In the Sentencing Act, deterrence is one of a number of factors that Judges have to take into account, deter a particular defender to persuade him or her and the community in general not to do that offending again.
It is a statutorily recognised sentencing principle that Judges may consider.
Deterrence is seen as one of the ways of persuading people not to commit offences. However, human nature is such that, for example, in a family of three children, punishing the older child does not necessarily deter the third child from behaving in the same way. Deterrence can be a factor, but is not something Judges have to place uppermost in their mind; it is one of a range of factors.
Inadequate information
It should be noted that Judges consider information that the public does not have. News media reports do not have the whole range of information that the Judge imposing the sentence had in front of them.
The public know only what a journalist reports, which is a small snippet of all the information, and wonder why outcomes seems different or inconsistent with other sentences imposed.
Judges have a breadth of information including a summary of facts from Police, a probation report that examines a whole range of circumstances and is quite lengthy, a victim impact statement, and submissions from prosecution and defence counsel.
The Judge considers not only punishment and deterrence but also rehabilitation and making the offender accountable, being consistent with other people appearing on similar offences and in a similar range.
Judges do not arbitrarily sentence people according to how they feel that day. They look at the particular seriousness of offending of that particular person and aim to sentence in a similar way to another person on the same range of offending.
If those sentences are wrong, it is up to Parliament to say they are wrong.
The Court of Appeal provides sentencing guidelines within tight, narrow bands and tariffs, which provide a set range of prison terms for particular offending.
That is then varied for each particular defendant, taking into account aggravating and mitigating factors.
Judges have to operate within the law and do not have discretion to impose sentences that do not fall within the law.
The above is the response given by the judges of the Auckland District Court at their ‘Community Day’ held at Fickling Convention Centre on September 24, 2012. The Editor of this newspaper was present at the meeting and the responses of the judges to a number of questions are published in a series. The responses are reproduced verbatim, as given by the judges. The first eight parts appeared in our past issues from November 15, 2012.
