Retired judge and former Power List member Robert Fisher KC has stepped into the argument over the degree to which the judiciary is answerable for sentences.
The NZ Herald opinion piece said that criticism is expected and acceptable in an open democratic society. He emphasized that judges are answerable to the public and that public scrutiny of sentences is a natural part of the judicial process.
The Sentencing Act of 2002 guides judges on how to approach sentencing, outlining 36 different considerations they must take into account.
As LawFuel has reported, Robert Fisher is former High Court judge, serving from 1984 until 2004 and since his retirement from the bench he has worked from Bankside Chambers as an arbitrator and mediator as well as serving as an appellate judge in several Pacific states and undertaking government inquiries such as the infamous inquiry into David Bain’s compensation.
These factors encompass aspects such as the severity of the offense, potential penalties, presence of violence, offender’s age, guilty pleas, and cultural background.
The article addresses a recent radio interview involving the former Minister of Police, Stuart Nash, and Mike Hosking.
Nash expressed concerns about the “lack of transparency” in the sentencing process and the perceived lack of accountability for judges. However, the article clarifies that judges do provide reasoning for their sentences in open court, and these reasons are recorded in formal documents available for analysis on appeal.
“Sentencing judges are held to account. Either party can appeal to higher courts. Those entitled to appeal include the Solicitor-General. The Solicitor-General will appeal if she believes the sentence to be manifestly inadequate and that an appeal would be in the interests of the public.” Robert Fisher
In terms of accountability, the article explains that sentencing judges are indeed held accountable through the appeals process. Parties involved in the case, including the Solicitor-General, can appeal sentences they consider manifestly inadequate. Appellate courts review these appeals and publicly address any errors made by the original judge.
He drew a comparison with the United States, where some states subject judges to partisan elections or political pressures, leading to concerns about the erosion of traditional respect for the judiciary.
He contends that New Zealand should avoid adopting similar accountability measures, as they could undermine the independence and integrity of the judiciary.
In summary, the Fisher article underscores the inevitability of criticism faced by judges regarding their sentencing decisions and highlights the transparency of the New Zealand sentencing process and the existing mechanisms of accountability through the appeals system while cautioning against adopting methods that could compromise the judiciary’s independence.