Finlayson Christopher: Criminal Justice Reform Bill — First Reading 
Finlayson Christopher: Criminal Justice Reform Bill — First Reading 
[Volume:636;Page:6874] 
CHRISTOPHER FINLAYSON (National) 
: 
 I am disappointed the member chose to give a waffly generalised speech rather than a first reading speech that addressed the very real concerns that National has about this legislation and particularly Part 1. I am going to concentrate on Part 1 and elaborate on some of the concerns that Mr Power has expressed. 
Sentencing councils as the Minister said have been established in a number of jurisdictions over the years. The Minister mentioned Victoria and England and Wales. They have also been established in Scotland New South Wales and a number of American states. In its report  
Sentencing Guidelines and Parole Reform 
 the Law Commission has recommended the establishment of a Sentencing Council and the Government has agreed that such a council should be established in New Zealand hence this legislation the Criminal Justice Reform Bill. Although I respect the work of the Law Commission and think it has done some great work this year I believe that on this occasion what it has proposed will not work and is constitutionally unacceptable as it will undermine the independence of the judiciary. 
My first concern is that this bill establishes a non-elected body to oversee a very significant aspect of the criminal justice system that has always been the province of the judiciary. The constitution of this body is unacceptable and I refer members to clause 11 which provides for the appointment of one judge from the Court of Appeal one judge from the High Court two judges from the District Court the chairperson of the Parole Board and five members who are not judges. These lay persons will be appointed by the Governor-General on the recommendation of this House. One of the lay persons is to be the chairperson and one of the judges will be the deputy. 
Who will be the lay people who are appointed to this council? The Minister said the system works in Victoria. I strongly suggest that he speaks to the Victorian Attorney-General Mr Hulls on the problems he had in 2004 when he announced appointments to that state’s independent Sentencing Advisory Council. It was his bid to placate an angry public over apparently lenient sentencing laws that were said to fall short of what was needed. Mr Hulls announced that the new members would include victims of crime police youth women people with disabilities the mentally ill indigenous peoples and the legal sector. The Crime Victims Support Association was so angered by what it called a lack of victims on the list that its members held a protest at the Victorian Parliament to express their views. Their president said that no new member of the council would qualify for the status of a victim and it did not seem right to have an independent committee of this sort that did not have a victims’ representative. 
I have no doubt at all that similar issues will arise in New Zealand if a Sentencing Council comes into existence. For example the Sensible Sentencing Trust people will be asking for a representative on the council as will numerous victims’ rights organisations and the sorts of groups who are appointed by the Victorian Attorney-General. I also think it is unsatisfactory for the chairperson to be a lay person. 
The proposed body is to prepare public guidelines which will be published as set out in clause 14. It may then consult on those guidelines “with any person or body by any appropriate means.” There are numerous consultation regimes in statutes these days. There has been an explosion in consultation procedures since the 1980s and they are now an established part of the business of government. The consultation requirements inserted for example into the Local Government Act in 2002 have been a disaster creating an avalanche of paperwork that entombs local authorities and their staff. I believe there will be similar problems with consultation by any Sentencing Council—it will end up consulting those who make the loudest noise. I cannot see how consultation of the kind proposed is going to result in rational decision-making. 
Then there is the opportunity for parliamentary scrutiny of these guidelines. I think that will just give some politicians an opportunity to grandstand. Politicians rarely notice the judiciary except when it is convenient to criticise a judge for a decision that he or she may have made. This is nowhere more apparent than in the criminal law area. Once the guidelines are tabled in Parliament one can expect that certain MPs will jump at the opportunity to say that the guidelines are too soft the guidelines are too hard or whatever. 
In this extremely sensitive area of the criminal law this Government is proposing to establish a council half of whose members are to be politically appointed. This Government has an unfortunate record of appointing cronies to various bodies and one can expect that this sort of cronyism is going to continue if this council is established. It is objectionable in principle particularly as it seeks to usurp a significant aspect of the criminal justice system that is properly the responsibility of the judiciary. 
My second objection to this legislation is that the Sentencing Council is not needed. The Sentencing Act 2002 was comprehensive legislation that provided guidance to judges on the factors they ought to consider when sentencing. What was established was both flexible and permitted the exercise of judicial discretion in individual cases. Lower court judges also receive guidance from the Court of Appeal which on a regular basis gives judgments in areas of the criminal law that are often referred to as guideline judgments. More than that following the passage of that legislation we now have the abolition of the right to appeal to the Privy Council and the creation of a Supreme Court which will mean that many more criminal cases will be taken on appeal to the Supreme Court and that is happening now. The Supreme Court will thus have a major role to play in the development of guidelines for sentencing. 
So what has been evolving in this country is a system that permits sentencing judges to have a degree of discretion but allows the superior courts to provide guidance from time to time. I cannot see how the publication of rigid guidelines developed by this kind of body will improve the present situation. It has to be emphasised that judicial discretion in determining a sentence is central to dealing with offenders in a criminal justice system. The legislation will set out the maximum penalty for a defence then it is over to the judge who sentences the offender to determine the sentence that is most suited to the seriousness of the offence and to the individual circumstances of the offender. It is well established that discretion is a useful tool to mitigate the rigidity and the inflexibility of legal rules and it enables judicial officers to particularise their responses to particular circumstances. 
A sentencing judge has to take into account a wide variety of matters that concern the seriousness of the offence for which the offender stands to be sentenced and the personal circumstances of the offender. From all those elements the sentencing judge distils an answer that reflects human behaviour in the time or monetary unit of punishment. Yet this proposal will undermine judicial discretion. What really concerns me about Part 1 is the way sentencing guidelines will affect the independence of the courts. This committee will be more important in the sentencing process than the Supreme Court and that is wrong. 
My final point arising out of what the Minister said about his discussions with members of the Sentencing Council in England is that guidelines have not really worked in England and a recent case illustrates this point. These guidelines have resulted in increased concern or bewilderment on the part of the public at the sentencing process and a diminution of public confidence. I refer to the example of a person called Craig Sweeney in England who abducted and sexually abused a girl aged 3. He was sentenced to life with the judge giving him a lengthy sentence but will be eligible to be considered for parole in 5 years. Judges in England used to follow guidelines produced by the Court of Appeal but this was changed by the Criminal Justice Act 2003. 
The Sentencing Guidelines Council produced recommendations to encourage consistency in sentencing and one of those guidelines meant that Sweeney’s sentence was reduced by one-third because of an early confession of guilt despite his being caught red-handed. The Attorney-General Lord Goldsmith has decided not to challenge the sentence because he has concluded that it is not unduly lenient. The mother of the abused child said she was gut-wrenchingly sick at the decision and as Lord Falconer said about this case confidence in the judiciary had been undermined and judges should not be whipping boys for a flawed system. He said there needs to be a very urgent look at the automatic discounts given on jail terms as a reward for guilty pleas. 
There is a real problem in England there is a problem with the sentencing guidelines it is very much the subject of public discussion and debate and the short point is that the sentencing guidelines in England are not working. The case I have described was entirely the result of the Government’s own Criminal Justice Act and the sentencing guidelines. The judge followed them to the letter and the result was an almighty mess. So Part 1 raises some very serious questions that were not touched on at all by the previous speaker and they will need to be addressed by the select committee.