Is anyone judging the Judges?

The papers recently had a terrible story of a student who killed an elderly man following a road rage incident in Auckland in April this year (http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=1060024).

Crusader Rabbit started the discussion on the sentencing of the attacker (http://crusader-rabbit.blogspot.com/2009/09/student-who-killed-elderly-indian-man.html), fuelled in particular by the comments from the sentencing Judge, Justice Judith Potter, that the attack was an "appalling case of what can be described as road rage." She went on to say that the assault was "unprovoked and unjustified."

Yet she sentenced the attacker to just three years in jail.

The outrage is justified. Three years shows a complete disregard for the safety of the community at large, contempt for the victim’s family, and does not reflect the severity of the crime. If this "man" (no offence to real men) is so easily provoked to murder an elderly man over something as insignificant as a traffic incident, he should not be mixing with society.

Sentencing and prisons exist to keep the rest of the population safe by removing the element of harm. The case for rehabilitation is not convincing. You deprive someone of their liberty, whether that is damaging their property or maiming or murdering them, you are a menace to society and have proven that you are not suitable to live with the rest of us. Any "rehab" needs to happen when the anti-social behaviour becomes apparent (perhaps at primary school? Anne Tolley needs to be congratulated). And if this behaviour has only just become apparent, he is too volatile and should be locked up for good, or at least a decent length of time to ensure his medication is working.

However, it would be unfair to claim that this is an inherent problem with New Zealand’s justice system. It would also be unfair to taint all judges in NZ with the same scorn. Some of them have imposed sentences that are harsh, such as jail terms for tagging offences, and indefinite prison terms with no prospect of parole.

A tagger lucked out because he got into Justice Tony Adeane’s court and ended up in jail for a period. The road rage attacker had a good day with Justice Judith Potter as his sentencing judge.

The issue is a lack of consistency between the judges in sentencing, and previous cases are either not used adequately as precedence, or are not adequate sentences in the first place. This is not a unique problem to NZ.

I understand the attraction of giving judges a degree of sentencing flexibility. Offenders are not the same and strict sentencing rules may omit some factors that would lead to a fairer result. Each case needs to be viewed on its unique merits - and given the individuals and circumstances involved, no two cases are exactly alike. Ergo, it would also be a difficult job to judge the judges.

However, flexibility means you sometimes get manifestly unjust results, such as the Auckland road rage case. And presumably (depending on your viewpoint) unjust results in the other direction, too (as no doubt the parents of the tagger felt). What's more, you get unequal treatment. Even though sentencing guidelines exist in NZ, they are too broad to be of any use. Sentences appear to be based on the punishment philosophy of each trial judge. Some believe in the power of rehabilitation and give short sentences. Others defer to the victim and do not. Offenders who have similar backgrounds and commit essentially the same crimes receive widely different sentences depending on the sentencing philosophy of the sentencing judge. And, there are the discretionary judgements that are not immediately obvious, but that may still be factors for the judge (dare I say it?), such as the offender's race, the offender's sex, the degree to which the judge feels social affinity for the offender, or the degree to which the judge feels social affinity for the victim. Our feelings of pity, mercy, and sympathy, as well as our feelings of outrage, are often coloured (perhaps subconsciously rather than deliberately) by such factors, especially when they bear on the connection we feel to the parties.

Is it necessary to remove this broad discretion in sentencing? Do sentences, like the definitions of the offences, need to be made into rules of law, rather than leaving it to the philosophy of the particular judge?

The United States attempted to simplify the sentencing system so that those who committed offences receive similar sentences depending on the way they committed the crime and their criminal records (http://en.wikipedia.org/wiki/ Fed...cing_Guidelines). While these federal guidelines have been faulted for being too harsh in many instances (though I have no firm opinion on the subject), at least the guidelines provide an opportunity for deliberation, both democratic and bureaucratic, about what the right settings should be.

These guidelines should include their own minimums modified to the particulars of each offence, such as the offender's criminal history, the severity of this particular instance of the offence, and other relevant factors. There is also a separate debate over what out-clause guidelines should exist for the truly unusual cases or cases with no precedent. My view is it is better to limit judges' discretion, subject to appeal, than to leave the matter entirely to the judge.

Perhaps it might also be useful to incorporate into the guidelines an acknowledgement that people are looking for a degree of punishment in a crime and deference to a sense of justice for the victim, not leniency.

And whoever is judging the judges at this level needs to learn how to manage some of them out.