Studying sentencing

02 November 2011

This year, 330 Part II law students each took the podium to present sentencing submissions on behalf of their (fictional) clients before a (moot) judge. The exercise was part of a practical assessment introduced into the revamped Criminal Law tutorial programme, which now teaches the criminal sentencing process.

Inspired by the popular annual High Court Sentencing Competition, the course aims to impart to students an understanding and appreciation of the sentencing process and to encourage in them the development of basic advocacy skills. It is an early step in the transition from learning to think like a lawyer to practising as one, and to complement aspects of criminal law presented in lectures.

In tutorials, the students are taught how to approach the purposes and principles of sentencing and to reconcile them in the context of serious offending. They discuss whether sentencing judges should be trying to hold offenders accountable for their crimes and deterring others, protecting the interests of victims and the wider society, rehabilitating those with antisocial tendencies, or trying to achieve some combination of these goals. They are also introduced to the principle of consistency in terms of the key appellate guideline decisions and the modern approach to sentencing (recently outlined in R v Clifford [2011] NZCA 360), while addressing the place for judicial discretion to meet the needs of a particular case.

With this appreciation of the theory in place, the course turns to a practical focus. Students attend a criminal sentencing in either the District Court or the High Court and provide feedback on what they observed. They then apply these observations, their own skills, and the course material in an assessment involving the preparation and presentation of written and oral sentencing submissions.

The moots this year ran during the first week of August and were presided over by Judges’ Clerks and solicitors from Meredith Connell and the defence bar. Each student represented one of six accused in a group aggravated robbery scenario. To the extent that students ever enjoy assessment, the feedback was hugely encouraging. Overall, the submissions were of a high calibre and often argued the fictional defendants’ positions at least as, if not more, persuasively than many advocates that the ‘judges’ have seen in practice. Class participation (not to mention attendance rates) reflected the students’ enthusiasm for the course.

Following the success of the moots a public presentation was held, with the top seven students representing the Crown and six defendants respectively. The students who took part were Joel Surges, Andrew McIndoe, Jonathan Folwell, Alexander Kirch, Elizabeth Hall, Aria Newfield, and Nupur Upudhyay. Judge Anne Kiernan, the Executive District Court Judge in Auckland, presided over the presentation, which was held in the District Court at Auckland on 4 October 2011. At the conclusion of the formal moot, Judge Kiernan congratulated the students for their impressive displays of advocacy and encouraged those present to try to persuade the judge even when it appears that his or her mind is made up. Also in attendance were Judge Claire Ryan, Dr Andrew Stockley, and Stephen A’Court from LexisNexis, who presented prizes of book tokens to the participants and to the evening’s winner, Jonathan Folwell.