Back in 2020 – or was it 2017? – Labour announced that it wished to reduce the prison population by 30%. While that has not quite been achieved, there has certainly been a substantial reduction in the prison population since they announced that policy – or perhaps desire is the better word. The question then becomes, “How did they achieve that?” In theory neither politicians nor anyone else can direct judges to impose shorter sentences.
In our system of government, the executive – effectively the cabinet – is theoretically separate from both the legislature – parliament – and the judiciary. The first “separation” is to a large extent in name only; with only the rarest of exceptions MP’s from the ruling party support whatever policy their mates in cabinet tell them to. If they don’t, their careers are lonely and short. At best, all the rest of the members of parliament – those who are not members of a governing party – can do is delay and frustrate the passage of legislation.
The second “separation” – that between the executive and the judiciary – is supposed to be sacrosanct; it is neither the executive’s nor the legislature’s role to criticize or direct the judiciary, and the judiciary ought not to be interfering in government policy or legislation. So how then did the executive – which constitutionally has nothing to do with sentencing – manage to achieve a 25% reduction in the prison population in five years?
On the face of it there are only two ways a reduction in the prison population can be achieved. The first is judges sending prisoners to jail less often in favour of community based sentences; the second is the Parole Board releasing prisoners earlier than they otherwise would have. The third way sentences can be lessened is by the appointment of “soft” judges who will avoid imprisonment whenever they can, and impose shorter sentences than ought to be the case when they must. I am somewhat astounded that there has apparently been no investigation into how this reduction has been achieved. Let’s look at the three possibilities in turn.
In theory, no-one ought to be trying to influence judges’ sentencing; not their fellow judges, not the heads of bench, and certainly not agents of the executive. However we know that in least one case there was a blatant attempt – by the late Wira Gardiner and others – to put pressure on a Family Court judge with the intention that he gave greater weight to the views of Oranga Tamariki regarding the placement of a Maori child. This quite rightly caused something of an outrage when it was revealed – but that was only one case.
Have there been “quiet words” in the ears of some High Court Judges urging them to imprison fewer people for shorter periods? Now I no longer rely on a New Zealand practicing certificate for my livelihood I am prepared to say this is entirely possible. The present Chief Justice Dame Helen Winkelmann was appointed in 2019. She is well known to the profession as being a raving leftie, as was her predecessor Dame Sian Elias. Winkelmann began her legal career with a large commercial law firm, Philips Fox, and later became a barrister sole, specializing in commercial work, insolvency, and medical disciplinary litigation. Prior to becoming a Judge, it is unlikely she ever met a criminal face to face. She would certainly never have met a tattooed gang thug.
Other than Justice Winkelmann, the judges who are “soft on crime” are well known to the profession, just as it is well known who are members of “the A team” – i.e. the more learned and able judges – as opposed to “the rest”. I wish to make it clear that I have no evidence – other than the rapid and substantial reduction in the prison population – to support a claim that Judges of the Supreme Court and/or the Court of Appeal have attempted to influence their brothers and sisters to achieve a reduction in prisoner numbers by softer sentencing. The fact remains however that this has happened, and in a relatively short time. The fact that the reduction followed calls by the Labour government for said reduction is unlikely to have been coincidental.
What about the Parole Board? I have only personally met one of the present Board, one Khylee Quince, formerly an undistinguished academic at AUT and said to be expert, inter alia¸ in youth justice and Maori legal issues. I encountered Ms Quince at a debate on Maori offending and imprisonment a few years ago. It quickly became clear that I was the token “rightie” on the panel; all the others were either Maori criminals – there were three of them as I recall – and a couple of left wing academics, including Ms Quince.
In discussions afterwards, Ms Quince was underwhelming in the extreme: she had no idea for example that there were, at that time, 13 people serving time in NZ jails for a second homicide, claiming that there were “about three”. I later sent her my list of repeat killers; she never gave me the courtesy of a reply.
Have the Parole Board collectively been releasing prisoners more often and after less time served than before the Labour government came to power? Who knows? It would take a careful study – such as a Master’s thesis – to provide evidence one way or the other. Even then, trying to establish some clear evidence would be very difficult, given the wide range of circumstances both of offenders and their offences. In other words trying to compare apples with apples over two time periods – before and after the election of the Labour government – would be very difficult.
What about influencing sentencing outcomes by way of appointment of “soft” judges? I understand there have only been about four High Court Judges appointed since Labour came to power. However, the vast majority of criminal sentencing in New Zealand is done in the District Court. I have no idea how many DCJ’s have been appointed since 2017. Perhaps a reader with knowledge of the numbers in question could enlighten all of us.
So what do we know for sure? Firstly, we know Labour campaigned on substantially reducing the prison population, and we know this reduction has in fact occurred. Secondly, we know that the executive constitutionally has no direct input into what the courts do, and what sentences are passed. But we also know from the Wira Gardiner Family Court case that outside interference has occurred in at least one case. We know about that one case only because the Judge in question bravely made it known to the public that he had been pressured. While that might have been an isolated case, in my view that is most unlikely. Once again, something happened by which government policy regarding prisoner numbers became a reality.In my opinion, it is clear at least on the balance of probabiliies that some person or persons must have influenced members of our judiciary. In a small country like ours, it is inevitable that members of the judicial elites mix often with members of other elites, including politicians. Perhaps we will never know quite how a 25% reduction in the prison population was achieved in five years – it sure as hell wasn’t because of a 25% reduction in violent offending. We are in the middle of a crime wave, and the major legislative response to that has been to repeal the three strikes law rather than a “beefing up” of the law as you would expect.
