By Tess Bartlett - Rethinking Crime and Punishment

law and order referendum meant that public sentiment and mood determined penalpolicy where it was driven by powerful law and order lobby groups. The suddeninclusion of the Law Commission, however, indicated that the government wasattempting to reconstruct contemporary penal policy by handing penal power back toexperts in criminal justice. This was reiterated by Justice Minister Mark Burtonwhen he boasted of the government’s fortune in having ‘two of the country’sforemost experts’ on sentencing included in the decision­making process (Burton,2006a: Section 7). The introduction of the Sentencing Council Act on 1 November2007 was further evidence that the government was attempting to draw alternativevoices into the decision­making process. It established the Sentencing Council as anindependent body, with ten representatives including: four judges, the Chair of theParole Board and five lay members with ‘expertise or understanding’ on a range ofcriminal justice issues (such as policing, victim issues and Māori issues) (LawCommission, 2006b: 33). This indicated a willingness by the Labour government toinclude representatives of the community in the decision­making process, but only ifthey were informed and knowledgeable on criminal justice issues. In effect,sentencing policy was no longer to be determined by ‘public opinion’ as reflected inthe 1999 referendum, but by a newly constituted Sentencing Council.The Sentencing CouncilAs an expert body, one of the Law Commission’s biggest concerns was the level ofjudicial discretion in New Zealand’s sentencing and parole practices. It was noted inits report, for example, that… the sentencing system remains a highly permissive one,characterised by substantial judicial discretion as to the way in whichthe purposes and principles of sentencing should be translated intosentencing levels.(Law Commission, 2006a: 18)While it has been noted by Spigelman (1999: 6) that judicial discretion is animportant feature of sentencing arrangements, for the Law Commission it was thelevel of discretion that was cause for concern. The Commission, as a governmentcould be made with regards to parole legislation in New Zealand to ensure that the time served by theprisoner was more in line with the sentence imposed by the court (Law Commission, 2006b).86