Strange justice?

Liam Reid
Liam Reid
Nigel Hampton QC put his finger on it when he said: "At a human level I wonder why. As a lawyer, I understand."

He was referring to the Court of Appeal's reduction last week of the minimum non-parole period from 26 years to 23 years in the sentence of Liam Reid (36) for the November 2007 rape and murder of deaf Christchurch woman Emma Agnew.

Most people do not have the legal training of Mr Hampton and so it should not come as a surprise that there has been a degree of outrage at the higher court's "tinkering" with the sentence in what, by any measure, was an especially grotesque and brutal crime. (Reid had also raped and attempted to murder a 21-year-old Dunedin woman nine days after killing Ms Agnew).

Some of those people see in the reduction of sentence the academic posturing of a justice system that has lost touch with the feelings and wishes of ordinary people; that it is an unnecessary insult to the family and friends of the victims.

They point out that the presiding trial judge, Justice Lester Chisholm, sat throughout, and having carefully considered all the evidence, imposed sentence accordingly.

At one level they are correct: the decision is academic, but not because it does not matter. Rather because it will not affect the amount of time that Reid spends in prison. He was sentenced to preventive detention - which means he cannot be released until authorities are satisfied he is no longer a danger to society.

The same does not apply to two further sentences reduced on appeal by the same court this week. Christchurch man Gary Shane Ian Nicholas (29) had a nine-year prison sentence for raping a teenager last year reduced to eight years.

The Court of Appeal judgement released on Tuesday, while acknowledging that the attack was "plainly a terrifying and violent incident" found the original sentence handed down to be "manifestly excessive".

Likewise the sentence of former Child, Youth and Family worker Ralph Lindsay Brunie (40) - sentenced to seven years' jail last November having been convicted of having sex with a 15-year-old girl in his care - who had his term reduced by one year to six.

In this case, the court said the offending involved a high level of premeditation and, "the breach of trust arising from the appellant's predations on this particularly vulnerable young woman required a stern response in terms of both denunciation and deterrence."

Whatever the logic, the additional two cases have also raised the hackles of observers and justice and sentencing lobby groups, as well as the eyebrows of legal commentators. Mr Hampton again appeared to be at odds with the decision of the higher court on the Nicholas case, suggesting it was another instance of "tweaking too much".

"One would think the sentencing judge, who sees the people first-hand, who hears the victim first-hand and has the offender in front of him first-hand often has a better view of the circumstances than some judges rather more remotely up the chain, some of whom have very little trial experience," he said.

There is certainly common sense in his position - one with which much of the general public will have little difficulty concurring. But, as has been regularly pointed out since statutes existed and courts of law passed sentence, common sense and the law frequently appear to part company.

So are these cases pointless exercises by an ivory tower appeal court, the only effect of which could be to reopen old wounds and exacerbate a suspicion that some judges "just don't get it"? This is certainly a message lobby groups, such as the Sensible Sentencing Trust, go to some lengths to reinforce.

But it does ignore a central tenet of the Court of Appeal's raison d'etre: the adjudication of the law in a evenhanded manner across the breadth of the lower court jurisdictions so as to maintain a sense of fairness and confidence in the justice system.

Much work has been done in recent years on the development and implementation of sentencing guidelines and "tariffs" so that District Court and High Court judges in fact have less flexibility to deliver "maverick" sentences than is generally supposed. Some of this has been driven by public, and thus political, appetites for tougher sentencing - hence this country's rapidly rising prison population.

The flip side, however, is that evenhandedness and parity of sentencing applies at the higher end of the offending spectrum as well as the lower. Or to put it another way, any system that attempts to impose rational, logical and as far as possible uniform decisions - and to hold the lower courts to account - will inevitably find instances of under-sentencing and over-sentencing.

Reducing vile human offending to matters of mathematics, particularly for such horrific high-profile cases as Liam Reid's, may be imperfect and stick in the craw, but it is one critical foundation of "the rule of law".

Followed to its extreme but logical conclusion, the alternative - whereby high-running emotions and moral outrage exert undue influence - ends with a mob, a length of rope, and a tree.

 

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