Law and Society - Sentencing and Imprisonment

Sentencing Process - Police v Huber

  • Elicia Huber escaped managed isolation to attend her father's tangi after her compassionate exemption was denied.

  • She was charged under the COVID-19 Public Health Response Act 2020, s 26, which allows for imprisonment up to 6 months or a fine up to 12,00012,000 for non-compliance.

  • Sentencing Act 2002 guides the sentencing process.

  • Snapshot of sentencing process:

    • Determine a starting point based on the offense's gravity.

    • Consider aggravating factors to increase the sentence.

    • Consider mitigating factors to reduce the sentence.

    • Discounts for guilty pleas.

    • Determine final sentence and appropriateness of community-based sentences.

  • Judges consider past similar cases, pre-sentence reports, and purposes/principles of sentencing (Sentencing Act 2002, sections 7, 8).

  • Purposes of sentencing (Section 7(1) of the Sentencing Act 2002):

    • Accountability, responsibility, victim interests, reparation, denunciation, deterrence, community protection, rehabilitation.

  • Huber Case:

    • Starting point: 2-3 months imprisonment.

    • Aggravating factors: Previous criminal history, planned escape.

    • Mitigating factors: Grief, attempts to seek compassionate leave (50% reduction).

    • Final sentence: 14 days imprisonment due to the need for general deterrence and the exclusion of alternative sentences.

  • Critical perspective: Disparity in sentencing compared to a similar case (buying alcohol), questions of Tikanga appropriateness, and the limits of imprisonment as deterrence.

Imprisonment Figures in Aotearoa New Zealand

  • Differing views on prison population:

    • Government aims to reduce prison population through rehabilitation and mental health services.

    • Opposition focuses on genuinely reducing crime as the primary way to decrease prison population.

  • Influence of economic systems:

    • Liberal market economies (e.g., NZ) are more punitive.

    • Coordinated market economies focus on reintegration.

  • Influence of political systems:

    • First Past the Post (FPP) systems imprison more people.

    • Proportional voting systems (e.g., NZ since 1996) tend to imprison less.

  • Citizen-initiated referenda and focus of small political parties influence NZ's approach to crime despite proportional voting.

Three Strikes Legislation

  • Sentencing and Parole Reform Act 2010 (Three Strikes Law):

    • For 40 serious violent crimes.

    • First offense: warning.

    • Second offense: full sentence without parole.

    • Third offense: maximum sentence unless "manifestly unjust."

  • Repealed in November 2022 due to concerns about its effectiveness and disproportionate impact on Māori.

  • Reinstated in December 2024 with modifications.

    • First strike applies to sentences above 12 months, then 24 months for strikes two and three.

    • Extended "manifestly unjust" exception for judicial discretion.

Remand in Prison Crisis

  • As of March 2025, 42.9% of prisoners are on remand, awaiting trial or sentencing (4578).

  • Concerns about the length of time in custody on remand.

  • Bail Amendment Act 2013 introduced presumption of detention, unless the person can prove they should be released.

    • Concerns it erodes right to trial without undue delay and presumption of innocence (NZBORA 1990, s 25).

Ethnic Inequities

  • Ethnicity of prison population (March 2025):

    • Māori: 52.6%

    • European: 28.2%

    • Pacific: 12.2%

  • Mass incarceration is Māori incarceration due to:

    • Colonization, broad social forces, specific risk factors, and discretion in the system (racism).

  • Key Questions:

    • What does the Huber case tell us about the sentencing process?

    • How does NZ’s legal system inform NZ’s high imprisonment figures and the imprisonment inequities facing Māori?