Fairbrother Russell: Judicature Amendment Bill (No 3) — In Committee 
Fairbrother Russell: Judicature Amendment Bill (No 3) — In Committee 
[Volume:630;Page:2247] 
RUSSELL FAIRBROTHER (Labour) 
: 
 I rise in support of the Judicature Amendment Bill (No 3). I have been listening to some of the previous speeches to the debate about whether we need more judges and to Hone Harawira’s concern about telephone conferences and the whole process. And I heard the previous speaker once again rattle off the numbers of cases in the Court of Appeal. The argument those speakers advance is quite endless. 
The lawyers on the other side of the Chamber are refusing to acknowledge that the hysteria for increased sentences has led to the Court of Appeal becoming quite reactionary so that the concept of merciful sentencing in criminal courts which was a valid concept in the early 1970s has been removed by the minimum sentencing levels increasingly imposed by the Court of Appeal in response to public clamour based on the false assumption that longer sentences will reduce crime. Of course those who think about the issue for longer than a morning tea break realise that longer sentences increase crime rather than decrease it because people are not idle while they are in prison. They train themselves with their colleagues and friends and they build a new circle of friends. They divorce themselves from their families and they divorce themselves from the supportive institutions in society that have not worked well for them but that work even more badly for them after they have spent a period of time in incarceration. The real cause of that is not something that we in this Parliament can really fix with an amendment to the bill. We can only tag along behind what really is a Court of Appeal that has been running along on a track of populism rather than following the principles set down by this Government in various pieces of legislation. 
There is ample legislation such as the Sentencing Act and the Parole Act that makes it quite clear that in cases of serious offending serious sentences should be imposed. However in the majority of cases there is an opportunity for mercy in the court of first instance but no longer is that a valid argument on appeal. So whenever a judge whether it be in the District Court or High Court exercises his or her previously inherent prerogative of mercy Crown prosecutors in response to that clamour for heavier sentences are bound to take the matter on appeal. In the early 1980s therefore the Court of Appeal started—unwisely some would argue—to impose minimum sentences for a range of offences. It then got itself in the bind of having to move away from the experience of judges of first instance—judges who are first instance judges because of their experience of humans of people giving evidence and of dealing with the everyday problems that come before them—and move to the more refined atmosphere of the Court of Appeal. 
Of course a Court of Appeal judge is a more academic judge and a more banco judge than a trial judge in many instances. In fact some Court of Appeal judges are very good Court of Appeal judges but they have no advocacy background whatsoever. That is a natural consequence of having an appellate court. But until we recognise that our courts have a responsibility to reflect the legislation that this Parliament passes we will continue to pass legislation such as the Judicature Amendment Bill (No 3) that increases incrementally the number of judges in the Court of Appeal. 
The real truth is that we have to ask ourselves what we want from our justice system and we have to ask ourselves whether we trust the judges of first instance—we pay them enough for them to be trusted—and trust their judgment including the prerogative of mercy so that when a case goes up to the Court of Appeal from either the High Court or the District Court there is not a reaction of bringing out a law book to say for instance that in 1986 we set the minimum sentence for that type of offending at X number of years. 
 We get a ludicrous situation when we talk about rape. In the 1970s the average penalty for a rape offence was 3 years. It then went to 5 years and it is now about 8 years. But of course as soon as a judge of the first instance says that the starting point is 8 years the Court of Appeal jumps in and says there is no starting point but the average is seen to be about 8 years. So we cannot adopt an artificial starting point because the maximum is 20 years and we work down from there. 
We go through those strange mind games because the public of New Zealand—led by the reactionary right-wing parties sometimes reflected in this Parliament with their neo-Christian attitudes—has demanded that the courts impose sentences to quell some of the self-righteous and indignant protest in the street which is led by ignorance not knowledge. So it is a sad day when our appellate courts have had to set artificial levels of sentencing that have had the result of increasing the courts’ own workload. If we could move back to look at the laws that were passed by this Labour Government since 2000 under the former Minister of Justice Phil Goff—and I am sure some equally good ones will follow under the current Minister Mark Burton—we would see that the opportunity is there to reduce the number of judges. We do not need the other complaints.