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The dispute between McLachlin and Moldaver is typical of debates over MMS: one side demands stiffer, more certain sentences for offenders who threaten public safety and the other sees them as “blunt instruments that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range.” There is, however, an alternative to these “blunt instruments” that might satisfy both the legitimate desire for reducing excessive judicial discretion and the need to allow for individualized tailoring of a sentence to arrive at a just result: sentencing guidelines.

Instead of simply giving an upper and lower cap for any given offence, sentencing guidelines offer the opportunity to structure judicial discretion by providing more specific sentencing ranges based on a variety of stated criteria. This system has been adopted in the U.S., where “sentencing grids” are used in federal law and in a number of states. The main axes of the grids are the seriousness of the offence and the criminal history of the offender.

England, by way of contrast, has eschewed sentencing grids and instead has created a series of steps for courts to follow in arriving at a sentence. The guidelines first require the court to establish the category of offence and then ascertain the recommended sentence range and starting point for that category. For example, a Category 1 domestic burglary with greater harm and higher culpability would have a sentencing range of two to six years in custody (and a starting point of three years in custody). The guidelines provide various factors that judges should consider when fine-tuning the sentence within the range, including the history of the offender. Other steps include considering reduced penalties for guilty pleas (with a suggested formula). Judges are expected to follow the guidelines unless doing so is not justified by the “interests of justice.”