6 October 2016

Law Society provides guidance on sentencing considerations

New Zealand’s judges have to balance many different factors when sentencing and a number of those factors in a particular case may be competing, New Zealand Law Society criminal law committee convenor Steve Bonnar QC says.

The Law Society has released a short video [https://youtu.be/JpZcP3Ehl5c] in which Mr Bonnar is interviewed on sentencing considerations and asked to explain how the process works.

He says the factors which have to be considered are set out in the Sentencing Act 2002 and also in cases which have come before the courts on previous occasions, particularly those that have been determined by the higher courts.

“A number of those factors in any particular case may be competing. For example, the judge may have to balance the legal principle that he or she should impose the least sentence which is appropriate in the circumstances with another recognised sentencing principle which is that the sentence should denounce the conduct and deter others,” Mr Bonnar says.

“Now it can be a very difficult exercise to balance those competing factors and it’s perhaps not surprising that judges sometimes say that sentencing is one of the hardest parts of their job.”

Mr Bonnar says a judge is exercising a discretion when it comes to sentencing but it’s not an unlimited discretion.

“A judge has to follow the law and particularly the guidance that a higher courts may have set out in previous cases. It’s important that our system has checks and balances, so if a judge gets it wrong, then either the defence or the prosecution have the right to appeal and the higher court will look at the particular sentence.”

Considering the role of defence lawyers in sentencing, Mr Bonnar says the defence counsel’s role is to say everything that can appropriately and properly be said for their client, in an effort to persuade the judge to impose the least restrictive appropriate sentence

“All lawyers, whether prosecution or defence lawyers, have duties as officers of the court and no lawyer can mislead the court or misrepresent the facts. Both prosecution and defence lawyers have a duty to assist the court to take into account all relevant factors and to attempt to come to a just and fair decision.”

Further Information: The Law Society video is available at https://youtu.be/JpZcP3Ehl5c. ends

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