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Judges cannot apply any sentence they want. When setting a sentence, Judges have to apply the Sentencing Act 2004 which has a clear and fixed set of steps that their decisions must follow.
Under the Act, a Judge has to assess:
Judges are accountable for their sentencing decisions, in two main ways:
The starting point is the important rule of open justice – the idea that courts should operate in a way that is open to the scrutiny of the public.
In certain cases, defendants or vulnerable parties in a trial are protected by name suppression or other confidentiality orders. While this is a departure from the usual rule of open justice, such orders may be necessary to ensure a fair trial for that individual - for example, to protect the presumption of innocence and right to a fair trial for people within a small community - or to protect the privacy of victims or others involved in a trial – such as where criminal charges involve offences against family members and suppression is necessary to protect the identity of the victims. In situations like this, name suppression plays an important role in delivering justice.
In certain instances, a Judge can provide name suppression on a short term basis, while a party first responds to the charges against him/her, or where that party faces serious hardship. This can include emotional and mental health issues.
The decision of a Judge to grant name suppression is the subject of argument and careful decision-making, weighing up the competing goals of open justice, and fairness to the parties in the case and safety of parties, complainants, and others.
Because of the sensitive circumstances in which these orders are often made, the full range of information taken into account by the judge may not always be publicly available. Caution should, therefore, be exercised in making comment on whether such orders are appropriate in a particular case.
It is also important to note that such orders are able to be lifted if appropriate, for example, where orders have been made to protect the interests of victims but they prefer the defendant to be named.
Under the New Zealand Bill of Rights Act, we are all entitled to a fair trial. That means that the judge and the jury must have an open mind and consider the case on the evidence. The defendant is innocent unless the verdict of the judge or the jury is that he or she has committed the offence.
Sometimes the media will raise issues from a defendant's past, such as a history of petty crime, or even that the defendant is not well liked. None of this may be relevant to a charge of murder, but it may stick in the mind of those who hear it.
When there is speculation in the media and on social networking platforms about the guilt of the defendant, this endangers the defendant's fair trial rights and the Crown's ability to run the prosecution. We can't be sure that a jury will come to the trial with an open mind and decide only on the evidence presented.
The presumption of innocence and the right to a fair trial are the cornerstones of our criminal justice system, and we should protect these at all times. Someday it may be us or a member of our family in the dock, and we will want to be sure that their rights have been protected.