Boulton v The Queen: The Resurrection of Guideline Judgments in Australia?

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Fair sentencing strives to balance an emphasis on individualised justice with an emphasis on consistency, both of which are essential in promoting just outcomes. While there is an inherent tension between the values, each is essential to a fair sentencing system. In grappling with these dual demands of proportionality and equality, however, different jurisdictions have placed different emphases on these two aspects of justice. The result has been two broad, competing paradigms of fairness in sentencing: ‘individualism’ versus ‘comparativism’. Guideline judgments are one way of promoting consistency in sentencing decisions while respecting the importance of maintaining sufficient discretion to individualise sentences. Despite statutory authorisation, however, the use of guideline judgments has been controversial because they challenge the individualist jurisprudence of the High Court, which characterises practical attempts to operationalise consistency as unduly limiting sentencing discretion. Victoria has traditionally been a proponent of this high individualism. The landmark nature of the Court of Appeal's recent decision to issue the state's first guideline judgment in Boulton v The Queen becomes apparent when viewed in this context. Though it suffers from the limitations of being forced to operate in a predominately individualist sentencing framework, Boulton hopefully signals the beginning of a more nuanced jurisprudence that recognises that fair sentencing outcomes are not just a question of the amount of discretion, they are also the product of practical appellate regulation of the decision-making process aimed at promoting sentences that are both individualised and equal between similar offenders.