What is a guideline judgment? By the President of the Court of Appeal

The question I am asked most often as President of the Court of Appeal is what happened to the tall guy with the big glasses and a penchant for a chunky pinstripe? But the question I am asked second most often is what is a guideline judgment?

Guideline judgments are the means by which this Court tries to give guidance to courts below, especially in the area of criminal sentencing. A guideline judgment has to be followed by the courts below unlike our ordinary judgments which, well, I guess our ordinary judgments have to be followed too. But a guideline judgment can be relevant in cases other than the appeal it is purporting to decide. Whereas we wouldn’t expect courts below to think that any of our other judgments might be relev- hmmm.

Actually I suppose it’s not about the fact of needing to follow it but more to do with the degree a court below needs to do so. We really really mean it when we write a guideline judgment. You can see that by the way we urge courts to apply them flexibly and we encourage departure and no you’re right that’s the opposite of needing to follow them. Now that I come to think about it we only seem to encourage departure from guideline judgments. I’ve never thought about it that way.

What about this? Guideline judgments ensure consistency among first instance sentencing decisions by identifying levels of sentencing often with reference to aggravating factors. Consistency is a tricky thing in law and you need to treat like cases alike. That’s why guideline judgments eliminate the need to look at like cases and instead look at one judgment that only deals with matters in the abstract.

Hmmm…

Well, guideline judgments have bands.

Except when they don’t, like in Hessell.

And except when non-guideline judgments have bands, like Shramka.

They have five judges.

Okay, they have five judges if you don’t include Fatu or Wallace.

The Court of Appeal does them.

Except when the Supreme Court did one in Hessell.

Look, sentencing is quintessentially a judicial function and guideline judgments are a vital part of the- no, I forgot about the Sentencing Act.

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Fine, we shout obiter dicta through a megaphone then allow any appeal where it hasn’t been treated like ratio.

And they all get in the NZLRs.

I think.

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Yes, they all get in the NZLRs.

I hope that cleared things up.