Indeterminate Sentencing Flashcards

Flashcards about Indeterminate Sentencing

Indeterminate Sentence

A sentence with no specified end date, potentially including a minimum period before parole application or requiring demonstration of safety for release.

Types of Indeterminate Sentences

Murder, Preventive Detention, Extended Supervision Orders, and Public Protection Orders.

Purposes of Sentencing

To hold the offender accountable, promote responsibility, provide for the victim's interests, provide reparation, denounce conduct, deter the offender or others, protect the community, and assist in rehabilitation and reintegration.

NZBORA Section 9

Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

NZBORA Section 22

Everyone has the right not to be arbitrarily arrested or detained.

Preventive Detention

Imposed to protect the community from harm under s7(1)(g) Sentencing Act.

Preventive Detention Purpose

s87(1) the purpose of preventive detention is to protect the community from those who pose a significant and ongoing risk to the safety of its members

Three Criteria for Preventive Detention

Qualifying offence, over age of 18, Person is 'likely to commit another qualifying sexual or violent offence if the person is released at the sentence expiry date

Section 87(5) Sentencing Act

Lists 14 sexual and 18 serious violent offenses.

Length of MPI

Must properly reflect the gravity of the offending. S89(1): must be at least 5 years.

Statistics Year ending June 2025

286 people subject to PD, 5 sentenced in that year, 81 are currently in the community, 81% are sex offenders, 45% are Maori, 1 woman, 38% are over 60 years

NZBORA Issues with PD

Right to be presumed innocent Right not to be arbitrarily detained

Two Parts of the Sentence

The punishment element and the preventive element.

NZ Law Commission Review

Review on Preventive Detention, Extended Supervision Orders and Public Protection Orders

PD may be in breach of ICCPR

Miller v NZ [2017] 11 HRNA 400 (UNHRC)

Barry Allan Ryder Lloyd Alexander McIntosh

Sentencing Act 2002 broadened scope of preventive detention What about those who were sentenced before this?

Criteria for Granting ESOS

APPLICATION BY THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS (s107F) MUST BE AN ELIGIBLE OFFENDER (s107C) MUST BE AT HIGH RISK (SEXUAL OFFENDING) OR VERY HIGH RISK (VIOLENT OFFENDING)

ESO Criteria

Court will grant an ESO for a maximum of 10 years How serious is the risk posed by the offender? How serious is the harm that could result if an ESO is not granted? What is the likely duration of the risk?

Statistics of ESO

183 people are subject to ESOS, 28 imposed in 2025- 23 sexual offenders, 5 violent offenders Average length 1692 days (4-5 years)

NZ LAW COMMISSION REVIEW

Concerns all may breach NZBORA

RETROSPECTIVITY General Rule

an offender is entitled to be judged and sentenced according to the law on the day he committed the offence/was sentenced (ss25-26 NZBORA)

DOUBLE JEOPARDY-2004 General Rule

People can only be punished once for an offence. Noone who has been finally acquitted or convicted of an offence shall be tried or pardoned for it again ($26)

BELCHER v CHIEF EXECUTIVE OF CORRECTIONS [2007] 1 NZLR 507 Court of Appeal

the imposition of an ESO is a punishment and therefore appears inconsistent with the right against double jeopardy