Canterbury Law Review
A SENTENCING COUNCIL: ENLIGHTENED OR FOLLY?
JUSTICE GRAHAM PANCKHURST*
The flyer which advertised tonight's lecture referred to the 'close association' between myself and Neil Williamson. That, of course, is entirely true. We met in 1971. He was a young Crown Solicitor. I was a very recently admitted practitioner. I was endeavouring to defend a charge of robbery. It was my first exposure to a jury trial. Neil, I remember, did not give a closing address. I did. But so did Macarthur J. I lost. It was not a glorious beginning.
However, some months later Neil phoned me. It was a call out of the blue so far as I was concerned. He offered me a job. After a little hesitation I accepted. This represented the beginning of a wonderful association. It lasted the next 25 years. We became partners, appeared together in a number of interesting cases and, most of all, became close friends. This was not just a professional friendship. It was a family friendship as well. It extended equally to our wives Maree and Jill and even to our children.
Sir Michael Hardie Boys when delivering this lecture in 2002 said of Neil as an advocate that he was 'firm, fair, with an impressive simplicity about his presentation'. Michael, as usual, was right. This description captures the essence of Neil, both as an advocate and equally as a judge. He wrote with the same impressive simplicity. Simplicity, in this context, is a blessing. It indicates a true understanding and command of the subject-matter. Indeed, I wish we saw more of it.
Unbeknown to me at the time of Neil's untimely death in February 1996 our association was about to enter a new phase. It was the very day of Neil's funeral that I received another telephone call which was completely out of the blue. It was a call from the Attorney-General. He too had a job offer. I was invited to take the spot left by the retirement of Justice Colin Fraser.
Regrettably, of course, this was too late — an association as judges was just denied us. But the connections continue. I sit in the same chambers as Neil occupied. His associate, Trish Morrison, became my associate. I have even inherited one of his old cases, which will occupy my attention in the next several months.
Ladies and Gentlemen, it is a particular honour and a true privilege to speak in memory of Neil. He was a fine man and a fine friend.
When asked to give this lecture I was told that the topic remained my choice, but that it might be appropriate to speak about the establishment of a Sentencing Council in New Zealand. I have, of course, adopted that suggestion.
In speaking about the Sentencing Council initiative it is only appropriate that I declare my hand at the outset. In November 2006 I travelled to London with Professor Warren Young (Deputy President of the Law Commission) and Judge Geoff Rea (a District Court Judge in Napier). Our brief was to examine the functioning of the English Sentencing Council with a view to advising in relation to the then New Zealand proposal to establish a similar body. We observed the English Council, and its adjunct, the Sentencing Advisory Panel, in operation. We also spoke to a number of people, including Lord Wolfe (the first Chair of the Council), the Lord Chief Justice, Lord Phillips (the then Chair), the Lord Chancellor, the Director of Public Prosecutions, and others, too numerous to mention.
Subsequently, following adoption of the Sentencing Council proposal, I became a member of the Sentencing Establishment Unit which, operating under the auspices of the Law Commission, was given the role of developing a set of inaugural guidelines. A segment of my judicial diet over the past 18 months has comprised work on the Establishment Unit. A set of draft inaugural guidelines now exists. These will be provided to the Council when, and if, it meets so that it does not commence a very formidable task from scratch. What happens to them after that is anybody's guess.
Finally, I am to be the High Court representative on the Council. Whether all of this means that I suffer from 'capture' is not for me to judge. I should like to think that I remain reasonably objective, but some may think otherwise. At least I have disclosed that I am sitting on a full hand.
Before I turn to examine aspects of the sentencing guidelines initiative in New Zealand, I think a little historical perspective is worthwhile. I shall do so by reference to the English experience. Our own is comparatively short-lived. The European settlement of New Zealand saw the introduction of an English approach to crime and punishment. Reference to England's history in this area is therefore appropriate and provides a broader perspective.
Today, serious crimes are met with sentences of imprisonment. It is the ultimate sanction. But this is a development of comparatively recent origin. Until about the late 18th century imprisonment was not a form of punishment, as such. It was used to detain prisoners awaiting trial. And, imprisonment was imposed for non-payment of debts.
Instead, death was the punishment for felonies and various forms of corporal punishment were inflicted for misdemeanours. At the bottom of the sentencing hierarchy was the use of the stocks. The offender sat on a bench with his legs locked into the stocks so that he could not move. Next was the pillory which required the offender to stand, with his neck and arms clamped, or sometimes with his ears nailed to the pillory. The object was to expose the offender to public ridicule. Members of the public were free to pelt the miscreant with vegetables or even stones. Sometimes, death resulted.
Where a more severe punishment was considered to be necessary, for example for petty theft, whipping was the likely sanction. The offender was stripped to the waist, tied to the back of a cart, which would be pulled along the street where the offence had taken place, while the prisoner was flogged 'until his back be bloody'. I say 'his', but women were not spared this ordeal. In terms of the Whipping Act 1530 vagabonds, the mothers of illegitimate children, peddlers, beggars, drunkards, sex offenders and even lunatics could be sentenced to be whipped.1
Flogging was one step up in the sentencing hierarchy. A 'cat-o-nine tails' was employed, each whipcord being of defined thickness and length. The cat had to be changed regularly to prevent blood from the tails being flicked over the spectators. In 1817 the number of strokes was limited to 300 and in 1862 public flogging was outlawed. But flogging itself remained in the English sentencing repertoire until 1948, and indeed in this country it was used until 1941. So much for misdemeanours.
Felonies were met with the death penalty. If the prisoner was a commoner, he was hanged. Noblemen, however, were entitled to the privilege of decapitation. Both were carried out in public, since this was seen as important in order to deter others from a criminal path. Important executions were sometimes treated as the occasion for a public holiday. Crowds of many thousands gathered to watch. For example, in the reign of Henry VIII (1509-47) there were the order of 70,000 executions. As late as 1800 more than 200 offences carried the death penalty. Even the offence of theft could be met with a capital response, if the value of the item stolen was above a prescribed level. Juries frequently responded by bringing in perverse findings as to the value of stolen goods so as to spare a prisoner from the death penalty.
From time to time isolated and brave voices were heard in opposition to the severity of punishments. Towards the end of the 18th century change was advocated. John Howard, a High Sheriff of the County of Bedfordshire, published a study in 1777 entitled 'The State of the Prisons in England and Wales'. He urged reform and moderation. The Howard League for Penal Reform is named after him. Then, in 1810 a former Solicitor-General, Samuel Romilly, introduced a Bill to Parliament designed to limit the offences which attracted the death penalty. The judiciary was outraged. The Lord Chief Justice, Lord Ellenborough, said this:
I trust Your Lordships will pause before you assent to an experiment pregnant with danger to the security of property and before you repeal a statute which has so long been held necessary for public security. I am convinced with the rest of the Judges that public expediency requires there should be no remission of the terror denounced against this description of offenders ... Repeal this law and see the contrast — no man can trust himself for an hour out of doors without the most alarming apprehension that, on his return, every vestige of his property will be swept off by the hardenedrobber.
Sentiments of this kind continued to prevail for some time. However, under Robert Peel as Home Secretary, reform eventuated. By 1861 capital offences had been reduced to four (murder, treason, arson in royal dockyards and piracy with violence).
Following the turn of the century European countries led the way in the abolition of the death penalty. Norway was first in 1905, followed by Sweden in 1921, Denmark in 1930, Switzerland in 1942 and so on.
Statistics demonstrated that abolition of the ultimate sanction was not 'pregnant with danger'. Offending in relation to what were previously capital offences did not increase. Yet, abolition of the death penalty in England remained an elusive attraction. In 1948 the Lord Chief Justice, Lord Goddard, threatened to resign if capital punishment was abolished. Even Lord Denning argued that some crimes 'demand the most emphatic denunciation of all: namely the death penalty'. But, finally in 1965 capital punishment was abolished.
In New Zealand this milestone was achieved in 1941. But in 1950 the death penalty was restored, until final abolition occurred in 1961.
I have included this, I acknowledge, slight historical excursion not out of a desire to add colour, but for the lessons which I think it contains. I trust that right-thinking members of society today would regard most, if not all, of the punishments which I have described, as barbaric. To sentence children as young as seven years of age to be hanged is totally indefensible. Yet this occurred in 1807 in England, and death sentences continued to be passed on children until the 1830s. Punishment was dominated by a thirst for retribution, with deterrence raised as the rationale which rendered the severest sentences necessary. Capital punishment deterred the offender as a matter of certainty; but whether it achieved anything, and if so how much, in relation to the deterrence of others remains debatable. Yet, an appetite for the death penalty existed in England and in this country until comparatively recently.
The odd voice spoke out. I have already mentioned John Howard, Samuel Romilly and Robert Peel. In 1910 Winston Churchill, speaking as the Home Secretary, criticised the judiciary for the severity of sentences. He said this:
The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of anycountry.
He advocated rehabilitation of the offender as an important aspect of sentencing. This was rebuffed and Churchill was criticised as out of touch and soft on crime. Much more recently, Lord Phillips, speaking as the Chair of the English Sentencing Council, said in a speech he gave in 2006:
I sometimes wonder whether, in a hundred years time, people will be shocked by the length of the sentences we are imposing [today] as we are by some of thepunishments of the 18th century.2
It is an interesting question.
Base instinct, as opposed to civilised rational debate, has largely driven sentencing responses in the past. Is the situation any different today? The Howard League aside, is there a consistent voice which questions the approaches and assumptions which presently prevail in relation to sentencing? And, would Churchill award this country a pass mark in relation to the mood and temper of the New Zealand public?
Nor, I think, can one take comfort from the views of judges of past eras. At least the English experience indicates that the leaders of the judiciary were conservative indeed — to put it neutrally — even when there existed a political will to introduce change in light of the example provided by other European countries.
To properly appreciate the significance of the establishment of a Sentencing Council it is helpful to refer to sentencing practice in this country over about the last 100 years. Put shortly, sentencing was unregulated for about the first 50 years. Parliament fixed maximum penalties in relation to offences, but otherwise there were no limits, let alone principles which governed the level of sentences imposed. The determination of a sentence in an individual case was very largely at the discretion of a judge. In this, New Zealand was not alone. A similar situation pertained throughout the common law world. Professor Andrew Ashworth, a leading English academic and criminologist, described the situation in these terms:
Before the 1970s in most English speaking countries the choice of sentence was little regulated. The law merely prescribed a [often high] maximum for the permissible sentence, and occasionally a minimum. Within these broad bounds, little further guidance was provided, either in principle or detail. The determination of the sanction in the individual case was left to the discretion of the Judge. In Britain (but not in the United States), an appellate court could review the sentence; but it's decisions attracted littleattention.3
And an American, Judge Frankel, described the sentencing practice in the United States' federal courts as 'lawless'.4 Rightly, he commented that judges imposed sentences largely unguided by principles or rules of any kind. He contrasted this with the situation of a judge in reaching decisions in tort or contract cases, where both principles and precedent guided the determination. Frankel considered the absence of comparable guidance in relation to sentencing, as unprincipled, especially given that the liberty of offenders was at stake.
In earlier years, nor was there any right of appeal against sentence in New Zealand. In relation to summary cases a general right of appeal existed, but this was construed as a right to challenge the conviction alone, not the sentence. It was not until 1939 that appeals against sentence in summary cases were finally recognised.5
Similarly there was no right of appeal against sentence in relation to serious crimes, which were prosecuted on indictment before a jury. Only conviction appeals existed until the passing of the Criminal Appeals Act in 1945. Even then the legislation provided no test or criteria by which sentence appeals were to be decided. Judges were left to find their own way.
The second half of the 20th century saw the emergence of some more defined elements of sentencing practice. This began through the articulation of certain general principles by the Court of Appeal. In 1954 in a hallmark sentencing case6 the Court spoke of deterrence as 'the main purpose of punishment'. The judgment is also notable for the great weight which was accorded to the situation of the trial Judge in determining and imposing the appropriate sentence. Sentence appeals were not an occasion for comparisons as between cases. Appellate courts intervened only reluctantly and irregularly. Subsequent cases set out the court's approach to further matters of general principle, such as disparity of sentence as between co-offenders.7 All these developments were creatures of the appellate system.
Commencing in about the late 1970s and 1980s appellate attention turned to the issue of greater consistency in sentencing. Rather less respect was paid to the advantageous position of a trial judge in exercising a discretionary judgment as to the appropriate level of sentence and, instead, there was a focus upon the need for like sentences for like offences. This new trend was evidenced by a number of tariff judgments in which the Court of Appeal sought to indicate appropriate sentence levels for particular offences. A starting-point for rape sentences was identified,8 and sentence ranges for drug dealing9 and cultivation10 were prescribed. In those distant days, of course, the drug of choice and which most occupied the attention of the courts was cannabis.
Later still the Court of Appeal brought down tariff judgments in relation to other forms of drug dealing, as well as aggravated robbery11 and for wounding with intent to cause grievous bodily harm.12 This cluster of tariff judgments during the 1980s was focused upon serious crimes, those which attracted significant sentences of imprisonment.
The tide turned further against the pre-eminence of judicial discretion with the passing of a new Criminal Justice Act in 1985. Parliament both introduced an increased range of sentencing options and also prescribed some general sentencing principles. Serious violence offences were to be met with sentences of imprisonment unless there were special circumstances justifying a lesser response; while property offenders were not to be imprisoned unless there was effectively no other option.13
Perhaps the trend which most characterised developments in the next decade — the 1990s — was an increasingly vociferous public demand for a more emphatic response to offences of violence. The most obvious manifestation of this was the 1999 general election referendum, when voters were asked to answer that awful question:
Should there be a reform of our justice system placing greater emphasis on the needs of victims, providing restitution and compensation for them and imposing minimum sentences and hard labour for all serious violentoffences?
Inevitably, in light of the multi-faceted nature of the question, the answer was a resounding 92 per cent 'Yes' vote. The government of the day had little choice but to respond to this apparent expression of public opinion.
The Sentencing Act passed in 2002 was the government's response. It comprised the most comprehensive attempt to influence sentencing practice through legislation at that time. The purposes and principles of sentencing; and a non-exhaustive list of aggravating and mitigating factors, were codified.14 But this was fairly light-handed legislation. The matters covered in the Act were already well known to judges and criminal lawyers, although until this point not gathered together, but rather scattered throughout reported and unreported court judgments. But even if it did not introduce wholesale change, the Sentencing Act 2002 was of symbolic significance. For the first time Parliament had exercised its legislative ability to articulate and record matters of sentencing practice. Previously, whether by accident or design, such matters were dealt with in caselaw and hence remained the sole province of the judiciary.
In one respect the new Act did actually prescribe sentencing levels to be imposed in relation to a crime. This was the crime of murder. Previously the only sentence for murder was life imprisonment. This mandatory sentence could be problematic, particularly in relation to so-called mercy killings. To meet this difficulty the mandatory requirement of a life sentence was relaxed, but at the same time Parliament prescribed a minimum term regime in relation to murder generally.
The minimum non-parole term became 10 years,15 but of greater significance was the statutory requirement to impose a minimum term of 17 years, or more, in relation to the worst murders.16 Today, then, the existence of one or more defined circumstances dictates the need for a 17 year minimum term, unless its imposition would be manifestly unjust. These circumstances include murder involving home invasion; murder committed with a high level of brutality, cruelty, depravity or callousness; and murder involving a victim who was particularly vulnerable. I think it was Parliament's assumption that minimum terms of 17 years or more would be the exception rather than the rule. But, in practice this has not proved to be the case.
The list of qualifying circumstances is so widely drawn that on examination most murders are caught. Whatever the original legislative intention, the fact is that murder sentences have increased dramatically. Historically the Parole Board was able to at least consider whether a prisoner should be released once 10 years of a life sentence had been served. Future risk informed the Board's decision. Under the new regime the Parole Board will not even get to look at many cases until 20 or more years have elapsed. Whether this will prove to be a good thing, only the future will tell.
To my mind s 104 — the serious murder provision — represents an example of the worst type of sentencing guideline. It dictates the imposition of an actual sentencing outcome if certain factual criteria exist. In this respect it mimics the approach in some American states where sentences are imposed under a 'grid' system. The judge considers the case by reference to statutorily defined factors. The type and number of factors generates a numerical sentencing outcome. Section 104 is somewhat similar, except that a 17 year minimum term need not be imposed if 'it would be manifestly unjust to do so'. But, this is a very high threshold. It effectively means that sentencing discretion is seriously eroded, if not largely removed. In due course it is to be hoped that the Sentencing Council will take the opportunity to have a lookat s 104.
The history of the last century might indeed suggest that the establishment of a Sentencing Council was simply the next logical step towards greater legislative guidance of sentencing generally. Following a long period during which the judiciary was left to its own devices, the last 25 years or so were marked by an increased level of legislative involvement. And, it might be supposed, that mirroring developments in other countries, including England, the government continued down a consistent path and decided to establish a New Zealand Sentencing Council.
Not so. Some raw statistical information identifies what truly prompted the initiative.
When the Sentencing Act came into force in June 2002 the prison population in New Zealand stood at 5,800. Today the figure is 8,000. The recognised international measure of an imprisonment rate is the number of prisoners per 100,000 people. The per capita rate in New Zealand is about 180. The United States lead the world at about 700 per 100,000. The rate in England is 141, while the Australian figure is 115 and Canada 116. European countries typically imprison considerably less than 100 people per 100,000.17 In terms of the common law countries with whom we ordinarily compare ourselves, New Zealand is second only to the USA.
The Honourable Phil Goff, speaking as the Corrections Minister at a Corrections managers' forum in May of this year said this:
There is a limit on the extent to which ongoing sharp increases in the prison population can solve the problem of criminal offending in New Zealand. To those such as the Sensible Sentencing Trust who allege New Zealand's sentencing laws are soft, I would point out that the rate of imprisonment in New Zealand has doubled over the last 20 years from 91 per 100,000 population in 1987 to 188 per 100,000 in 2007. ... Since 2004, we have added an addition 2,372 beds to the prison system, a rate of increase unprecedented in ourhistory.
These statistical trends tell the story. They prompted the government to refer the problem to the Law Commission. In February 2006 it was asked to consider three matters, including whether 'greater guidance to judges in the exercise of their sentencing discretion ... can serve as an instrument to enable prison muster issues to be managed more effectively'.
Before I turn to the Law Commission's response, it is as well to point out that the recent increase in the prison muster is not a direct result of the passing of the Sentencing Act 2002. Save in relation to sentences for murder, the Act does not prescribe sentencing severity levels. These still remain the responsibility of the judiciary, subject only to the guidance which exists through tariff judgments of the Court of Appeal. A few of the tariffs have been adjusted post-2002, but this cannot possibly account for this unprecedented increase in the prison population over a six year period. To my mind sentence levels, and therefore the prison population, have increased in response to popular demand. The referendum, the media focus over recent years, the rhetoric of lobby groups and the political climate have all combined to influence judges to impose more severe sentences.
Many may argue that this is a healthy development. If the community at large wants criminals to receive more severe sentences, judges should impose them. But does history provide confirmation that severe sentences deter serious crime? Put another way, does the blow-out which has occurred in the prisons' budget necessarily represent good expenditure of taxpayers' dollars? One thing that can be said with confidence is that the government saw the unprecedented increase in the prison population as a problem which required some lateral thinking.
The Law Commission's report entitled 'Sentencing Guidelines and Parole Reform'18 identified six reasons in support of its recommendation that a sentencing council be established. Two reasons were the limitations of appellate guidance by tariff judgments and empirical evidence of significant sentencing inconsistency under the present system.
The Court of Appeal delivers guideline judgments in the normal exercise of its appellate function. The need for a guideline judgment is identified in the course of hearing routine sentence appeals in relation to a particular offence. The court registry then identifies a particular appeal, or even two or three appeals which can be heard together, and the parties are advised that a Full Court will sit (five Judges instead of the normal three) in order to consider and issue a guideline judgment.
This procedure has limitations. The Court is reliant upon the nature and quality of the information provided to it by counsel. Crown counsel will ordinarily have access to statistical and other information which is required to produce a guideline judgment. Counsel for the prisoner, however, is invariably reliant upon a grant of legal aid, will have only limited resources and will be most concerned to secure the best possible outcome for the client.
In the result the Court must do the best it can within the constraints of the appellate sentencing context. It must reach a decision on the basis of the information it is given, supplemented to some extent by its own researches, but it is not free to conduct a wide-ranging inquiry.
And, the coverage provided by tariff judgments is uneven. Generally speaking guideline judgments are available in relation to the majority of serious crimes, but manslaughter, for example, is an exception. By contrast crimes to the middle and lower end of the criminal spectrum are typically not covered by a guideline at all. Research commissioned by the Law Commission demonstrated that, absent a tariff, inconsistency of sentencing practice exists in relation to sentencing outcomes in different parts of the country. One example was with reference to the imprisonment rate for a third or subsequent conviction for driving while disqualified. The variance in the imprisonment rate was from 19 per cent to 47 per cent depending upon the place where the sentencing occurred. For defendants to be two and a half times more likely to be sent to prison, simply because they are sentenced in one court as opposed to another, is unacceptable. Inconsistency of this degree does not represent justice at work.
Two further reasons which influenced the Law Commission were the absence of a cost effectiveness analysis in relation to sentencing options and the problem of predicting and managing prisoner numbers. Appellate courts in striking guideline judgments do not consider the cost implications of their decisions. Judges would be reluctant to do so. Certainly, in imposing individual sentences judges do not, and should not, concern themselves with the administrative cost of the sentence. Yet, as recent history in this country demonstrates, a sentencing policy driven by popular demand comes at a huge cost.
Equally, an ability to predict the prison population is of significant importance. The post 2002 increase in prison population far exceeded official projections. Prisons were filled to overflowing. At times, prisoners have been held in police cells, when these are only intended and equipped for short-term occupancy.
The final two reasons which influenced the Law Commission's recommendation are to my mind the most important of all. The report raised the fundamental question, whether in this day and age it remained appropriate for sentencing policy to rest largely in the hands of the judiciary. Judges must maintain responsibility for the imposition of sentences in individual cases. In doing so, the constitutional independence of the judiciary is of fundamental importance. It provides the best assurance that sentences are not influenced by political or other considerations. But, the sentencing policy, or sentencing environment, under which individual sentences are imposed, is another matter. I would argue that sentencing policy is the concern of the whole community. Ordinarily this would suggest that Parliament ought to evaluate, establish policy and implement it through legislation. This would still leave judges with the anxious and formidable task of fixing sentences in individual cases.
But at least in the current climate no political party can be seen to have a law and order policy at odds with the mood of the electorate. Even if following reasoned analysis, any government moved to reform elements of sentencing policy, criticism would inevitably result unless the changes could be presented as 'tough on crime'.
With this reality in mind, the Law Commission recommended the establishment of an independent statutory body, charged with responsibility for sentencing policy through sentencing guidelines. The choice of this option was linked to the sixth reason it identified in its report. This was termed the 'need to change the nature of the law and order debate'. An approach to sentencing policy which left so much to judges, particularly the appellate courts, also stifled the opportunity for informed public debate. As I have endeavoured to demonstrate, the judiciary left to its own devices developed policy in a piecemeal way, and in the limiting context of deciding individual appeals against sentence. Policy emerged essentially through the judgments of the Court of Appeal. In the meantime sectional lobby groups, the media and political parties were left free to engage in rhetoric about more punitive responses to crime, without any need to heed the consequences of such rhetoric. Soon enough, however, the consequences become apparent, through statistical information as to the per capita imprisonment rate and the growth in the prison muster.
Hence, the Law Commission saw the establishment of a Sentencing Council as a possible means to more rational debate of the policy issues, as opposed to the present law and order auction, which assumes increased intensity every third year.
The Sentencing Council Act was passed in July 2007. It established the Council as an independent statutory body.19 The Council will have a membership of 10. Five members are to be drawn from the judiciary, being a judge from each of the Court of Appeal and the High Court, two District Court judges and the chairperson of the Parole Board.
The other five members are not judges, but persons drawn from the community having expertise in relation to criminal justice issues, policing, risk assessment, reintegration of offenders into society, victims' rights and welfare, the effect of the criminal justice system on minority cultures (including Mäori) and issues affecting the corrections system.20
The principal purpose of the Council is to produce guidelines designed to promote consistency in sentencing practice and to facilitate the provision of reliable information to enable penal resources to be effectively managed.21 Other purposes are to enable policy input based on a broad range of experience and expertise and to pursue reform options, and the information and education of the public about sentencing issues.22
The Council also has a number of statutory obligations. These include requirements to assess and take account of the overall costs and benefits of the guidelines, to provide a statement of the likely effect of individual guidelines on the prison population and to collate and maintain statistical information on adherence to and departures from the guidelines. Some of its other obligations relate to parole issues, which I shall not endeavour to address in this lecture.
The Act requires the Council to make draft guidelines publicly available and to consult interested parties about them before their approval and presentation to the Minister of Justice.23 Once in the hands of the Minister, the guidelines must be placed before Parliament within a prescribed time. Parliament may disapprove of them by virtue of a negative resolution. This means that the guidelines do not require parliamentary approval in the ordinary sense, rather that they are automatically adopted unless there is a resolution to disapprove them. In that event the inaugural guidelines as a whole, or a subsequent individual guideline, would not come into force. But Parliament cannot pick and choose as between aspects of a guideline, nor can it initiate amendments. In the event of disapproval, it is for the Council to reconsider that guideline or that set of guidelines.24
Assuming a guideline passes parliamentary scrutiny, does it have binding effect in the courts? The answer is essentially yes. By virtue of an amendment to the Sentencing Act25 the guidelines have presumptive effect, that is a judge must impose a sentence that is consistent with the guideline, unless he or she is satisfied that it would be contrary to the interests of justice to do so. If a judge decides to depart, by imposing a sentence above or below the recommended range, reasons must be given for the departure decision.26
As I mentioned earlier, an establishment unit under the auspices of the Law Commission has prepared a draft set of inaugural guidelines. This was done with the benefit of input from a range of interested parties and individuals. These cover generic issues such as sentencing method and departures from the guidelines, amongst others; while the main body of guidelines identify sentencing levels for all offences which regularly attract sentences of imprisonment. There are over 50 guidelines in this category, some of which cover an offence type, rather than an individual offence.
Typically a guideline identifies perhaps three bands of seriousness; high, medium and low. Each band is described by reference to objective criteria which characterise offending of that particular level of seriousness. Then follow recommended sentence ranges for the different bands. Depending on the offence, or offence type, a range of sentence types may be available under the guideline, or in other instances imprisonment may be the only sentencing option.
The proposed sentencing levels essentially reflect existing sentencing practice. In some instances the guidelines contemplate a change from existing sentencing levels — either up or down — but it still remains for the Council to consult and decide whether the changes suggested by the Establishment Unit are appropriate.
The invitation to this lecture indicated that I would confront a number of questions concerning the prospects for the sentencing council initiative. You may be thinking that it is high time I did so.
To answer this question it is first necessary to mention the style of the draft guidelines and, of course, for me to act on the assumption that the Council will in due course promulgate guidelines in a similar format. The purpose of guidelines is, as the name implies, to guide the exercise of sentencing discretion, not to dictate the actual sentencing outcome. Hence, the draft guidelines do not purport to provide an immediate answer to a particular sentencing exercise. In this respect they are intentionally different to the style of guidelines promulgated in certain states of America. There a judge is confronted with a 'grid'. All that remains is to identify which factors in the grid are present in the instant case, including the number of the offender's previous convictions, and thereby a specific sentence is indicated.
The proposed New Zealand guidelines require that the judge assess all the circumstances of the particular case on an individual basis. The inherent criminality of the offence is the first issue. By reference to the essentially factual criteria identified in the guideline, the judge must place the offending in the appropriate band of seriousness. That band will identify an available sentencing range. The judge must then choose the point within the range which best reflects his or her assessment of the offender's culpability. This provides what is termed the starting-point.
Then an adjustment is to be made for factors personal to the offender. The factors are the offender's previous criminal history, age and whether there are indicators of good rehabilitation prospects, amongst others. An adjustment — up or down — for personal factors is then to be made.
Finally, if an offender has pleaded guilty, a credit is allowed in recognition of the plea. The appropriate level of the credit, or discount, is to be assessed by reference to a separate generic guideline. This contains a sliding scale which identifies the appropriate discount according to how early, or late, the guilty plea was entered.
If, of course, the three step analysis which I have just described culminates in a sentence which the judge does not consider is in the interests of justice, then departure from the guideline may result. Compelling personal circumstances, of the kind previously mentioned, are likely to prove the most fertile grounds for downward departures from the guidelines. But, upward departures may also occur. These are most likely to eventuate in relation to repeat offenders, particularly those who pose a demonstrated and ongoing risk to the safety of the community.
I think that whether individual guidelines prove to be workable, or not, will depend on whether they strike the right balance. On the one hand guidelines need to be prescriptive enough to promote sentencing consistency. But on the other hand a guideline must remain sufficiently flexible to accommodate a wide range of personal factors. Achieving this balance is no easy matter. And, as personal participation in the process of settling draft guidelines demonstrated, some offences are much easier to accommodate in guidelines, than others. Some guidelines, I fear, will prove to be problematic and will require reconsideration by the Council in light of experience. The legislation allows for this to occur.
All in all I am cautiously optimistic that most of the guidelines will prove to be workable. Lawyers, and the judiciary, already have about 20 years' experience of working with tariff judgments. The proposed guidelines represent both a development and refinement of the previous method, rather than an entirely fresh start. This provides some assurance.
I am sure the impact of guidelines will be most felt in the District Court. Those serious crimes, which most often occupy the attention of the High Court, are already subject to tariff guidance. But in the District Court the availability of a comprehensive set of guidelines should make a significant difference. The impact will also be considerable in the High Court, where judges will have guidelines as a point of reference in dealing with appeals from the District Court.
If I am right in saying that guidelines will, on the whole, prove workable, greater consistency of sentencing outcomes will result. Whether the guidelines will be effective in projecting changes to the prison population is, I think, much more difficult to assess. This is a new and innovative initiative. Ministry officials have experience in projecting likely change to the prison muster as a result of the introduction of new sentencing options, for example on account of judge-imposed home detention which became an option late last year. But projecting prison population figures on the basis of guidelines impresses me as a more indirect, and more difficult, exercise. The only safe answer in relation to this aspect is that time will tell.
At the National Party annual conference at the beginning of August the justice spokesman, Simon Power, said this:
... our priorities differ from those of the Labour Government. They are establishing a Sentencing Council to draft guidelines for judges on how offenders should be sentenced. And one of the roles of that council will be to reduce the nominal length of prison sentences by an average of 25%. Why would anyone vote for that? National believes that we already have a body that tells judges how offenders should be sentenced. It's called Parliament. So I'm announcing today that under a National Government there will be no Sentencing Council. There will be no extra layer of bureaucracy that is notneeded.
These comments are demonstrably wrong on two counts. First, it is the case that any guidelines promulgated by the Sentencing Council will seek to reduce prison sentences by about 25 per cent. But what the spokesman conveniently ignored is that changes to the parole regime, which are to accompany the introduction of a guideline system, will increase the time actually served by prisoners by about 25 per cent. Hence the asserted 25 per cent reduction in sentences is illusory. While sentence levels will decrease, the time served will increase. The net effect will be neutral. How this was missed I do not know.
Second, the assertion that Parliament already 'tells judges how offenders should be sentenced' is equally wrong. I have already discussed this question at some length.
What the final outcome will be in the event of a change of government I do not profess to know. If nothing else it is to be hoped that, if the Sentencing Council initiative is to be 'ditched' (as the spokesman put it), it will be on the basis of rather more rational arguments than those which have been advanced to date.
An aspect of the Sentencing Council Act which, understandably enough, has attracted little attention to date is s 8(d), whereby the Council is enjoined 'to inform and educate the public about sentencing and parole policies and decision-making, with a view to promoting public confidence in the criminal justice system'. Until a sentencing council is actually up and running, it is difficult to know whether this function will prove capable of fulfilment. A lofty ideal enshrined in a statute is one thing. Achievement of that ideal on the ground, is another.
But at least the potential is there. Whether that potential is realised will likely depend upon the extent to which the Council endeavours to engage, and proves itself able to be heard, in relation to the public debate of sentencing issues. It is intended that the Council will have the support of a full-time secretariat. The quality of people who comprise the secretariat will be important. If the ability and commitment of those who were assembled as part of the Establishment Unit is anything to go by, then there is cause for optimism on this score.
In relation to a more rational law and order debate, at least it can be said that there is plenty of room for improvement. The clamour of the last decade or so has prevailed at a heavy price. Our penal policy is in a sorry state. A per capita rate of imprisonment effectively second only to that of the United States, and an unprecedented increase in the prison population, attest to that.
The final question is one raised by the title to this lecture: 'A Sentencing Council: Enlightened or Folly?' However, I shall not attempt to answer it. I have endeavoured to supply a perspective, and to raise some arguments. I leave the final judgment to you.
[*] Judge of the High Court of New Zealand.
 Christopher Hibbert, The Roots of Evil; A Social History of Crime and Punishment (1963).
 Lord Phillips, 'The High SherrifFs Law Lecture, Oxford: Crime and Punishment' (lecture delivered at Oxford University, 10 October 2006). The lecture can be accessed at <http://www,judiciary.gov.uk/docs/speeches.html> .
 Andrew von Hirsch and Andrew Ashworth, Principled Sentencing: Readings on Theory and Policy (2nd ed 1998), preface.
 Marvin Frankel, Criminal Sentences — Law Without Order.
 Dickie v Cunningham  NZLR 1004.
 R v Radich  NZLR 86 (CA).
 R v Rameka  2 NZLR 592 (CA), the first reported New Zealand case dealing with disparity.
 R v Pawa  NZCA 29;  2 NZLR 190 and R v Pui  2 NZLR 193.
 R v Smith  NZCA 20;  1 NZLR 412 (CA).
 R v Dutch  NZCA 44;  1 NZLR 304 (CA).
 R v Moanamui  NZCA 66;  NZLR 537 (CA).
 R v Hereora  2 NZLR 164.
 Criminal Justice Act 1985, ss 5 and 6.
 Sentencing Act 2002, ss 7, 8 and 9.
 SentencingAct 2002, s 103.
 Sentencing Act 2002, s 104.
 Roy Walmsley, World Prison Population List (5th ed), <http://homeoffice.gov.uk.html> .
 New Zealand Law Commission, Sentencing Guidelines and Parole Reform (NZLC R94 2006).
 Sentencing Council Act 2007, s 5.
 Sentencing Council Act 2007, s 10(1), cl 1 sch 1.
 Sentencing Council Act 2007, s 8(a).
 Sentencing Council Act 2007, s 8(b)-(d).
 Sentencing Council Act 2007, ss 13, 14 and 16.
 Sentencing Council Act 2007, ss 17-22.
 Sentencing Act 2002, s 21A.
 Sentencing Act 2002, s 31(1)A.