Sentencing - criminal process

Sentencing Act 2002 - where does the tension lie

Discretion conferred in ss 7-9 and increasingly prescriptive provisions being added to the Act

s 7 purposes of sentencing in Sentencing Act 2002

• Hold offender accountable for harm done and promote a sense of responsibility

• Provide for interests of victim (incl reparation)

• denounce and deter

• protect the communuty

• assist in offenders rehabilitation and reintegration

s 8 principles of sentencing

• gravity of offending and degree of culpability of the offender

• seriousness of the offence in comparison to other types of offences (indicated by max penalities)

• If super serious case of its type they should impose maximum penalty prescribed

• desirability of consistency of sentencing in respect of similar offenders committing similar offences in similar circumstances

• impact on victim

• impose the least restrictive outcome appropriate in the circumstances

• offenders personal circumstances

• the outcomes of any restorative justice processes

s 9, aggravating features which require sterner response

• actual or threatened violence or use of weapon

• involving unlawful entry into a dwellinghouse

• offence is committed on bail or still subject to a sentence

• extent of loss, damage or harm

• Particular cruelty, abuse of trust or vulnerability of victim

• hate crime

• premeditation of offence

• number, seriousness and relevance of previous convictions

s 9 Mitigating features

• Age of offender (old and youth [age 25= brain development + more likely to be rehabbed]

• whether they pleaded guilty - taking accountability faster process

• conduct of victim [very aggravating or extraordinary]

• diminished intellectual capacity at time of offence

• remorse

• previous good character

time spent on electronically monitored bail -  - not full discount but some recognition as you have more freedom. Time remanded in custody gets taken off any sentence automatically.

hirearchy of sentences and orders from least restrictive to most restrictive s 10A

[te pae Oraka etc come before hand]

• Convict and discharge or order to come up for sentence if called upon [on record']

• sentences of a fine and reparation

• community work and supervision (up to 400 hours)

• intensive supervision and community detention (up to 12 months)

• Home detention (no longer than 12 months)

• Imprisonment

s 106 - discharge without conviction is different, not a sentence but a deemed acquittal.

Sentencing methodology - court developed

1) chose a starting point of imprisonment by reference to - how serous was the offending

• maximum penalty

• aggravating and mitigating features of the offending

• guideline decision if any

• starting points adopted in other similar situations

2) Factor in the offender (sentence can go up at this point)

• aggravating and mitigating features personal to the offender - discounts made from starting point - incl guilty please = max discount of 25%

• see whether the sentence is a just one in all circumstances (Moses v R)

• End sentence must not be out of all proportion to the gravity of the overall offending (totality consideration)

restrictions on court discretion

• when end sentence = > 2 years only available option is sentence of imprisonment

• 2 years or under you can consider home detention and those options lower down the sentencing hirearchy - still a discretionary decision can be sentenced to a short term of imprisonment under 2 yrs rather than those options.

• not supposed to artificially lower the sentence to get to the 2 year mark

Parole Eligibility

sentence to short term of imprisonment (less than 2 years) you are released having served 50% of your sentence

more than 2 years eligible to go before the parole board after serving 1/3 of your sentence.

Well established restrictions on sentencing discretion

• exception for murder - mandatory life sentence with minimum non parole period of 10 years (subject to recall whenever) - sometimes that period can be 17 years if aggravating features

• s 86 - can apply for a minimum period of imprisonment in certain cases where the standard parole eligibility is not sufficient for any or all of the following;

• holding offender accountable for harm done to victim and community

• denouncing conduct in which offender was involved

• deterring the offender or other persons from committing the same or similar offence

• protecting the community from the offender

Recently introduced restrictions of discretion

3 strikes regime (Increasing penalties (w/ carve outs for manifest injustice) for strike offences)

40% cap on discounts

restrictions on repeat discounts for youth and remorse

serious youth offender designation and boot camps.

policies stated as having a significant deterrent effect but there is real doubt as to the effectiveness of this

concern it will impact māori more given their over-representation in prison,

other reforms

• Youth court regime

• Te kōti rangatahi

• new beginnings court

• pilot court for sexual violence

• increased use of restorative justice

Issue: not had as much investment in rehabilitation as we have on tough on crime approaches.