Sentencing Theory and Practice

End of semester exam

End of sentence

A sentenced individuals serves the full term unless early release is granted via compassionate release, parole, or short term sentence release.

Determinate sentence

A fixed-length prison sentence that cannot be altered by parole boards or other authorities.

Has a fixed end date.

Can apply for parole after serving one-third.

Indeterminate sentence (life imprisonment)

No fixed end date—offender may serve life unless granted parole after the MPI.

Concurrent sentences

All sentences are served simultaneously. Example: A person convicted of 3 offences with sentences of 4, 3, and 3 years. Concurrent: 4 years.

Cumulative sentencing

Sentences are served sequentially. Example: A person convicted of 3 offences with sentences of 4, 3, and 3 years. Cumulative: 10 years.

Parole

The conditional release of a prisoner before completing their maximum sentence, allowing them to serve the remainder of their time under supervision in the community. Available for sentences over 2 years. Parole can be revoked for violations of the conditions set during release.

Compassionate release

Is a policy granted for offenders who have recently given birth or are seriously ill and are unlikely to recover.

Short term sentences

Are defined as determinate sentences of 24 months or less, often used for less serious offences to encourage rehabilitation without long-term confinement. The courts may impose conditions upon release.

Appeals

Are legal processes in which a convicted individual seeks to overturn or modify a court's decision on the basis of alleged errors in the application of the law or procedural irregularities during the trial.

Clean Slate Act (2004)

Legislation that allows individuals with certain criminal convictions to have their records expunged after meeting specific criteria, promoting reintegration into society.

Expungement of homosexual offences (2018)

The only criminal records eligible for complete erasure in NZ. This allows individuals previously convicted of homosexual offences to have their records expunged, reflecting a shift towards greater acceptance and equality.

Rules for murder sentencing

Courts assume life imprisonment but can determine exceptions if manifestly unjust.

Sentencing lengths can vary based on circumstances.

Three Strikes Regime

A sentencing policy that mandates longer prison sentences for repeat offenders, often leading to life sentences after three convictions. It applies to 40 serious violent crimes, each requiring a minimum 5 year sentence.

First strike

Applies to first time offenders (18+). The judge delivers standard sentence + warns the offender of future strike consequences.

Second strike (non-murder cases)

The offender must serve full sentence without parole or release. The courts have no discretion to modify sentences.

Third strike (non-murder cases)

The Judge must impose the maximum sentence with no parole unless manifestly unjust.

Second or third strike (murder cases)

Mandatory life imprisonment without parole unless manifestly unjust.

Concerns w Three Strikes

Offenders with previous strikes receive harsher sentences than others for the same offence.

Removes parole and early release, reducing incentives for rehabilitation.

Limits judicial discretion, preventing judges from considering individual circumstances.

Repeals and reform of Three Strikes

Introduced: July 2010 (National).

Repealed: August 2022 (Labour).

Reinstated: June 2025 (National/ACT/First).

New changes to Three Strikes

Now applies to sentences over 24 months.

Judicial discretion added to each stage to prevent unjust sentences.

Strangulation added as a qualifying offence.

Preventative detention (PD)

Found in sections 87-90 of the Sentencing Act.

Imposed to protect the community from serious repeat offenders.

Three key criteria for PD sentencing

1. Qualifying offence (listed in section 84: 14 sexual, 18 violent offences).

2. Offender must be 18 (prior to 2002 it was 21).

3. Offender likely to commit another serious offence if released at the sentence expiry date.

NZBORA issues w PD

Risk prediction flaws: sentencing is based on assumptions about future behavior, which may be inaccurate or unfair.

Lack of rehabilitative focus: offenders live under standard prison conditions, rather than a specialized framework for rehabilitation.

No certainty of release: some offenders may never leave prison, even if they show improvement.

Extended Supervision Order (ESO)

Found in section 107a of the Parole Act 2002.

The purpose is to protect the community from high risk sexual and violent offenders post sentence.

ESOs can be imposed for up to 10 years but are renewable.

Functions like parole, but community based and monitored.

Courts grants ESO, parole board imposes conditions.

If breached, offender can be returned to prison.

Criteria for ESOs

1. Application by the Department of Corrections s107f

2. Offender must have served imprisonment for a relevant offence and/or has not completed their sentence (includes parole or prior ESO).

3. Offender must be high risk (sexual offending) or very high risk (violent offending).

Changes to ESOs (2014)

The 2014 amendment allowed for the renewal of ESOs for offenders with high or very high risk of reoffending, monitoring offenders beyond the initial 10-year period.

Courts can impose around-the-clock monitoring for up to 12 months. This intensive monitoring ensures strict control over the most dangerous period post-release.

ESOs expanded to include sex offenses against adults and violent offenses in 2014, addressing ongoing risk and requiring extended supervision post-release.

Retrospectivity concerns w ESOs

NZBORA states that offender judgments should follow the law at the time of the offense. However, Section 107c(2) of the Parole Act 2002 allows for retrospective application of ESOs, even if an offender was convicted before ESOs were introduced. Critics argue this violates the principle that laws should not change past sentencing outcomes.

Double jeopardy concerns w ESOs and PPOs

NZBORA prohibits double jeopardy, meaning offenders should not receive additional penalties for the same crime. Belcher v Chief (2007) case found ESOs inconsistent with double jeopardy protections, but the Supreme Court denied appeal, reaffirming their preventative nature.

PPOs are similar to ESOs but potentially more restrictive.

NZBORA typically deal with criminal regimes, PPOs are civil, so may not breach NZBORA.

Law Commissions Report - Current issues w preventative measures

Courts struggle to impose the most appropriate orders while ensuring public safety and compliance with human rights.

PD restricts offenders rights without adequate rehabilitation focus.

It fails to align with Māori tikanga or the treaty’s obligations.

Some serious offences (strangulation, child abuse material possession/distribution) are missing.

Law Commissions Report - Recommended legal reforms

Replace fragmented laws with a single statute governing all preventative measures.

Include strangulation/suffocation and child abuse material offences.

Promote offenders placement with iwi, hapu, marae, or whanau.

Preventative measures should focus on reintegration into safe community life.

Three new preventative measures

1. Community preventive supervision: supervised life in the community.

2. Residential preventive supervision: detention in a community based facility.

3. Secure preventive detention: detention in a high security facility preventing escape.

Public Protection Orders (PPO)

The Public Protection Orders (PPO) introduced by the Public Safety Act 2014 allow courts to indefinitely detain individuals at secure facilities within prison grounds for violent or sexual offending, despite additional supervision provided under ESO.

Criteria for PPO

1. Conviction for a serious violent or sexual offence.

2. In the last six months of their sentence.

3. Very high risk of imminent reoffending (within the next few years).

Duration for PPO

PPOs are not permanent by default, but they continue indefinitely unless reviews find the offender no longer poses a serious threat.

Annual reviews ensure ongoing assessments of risk.

Court reviews every five years provide an opportunity for legal challenges and reconsideration.

The goal is to keep the community safe while ensuring fair treatment for detained individuals.

Living under a PPO

Living under a PPO requires secure residence on prison grounds (Matawahiti facility), restricted except for emergencies, medical/dental treatments, court hearings, rehabilitation programs, and humanitarian reasons, restricted communication, strip searches, and no alcohol or tobacco.