Graeme Brown, Criminal sentencing as practical wisdom
| Published date | 01 June 2019 |
| DOI | 10.1177/0004865818766796 |
| Date | 01 June 2019 |
| Author | Lorana Bartels |
| Subject Matter | Book Reviews |
Book Review
Graeme Brown, Criminal sentencing as practical wisdom. Hart Publishing: Oxford, 2017; 281 ppþxiii.
ISBN 9781509902613 £86.40 (hbk)
Reviewed by: Lorana Bartels, University of Canberra,Australia
This book is based on Brown’s PhD thesis, for which he interviewed 25 judges in
Scotland about the sentencing process. It is divided into an introduction and seven
chapters that provide a well-written and comprehensive insight into sentencing
in Scotland.
The book commences with an overview of previous research on judicial sentencing
decision-making in England and Wales, Scotland, Canada, and Australia, as well as
examples of judicial officers declining to be involved in such research. Brown sets out the
methodology for his research in Chapter Two, including issues in relation to gaining
access. I could particularly relate to this section, as I also interviewed judicial officers for
my PhD, speaking with 16 of the then 18 judicial officers in Tasmania about their views
on suspended sentences.
The sentencing methodologies adopted in Canada and Australia are detailed in
Chapter Three. These countries were selected because, like Scotland, they retain a
high degree of discretion for judicial officers, with an emphasis on individualised justice.
However, the section on Australia would have been enhanced by recognition that sen-
tencing here is not homogenous, as there are nine different sentencing frameworks in
place across six states and two territories, as well as separate legislation for federal
offences. They are all guided by Markarian v The Queen (2005) 228 CLR 357, in
which the High Court of Australia reaffirmed its commitment to instinctive (or intuitive)
synthesis, as opposed to a ‘two-stage’ approach. In spite of this, legislatures across
Australia have encroached on this principle to varying degrees in recent years, for
example, by setting mandatory minimum sentences (a development that Brown critiques
generally in Chapter Four).
In Chapter Four, Brown sets out the case for instinctive synthesis in sentencing and
rebuts the assertion that this approach is contrary to the rule of law. This chapter
is supplemented by quotes from his interviewees on issues ranging from knife crime
to mercy in sentencing. Here, he also asserts that a sentencer is a phronimos, or person of
practical wisdom, and, as such, has – or should have – the experience to discern what is
morally relevant about a particular situation. Brown would doubtless reject Stobbs,
Hunter, and Bagaric’s (2017) recent assertion that sentencing law and practice is on
Australian & New Zealand Journal of
Criminology
2019, Vol. 52(2) 308–310
!The Author(s) 2018
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