In 2002, Parliament told judges how to go about it. The Sentencing Act runs to 138 pages. Among other things, the Act requires sentencing judges to take into account 36 different considerations — including such matters as the gravity of the offending, the maximum penalty for the particular offence, whether the offence involved violence, the age of the offender, whether the offender pleaded guilty, and the offender’s whānau and cultural background.
It is a very long list to work through. The list comes from Parliament, not from judges.
No one would expect the public to carry around the finer points of sentencing in their heads.
Sometimes, however, a lack of understanding comes from the most surprising of people.
Take the August 18 radio interview between the former Minister of Police, Stuart Nash, and Mike Hosking.
In the interview, Nash had two complaints about the sentencing process. One was the “lack of transparency”. The other was that sentencing judges “aren’t held to account”.
In his view: “What we hear is the facts of the case and the sentence given, and we have nothing of the narrative. Wouldn’t it be refreshing if one of the judges came on your show and said ‘this is the decision process I went through when I gave that sentence’?”
Hosking’s enthusiasm knew no bounds.
The first complaint was the “lack of transparency”.
Neither participant in the interview seemed to be aware that judges do publicly go through their reasoning when the sentence is imposed. The reasons are given in open court.
The media can, and frequently do, report the reasoning except in the rare case that something has to be suppressed.
The reasons are recorded in a formal document which is available for analysis on appeal.
Except in the most trifling of cases, the reasons are lengthy because they need to show that regard has been paid to all the considerations required by Parliament. One assumes that in the case under discussion, the reasons had been available to the minister and to the media.
The second complaint was that sentencing judges “aren’t held to account”.
Sentencing judges are held to account. Either party can appeal to higher courts. The Solicitor-General can also appeal if she believes the sentence to be manifestly inadequate and that an appeal would be in the interests of the public.
If the judge got it wrong, that is pointed out by the appellate court in a publicly available decision.
One wonders what other form of “holding to account” Nash had in mind.
In autocracies, judges are sacked if political leaders do not agree with their decisions. Less drastically, in some American states judges are required to submit to regular elections.
In North Carolina, a state supreme court justice was attacked as “sid(ing) with child predators”. In Illinois, plaintiffs’ lawyers spent millions in an effort to unseat a justice due to hear their appeal of a multibillion-dollar verdict. In Ohio, a justice on the campaign trail described the state’s supreme court as a “backstop” for the state’s Republican governor and legislature.
The American Bar Association and the American Judicature Society oppose the partisan election of state judges. They are concerned about the loss of traditional respect it produces.
The last thing we need in New Zealand is for judges to be “held to account” in a similar way.
■ Robert Fisher is a former High Court Judge.
