Finlayson Christopher: Criminal Justice Reform Bill — In Committee 
Finlayson Christopher: Criminal Justice Reform Bill — In Committee 
[Volume:640;Page:10577] 
CHRISTOPHER FINLAYSON (National) 
: 
 I really enjoyed the spectacle that occurred about half an hour ago when after devastating contributions by Charles Chauvel and Lynne Pillay the Minister Mark Burton changed his mind from opposition to support. I was kind of hoping that those two members would reappear in the Chamber to make devastating speeches in favour of the Sentencing Council because I was holding my breath in the hope that the Minister would then stand up and say: “Well actually I oppose it.” 
The Sentencing Council is a vile creature. Parliament has given birth to a body that the public and the judges will react very strongly against. It is unconstitutional. It seeks to press-gang judges into the executive for wholly illegitimate purposes. Time and time again during the Part 1 debate I came back to clauses 9 and 10 and asked honourable members to focus on what exactly was being proposed. Really what was being created was a body that for example would facilitate the provision of information to enable penal resources to be effectively managed. When one looks at the functions of the council one sees that it is a body that is being created essentially to control the prison population or prison muster. So judges as part of this creature are required to provide information on the likely effect of the guidelines on the prison muster. 
That is not the function of the judiciary and I am deeply sorry that this Parliament has created such an unconstitutional creature. I believe that what has happened here is for the first time in the history of this Parliament the melding of the executive and the judiciary. I believe that this Parliament will have cause to regret that. It is a major constitutional outrage and I am very disappointed that good lawyers and members of Parliament like Mr Fairbrother did not stand up and oppose it. Mr Fairbrother was remarkably quiet during the debate because as a criminal lawyer he knows exactly what the function of the judge is in a criminal trial. He knows that a judge is not expected to be a mere automaton and simply apply sentencing guidelines but that the judge has a very complex task to perform— 
Russell Fairbrother 
: They would take part. 
CHRISTOPHER FINLAYSON 
: Well I would take Mr Fairbrother back to one of the many trials he has participated in as counsel for the defence. He knows that when the sentencing part of the trial takes place the judge is required to undertake a delicate balancing act in looking at the particular circumstances—looking for example at the seriousness of the offence and looking at whether the defendant has pleaded guilty thus obviating the necessity for a long trial. All those sorts of things are brought into the mix and then the judge makes a sentencing decision. Can that member honestly and sincerely stand up and tell this Committee that with the new Sentencing Council and with judges being press-ganged into obeying guidelines—as though they are organising timetables for German trains—we will see justice? 
Russell Fairbrother 
: Yes. 
CHRISTOPHER FINLAYSON 
: And can the member honestly say when focusing on new section 21A inserted by clause 40—these are rhetorical questions for which he is answering yes because I suppose he has to—that justice will be served when a judge is told that he or she “must adhere” to particular guidelines rather than take them into account or have regard for them? 
The whole situation is most unsatisfactory and what I find so disappointing about the Labour Party—and I have said it before in this place—is that 20 years ago we had in that party plenty of lawyers who would have stood up— 
Dr Wayne Mapp 
: Robust! 
CHRISTOPHER FINLAYSON 
: —in a very robust way as Dr Mapp says and complained most vehemently about this constitutional outrage. Sir Geoffrey Palmer would have been purple with rage and there would have been Frank O’Flynn—the well-known Wellington QC—Richard Prebble David Caygill—any number of them. But the apparatchiks on the other side have lost all sensitivity for constitutional matters. The end really does justify the means and if the executive and the judiciary are illegitimately melded that is just too bad. This is totally unsatisfactory.