There is concern among lawyers about sentencing consistency, and the NSW Law Reform Commission is reviewing how the Sentencing Procedure Act could be amended to make the practice more transparent and predictable. To reduce the number of mistakes by judges inexperienced in the area, the Public Defenders Office is agitating to have judges with a background in criminal law sitting on criminal trials, provided there is enough flexibility to enable appointments of judges who had non-criminal practices before their appointment to continue, and for some judges to sit in more than one Division. Its submission to the commission proposed a specialised criminal jurisdiction. ''It is likely that there would be a higher degree of consistency in the sentences handed down by different judges within a specialised criminal jurisdiction,'' the submission said. ''There would be fewer unjustifiable sentences that fell outside the accepted range, thereby reducing the volume of sentencing appeals.'' A District Court judge who declined to be named said sentencing laws had been complicated by the government trying to legislate for every contingency, and some judges were confused about what was required of them.

''Once a judge has a reputation for being notoriously tough, it is much more likely that there will be an appeal,'' the judge said. ''I'm more concerned about those judges who are imposing very, very lenient sentences and are being appealed against. There have been a lot of instances where that sentence hasn't been disturbed because of double jeopardy.'' This occurred last year when the NSW Court of Criminal Appeal agreed with the Crown that the non-custodial sentences imposed on Samuel Pogson and Murray Lapham for financial crimes were manifestly inadequate, but still dismissed the appeal because they had already been punished. ''If we were sentencing at first instance, we would have imposed a term of full-time custody,'' the court said. One senior defence barrister characterised some judges whose decisions were frequently appealed as unlucky, poorly versed in criminal law, habitually predisposed to either the prosecution or the defence, or inexplicably rogue.

''Some judges are constantly appealed and they don't have a pattern and they can be categorised as rogue. And an example of that is Judge Finnane,'' he said. Many judges were renowned for being particularly lenient or severe, the barrister said. Unfortunately for lawyers - though not for the administration of justice - it was difficult to ''judge shop'' in the District Court because judges were not allocated until the morning of the trial. A spokeswoman for the NSW Supreme Court said the analysis was flawed because it did not take into account the total number of cases presided over by any one judge. A judge who oversaw more trials was open to more appeals.

None of the judges, nor the NSW Chief Justice, Tom Bathurst, would comment, she said. There are 66 District Court judges. Clarification: The original version of this story said the Public Defenders Office is agitating to have only judges with a background in criminal law sitting on criminal trials.