“In addition to legislation and appellate review, should sentencing discretion also be influenced by public opinion?”
This question was posed by Court of Appeal Judge of New Zealand, Justice Christine French, during the New Zealand Law Foundation Ethel Benjamin Commemorative Address held last Friday (November 6).
The trend of public opinion influencing sentencing is already happening, said Justice French, pointing to the rise of prison muster from 6,000 in 2002 to 8,641 as of December 2014.
Since nothing new was added to the Sentencing Act during this time, “there must be an argument that the main reason for the unprecedented increase in the prison population after 2002 was that the judiciary responded to popular demand,” she said.
Justice French described the ideal situation: a balancing act where judges remained unaffected by “popular clamour” while still giving out sentences which reflect societal values.
“The community’s norms and expectations must therefore be permitted to inform the sentencing process,” she said. On the contrary, “if sentences do not have general acceptance, then confidence in the administration of justice will diminish.”
In order to achieve this balanced state where public opinion and judicial sentencing remain in harmony, improved public knowledge about sentencing was pivotal, Justice French said.
“One New Zealand survey in 2003, for example, showed a strong co-relation between support for tougher penalties and a lack of knowledge about existing tariffs and crime rates.”
Conversely, “an Australian survey of jurors showed that 90 per cent of jurors surveyed at the end of the trial thought the sentence imposed by the judge was appropriate and, in fact, a majority would have personally proposed a more lenient sentence.”
While efforts have been made by the New Zealand judiciary to make decisions more transparent and offer more information to the public, Justice French wondered whether there was more than could be done.
“In the age of the Internet, has the time not come for the judiciary to push back and to engage more, or would that risk undermining the appearance of impartiality?” she said. “I don’t know the answer to that question but it is certainly a debate worth having.”