Finlayson Christopher: Criminal Justice Reform Bill — In Committee 
Finlayson Christopher: Criminal Justice Reform Bill — In Committee 
[Volume:640;Page:10531] 
CHRISTOPHER FINLAYSON (National) 
: 
 I take a call to address clause 40 because it raises an important matter about sentencing practice. As currently drafted the proposed new section 21A to be inserted by clause 40 provides: “When sentencing an offender a court must impose a sentence that is consistent with any sentencing guidelines that are relevant …”. Yet I believe that that approach as expressed in the bill is unreal and does not reflect the reality of the sentencing exercise undertaken by the judge. 
It is a fundamental principle of sentencing practice that judicial discretion is central when one is dealing with an offender. It is not simply a question of applying Sir Geoffrey’s guidelines rigidly and like an automaton but rather of taking the guidelines as a starting point looking at the facts of the case looking at the seriousness of the offence looking at the age of the offender and looking at other such factors when determining whether a sentence is going to be of a particular level. This point was very well expressed by the High Court of Australia not so long ago when it said: “A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and the circumstances of the offender. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment.” 
 That is the reality of the sentencing exercise and as expressed the proposed new section 21A does not recognise that reality. As I said it expects judges who are now hijacked into the executive by this odious Sentencing Council to apply Sir Geoffrey Palmer’s sentencing guidelines rigidly without giving them very much thought at all. Members should note the words “a court must impose a sentence” and as one can see from clause 35 which inserts new section 6A into the Sentencing Act the guideline is to apply to the sentencing of an offender in the District Court the High Court the Court of Appeal or the Supreme Court and—it is interesting to note—“on … the date on which the guideline comes into force whether or not the guideline was in force when the offence was committed.” which in itself is constitutionally improper. 
I come back to my proposal for amending new section 21A because what I have tried to do in my Supplementary Order Paper 126 is to recognise the reality of the sentencing exercise that is undertaken by the judge in whatever court he or she sits. It states simply: “When sentencing an offender a court must have regard to any sentencing guidelines …” because that reflects the reality of sentencing practice and that is what lawyers and judges are dealing with day by day in the courts. It is something that academics and the people in the Law Commission may not necessarily have to deal with which is probably why they seek to impose this Stalinist requirement that the “court must impose” a sentencing guideline. 
So that is what the Supplementary Order Paper is about. I hope that sensible practical people in this Committee like Mr Mark will reflect upon it because it does not seek to apply these guidelines rigidly but has a requirement that judges must have regard to them which is a much more meaningful and sensible way of dealing with the guidelines. It reflects the reality of the sentencing exercise. 
When I was in England a few months ago I went down to the Sentencing Guidelines Council and saw the kinds of guidelines that had been prepared in England. It was interesting that the council had guidelines to reflect seriousness guidelines to reflect age and guidelines to reflect the particular crime that had been committed. A judge when dealing with a sentencing exercise sometimes has to take into account two or three guidelines. If that is to be the case in New Zealand then one cannot impose a sentence consistent with any sentencing guidelines. What one has to do as a matter of reality is to take the various guidelines reflect on them then exercise one’s judgment and exercise a discretion in reaching a sentencing figure or sentencing a time of imprisonment that reflects the particular circumstances of the case.