed fluorescence, which is revealed upon removal of the free radical by reduction or radical coupling.