Editorial: Sentencing no date with a rubber stamp

OPINION: Judged simply on the evidence of a perusal of recent headlines, justice is not only blind but verging on deaf and senseless as well. A Nelson man is fined $750 – more than he earns in a week – for skateboarding on New St. A former Cabinet minister is ordered to spend 300 hours picking up rubbish and doing other menial chores for the community after defrauding two charities of $25,000. A Blenheim woman is ordered to stay at home for eight months, do 160 hours of community work and not drive for three and-a-half years after speeding away from a police checkpoint while drunk and killing a woman who had the greatest misfortune to be in the wrong place at the wrong moment. A 17-year-old "tortured soul" – one of the saddest cases Nelson lawyer Mark Dollimore has dealt with – gets 27 months' jail for his involvement in a series of comparatively minor crimes.

Inevitably, many people will look for parallels between crimes committed and sentences imposed – and find only puzzling inconsistencies. Should someone who, while driving drunk and recklessly trying to evade police, kills another driver, get off virtually scot-free while a teen on burglary and car theft charges gets locked up for more than two years? Would a patched gang member or heavily tattooed non-European have been treated as lightly as former Cabinet minister Roger McClay, on similar theft or fraud charges? And meanwhile, isn't fining a man $750 for riding a skateboard – his preferred option for travelling to and from work each day – outrageously disproportionate to the offence, if indeed it was an offence at all? Surely getting around under our own steam ought to be encouraged, in an age of rising concern over pollution and traffic congestion.

Some apparent sentencing inconsistencies are indeed difficult to follow. However, most cases have such wide-ranging circumstances that attempting comparisons is pointless. Judges must take into account all sorts of factors that might not be apparent to the public – prior convictions, background probation or other court-ordered reports, the complex dynamic between possibility of rehabilitation and the need for punishment, the best interests of the offender, victim and wider society, the prevailing community view as expressed by Parliament.

Hence the gap between conviction and sentencing for many of the more serious offences. Sentencing is no simple, pre-ordained rubber-stamping exercise. Like primary school national standards, consistency is an ideal that is easily called for, but not so simply achieved. Indeed, its merits are arguable. More important, perhaps, for our judges (and teachers) to bring creativity to their task and treat each case (or pupil) on merit, with a primary focus on outcomes.

Of course, for the worst offenders the only possible sentence is a one-way ticket to jail. However, it is appropriate that there should be considerable flexibility for judges, especially when it comes to dealing with young offenders. We already have the second highest incarceration rate in the Western world, and tougher sentencing seems only to have accelerated that trend. For some teens, a jail term might be the wake-up call to turn their lives around. For most, it is more likely to turn them into hardened criminals. How does that benefit them – or anyone else?

- © Fairfax NZ News