What is the test for proportionality when assessing the severity of a criminal offence?

59. There is a further aspect of proportionality which has been considered on occasion by the American courts: a comparison with punishments imposed for other crimes in the same jurisdiction (Solem v. Helm, 463 U.S. 277 (1983), at p. 291). Of course, the simple fact that penalties for similar offences are divergent does not necessarily mean that the greater penalty is grossly disproportionate and thus cruel and unusual. At most, the divergence in penalties is an indication that the greater penalty may be excessive, but it will remain necessary to assess the penalty in accordance with the factors discussed above. The notion that there must be a gradation of punishments according to the malignity of offences may be considered to be a principle of fundamental justice under s. 7, but, given my decision under s. 12, I do not find it necessary to deal with that issue here.