Ian Caplin: Making sense of sentencing

As the New Zealand government contemplates the creation of a council to guide judges on sentencing (or at any rate, has asked the Law Commission to look into it), would New Zealand benefit from such a council? Would it be too political or could sentencing become more coherent as a result?

It is worth looking at the English experience. England has a Sentencing Guidelines Council. As is the case in New Zealand now, it used to be the Court of Appeal in England that formulated guidelines for judges on sentencing. But now, it is the council which receives advice from a panel on a particular sentencing topic and uses this advice to formulate sentencing guidelines on the subject.

The guidelines are published, consulted on and then revised. The panel advises on sentencing guidelines for particular offences or categories of offences, and other sentencing issues.

If the main concern about a council in New Zealand is that non-judges may have an input into the sentencing guidelines that should be left for the judges and the judges alone to write, there are advantages to having such a body placed between the courts, the public and the government.

If the formulation of sentencing policy is more open (the council issues public consultations on the scope of proposed sentencing reform after the advisory panel has made recommendations to it), so much the better.

Judges could flush out any political pollutants (if there were any) in the guidelines by exercising discretion in applying the guidelines to the different facts of each case.

In England, the council's task of giving sentencing guidelines has developed piecemeal. Guidelines in some major areas, such as sexual offences, are being revised and there is a public consultation as to how the council should reform sentencing guidelines in this area.

This is a huge undertaking and arguably one that is almost better served by being done on a piecemeal basis.

Before the council took on the role, the English Court of Appeal had consciously developed itself as a court that gave sentencing guidelines. But with appeal courts there is always the risk of uncertainty - and lack of clarity and consistency in how much, if at all, court decision alone is an applicable guideline for future cases. This may have some resonance with the present function of the New Zealand Court of Appeal as guideline maker.

Separating the function of making sentences consistent and placing that function into a specialist public body comprised of senior criminal judges (the council is chaired by the Lord Chief Justice, Lord Phillips), aims to make matters clearer.

Having a sentencing guidelines council will never stop unwholesome attacks by politicians claiming (usually wrongly) that judges are being soft on crime. Good manners and constitutional restraint prevents the judges from hitting back too heavily. But it is perhaps a coincidental benefit that the rows in England on such issues serve as a good example of how useful the council can be.

This is because the council sits, in effect, between the courts, the government, the public - and indeed the media - the latter three being sometimes harsh, if not unfair critics of judges who are doing no more than applying legislation, often given to them by the government of the day.

Under English sentencing practice, defendants get up to a near-automatic one-third discount to their sentence if they plead guilty at the first available opportunity. The discount encourages guilty defendants to plead guilty early, to save court time and costs, and to avoid the harrowing experience of victims and other witnesses having to give evidence.

The council is conducting a public consultation on how this practice could be reformed, especially in cases where, if the case against the defendant is simply overwhelming, a one-third discount appears unjust.

The English press has been awash with stories such as a recent harrowing baby rape case referred by the Attorney General to the Court of Appeal. While the appeal judges increased the minimum term that the defendant, while serving a life sentence, should spend behind bars before being able to even ask for parole, they ruled that he could still have the benefit of the one-third discount in calculating the earliest time that opportunity would arise.

That particular defendant may never be given parole, but the issue is still sensitive and the council is uniquely placed to perform a public service by issuing this consultation. This is surely one of the hallmarks that justifies its existence.

There is no doubt that the council has a unique public role to play. Its main job is make sentencing consistent.

But it is also very usefully placed to diffuse political tensions over sentencing (however misconceived) by formulating a coherent sentencing policy and consulting publicly and transparently on its work.

That in itself might be the argument for the creation of a Sentencing Guidelines Council in New Zealand.

* Ian Caplin is a legal affairs commentator for British television.