The New Zealand Law Society
said that sentencing is hard and explains why the process is often cited by judges as the hardest part of their job.
In a short video released by the Law Society, criminal law committee convenor Steve Bonnar QC explained that the complexity of sentencing due to the many factors a judge will have to ponder make it especially difficult to complete.
“When it comes to sentencing, a judge has to balance many different factors and those factors are set out in our Sentencing Act (2002) and also in cases which have come before the court on previous occasions, particularly those that have been determined by the higher courts,” Bonnar said.
“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,” he said.
“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,” he continued.
The senior lawyer noted that the discretion judges should exercise when sentencing is not limitless.
“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,” he said.
Regarding the role of the media which often comment and analyse sentences after they are handed down, Bonnar said that it is part of the media’s duty to do so.
“They play a significant role as the eyes and ears of the community in relation to what’s going on in our courts – and to some extent they may reflect the views of the community,” he said.
Nonetheless, he also said that part of the responsibility of the media and law professions is to educate the public.
“However, in my view, the media and we as lawyers also have a role to try to fully inform the community and educate the general public as to many of the reasons and policies which may lay behind some of the decisions of the courts,” he said.
As for the role of defence and prosecution lawyers in sentencing, the senior lawyer said that it is their duty to make sure the court considers all factors.
“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,” he said.