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Sentencing policy and guidance. A discussion paper. Ministry of Justice [1997] NZPenalPP 1 (1 October 1997)

Last Updated: 21 September 2020

Sentencing Policy and Guidance

A DISCUSSION PAPER

Ministry of Justice

New Zealand

First published in October 1997 by the
Ministry of Justice
PO Box 180
Wellington
New Zealand

© Crown Copyright

ISBN 0-478-20134-6

Acknowledgements

The Ministry of Justice would like to thank Professor Warren Young of the Victoria University of Wellington Faculty of Law and Geoff Hall, Associate Professor of Law at the University of Otago Faculty of Law, for their helpful suggestions and comments on a draft copy of this discussion paper. While we must accept responsibility for the final paper (and any defects in it), it has been much improved through their input.

Foreword

Sentencing decisions, particularly custodial ones, constitute an extreme example of the range of powers the state has over the individual and, as such, public interest in them will be persistent. It is also the case that sentencing policies and practices change over time in response to both legal and social influences, and in ways that the public are not always aware of until some time after the fact. The degree to which public discussion has informed changes in our sentencing system has not always been extensive, and there is an argument that this is an area that should not be too easily swayed by public opinion. Nevertheless, the public are entitled to an assurance that the considerable powers given to the judicial branch of government are exercised in a fair and equitable manner. Furthermore, open and informed public debate about sentencing goals and procedures should make an important contribution towards maintaining public confidence in the administration of justice.

This discussion document has been produced by the Ministry of Justice in response to a request from Government that a report be issued on the subject of sentencing policy and guidance, as a means of generating widespread public debate in this area. The paper sets out to analyse the arguments surrounding the various rationales on which sentencing policy may be based and the ways that sentencing guidance can be formulated. There is discussion of the current sentencing process and some of the problematic issues faced by those who determine sentences.

This paper has not set out to discuss in detail New Zealand’s criminal laws or penalty structure (the grading of offences and the specific sentences for discrete crimes). Nor does it discuss the merits of the various types of sentences or procedural issues other than those involving the judge’s consideration of sentencing options.

Similarly, parole and remission, although clearly affecting the sentences that offenders serve, have been largely excluded from consideration. The discussion does not advance any particular view as regards the greater or lesser use of particular sanctions. It focuses instead on the basis of the sentencing decision: on what principles and for what purposes sentences should be imposed, and the policies and approaches to sentencing which may be formulated and applied in particular cases. In examining these issues, the starting point is the desirability of fairness and consistency, and of ensuring the state exercises its coercive powers in a humane manner in accordance with international obligations.

It is acknowledged from the outset that the process of sentencing consistently generates considerable public debate in the media and within communities. It is also a contentious issue amongst participants and professionals in the criminal justice system. No specific proposals for reform are included in this paper. Rather, as the purpose of the paper is to encourage informed debate, issues for response are identified at the end of Chapters Three to Twelve and collated after the Executive Summary.

This paper is being widely distributed and submissions are invited from interested individuals, groups, and organisations on the specific issues it covers. Submissions should be forwarded by 28 February 1998 to:


The Project Manager
Sentencing Policy and Guidance Project
Criminal Justice Policy Group
Ministry of Justice
Private Box 180
Wellington





Colin Keating
Secretary for Justice

Table of Contents
Page

Bibliography-----------------------------------------------------------------------------172

Executive Summary

  1. Offenders sentenced by the courts are responsible for only a small and selective proportion of the crimes actually committed in the community. It follows that changing sentencing legislation and practices in itself will not have a significant direct impact on the real level of crime in society. Nevertheless in recent years, especially in those countries where courts have traditionally exercised considerable discretion, sentencing policy and guidance have come under close scrutiny and in some jurisdictions major changes have been introduced. This has been because of increasing expressions of concern in various sections of society. These stem from a variety of conflicting views over such matters as:
  2. There are two legal sources of sentencing guidance: legislation and judicial decisions. In New Zealand legislation sets out maximum penalties in terms of periods of imprisonment and/or fines. The Criminal Justice Act 1985 sets out a number of other sentences and orders which the courts may impose as alternatives to imprisonment. The Criminal Justice Act also has some general guiding principles. Judicial decisions on appeal, particularly those of the Court of Appeal, give the judiciary a general guide to sentencing practice and principles and their application in particular cases.
  3. Current statutory maximum sentences and legislative guidance do not reflect a consistent rationale. Maximum sentences do not accord with the relative seriousness of offences indicated by judicial sentencing practices and by the sentencing principles in the Criminal Justice Act. Legislative sentencing guidance is not particularly specific, especially for sentences other than imprisonment.
  4. Court of Appeal guideline judgments have indicated the range of penalties appropriate in respect of some categories of offences, which still leaves judges the discretion to impose different penalties where there are unusual circumstances. Furthermore, Court of Appeal guideline judgments may be viewed as an ad hoc and incremental approach to sentencing policy, and they do not cover the full range of sanctions or offences.
  5. The most oft-cited rationales and goals of sentencing are retribution and denunciation (or just deserts); deterrence; incapacitation; rehabilitation; and restitution.
  6. Under a desert-based model the sentence is a punishment for wrongdoing and is only for the offence(s) for which guilt is established. This approach does not attempt to predict or prevent future offending. In a just deserts system the punishment emphasis is balanced by the rights emphasis. The objective is that the sentence is both just and deserved by being linked to the seriousness of the offence. The harm done or risked, and the offender’s culpability are the key determinants of offence seriousness. Just deserts does not pursue wider social goals through sentencing, although some theorists argue that public censure, and the deprivation of money, time, or liberty which expresses this censure have a general crime prevention role.
  7. One issue which the just deserts model has difficulty in addressing is that of restitution to victims and the community. The focus of just deserts is very much on the state responding to the offence on behalf of, and for the benefit of, the community. There is potential for conflict between the censure deemed to be appropriate to the offence and the compensation or other actions required to meet victims’ needs. For instance, desert may indicate a prison sentence as appropriate which may mean it is very difficult, if not impossible, for the offender to make any compensation to the victim.
  8. Individual and general deterrence aim to influence future levels of offending through instilling fear of its consequences in either the individual offender, society at large, or both. While it is reasonable to assume that the very existence of the criminal justice system has some deterrent value, there is little evidence to support the view that increasing the level of sentences will deter the individual offender or would-be offenders in general.
  9. One of the difficulties with deterrent sentencing is that there are numerous potential influences on offending behaviour, and these will vary between individuals. Even if the potential for conviction and sentencing acts as a general deterrent, this does not necessarily mean that an increased level of sentence will be a greater deterrent. Another limitation is that potential offenders will not necessarily have full information about the likely level of penalty.
  10. Aside from these reservations as to how effective deterrent sentencing can be, there are ethical concerns with the premise of deterrent sentencing. Individual deterrence, in effect, imposes additional punishment for the offender’s previous convictions in the attempt to deter. General deterrence turns the offender into an example to others. Fairness between offenders of like culpability is clearly sacrificed if one or some are chosen as an example, or if some happen to be sentenced at a time when there is a particular concern about the level of offending. The question is whether, and to what degree, fairness should be sacrificed in return for an expectation of future crime prevention which has little empirical foundation.
  11. Incapacitative sentencing aims to protect the public from future offending by the particular offender being sentenced (generally equated within imprisonment). The offender is not sentenced on the basis of the conviction offence, but rather according to predictions as to his or her likelihood of future reoffending.
  12. The experience of the United States in recent decades suggests that collective incapacitation policies are extremely costly in terms of prison overcrowding, resources, and wasted human lives, while crime rates remain high. Similarly, in New Zealand, crime rates have generally risen along with prison populations.
  13. Selective incapacitation offers the possibility of a better return than collective policies because it is targeted at high-risk or frequent offenders. The difficulty is that its effectiveness is completely dependent on the ability to predict future criminal careers. The high likelihood of inaccurate predictions and their human and monetary costs suggest that selective incapacitation should be pursued in only the most extreme cases of public danger. That is, it should be applied only to those offenders who pose a real danger to the public or to certain persons. This means the policy would be restricted to a relatively small number of offenders, and this of itself would be a means of minimising the potential harm of wrongful confinement. The dilemma here is that serious violent offences are among the hardest to predict.
  14. Rehabilitative sentencing aims to reduce future crime by changing the behaviour, attitudes, or skills of the offender. Sentencing options are assessed on the likelihood of re-socialising the offender so that he or she is less inclined to commit crimes, or to provide the offender with the skills to combat these inclinations. The logic of this approach may lead to indeterminate or semi-indeterminate sentencing. Further issues arise in respect of offenders who do not perceivably need rehabilitation, or for whom no known programme is available.
  15. A rehabilitative basis for sentencing would require judges to have a range of information about the offender’s needs in every case, and about the programmes which are available to address them, including information on their success rates. The existence of a sufficiently wide range of programmes able to meet the needs of all offenders is unlikely given existing knowledge and the variety of offending-related needs likely to confront the sentencer.
  16. The evidence is sound for provision of rehabilitative programmes remaining a legitimate aim of the corrections system irrespective of whether it is a component of the sentencing decision. Indeed, there are good arguments for seeking to use prison time productively by encouraging inmate involvement in programmes. This evidence also supports the rehabilitative focus of the current sentences of community programme and supervision.
  17. Restitution places the victim and what the victim has suffered at the centre of the sentencing process rather than the offender. Insofar as restitution has a focus on the individual offender it is in respect of his or her acceptance of responsibility, expression of remorse, and willingness and ability to make recompense for the harm done. The primary interest is in acknowledging, and putting right the harm done by the offence, although rehabilitation of the offender may be a secondary effect through the process of forcing the offender to face up to the consequences of his or her offending.
  18. In the New Zealand adult criminal justice system restitution is mainly achieved through the sentence of reparation. The lack of resources of many offenders and/or their apparent unwillingness to pay in many cases place limitations on the use and success of this sentence. Further limitations are the potential incompatibility of restitution with the other rationales, especially when they call for a more severe sentence, particularly a custodial sentence. The principle of equality before the law makes it important that monetary restitution does not provide a means for wealthier offenders to buy their way out of other sentences. For reasons of fairness and the practical needs of enforcement, the amount of monetary restitution imposed should be at a level which is reasonable to the offender’s means and the offence seriousness.
  19. Beyond the sentence of reparation, the restitutional aims of the sentencing system may also be addressed in the context of restorative justice.
  20. The question arises as to whether it is possible to have a coherent sentencing structure which encompasses all of these rationales and goals; whether one goal or rationale alone should be pursued; or a hierarchy of rationales and goals created, perhaps involving specified circumstances under which one or other should have precedence over the others.
  21. The empirical difficulties of deterrence, incapacitation, and rehabilitative sentencing, and the implications of ‘getting it wrong’, suggest that these goals do not have strong merit as overall guiding principles of a sentencing system. The existence of some very dangerous offenders does, however, suggest that the sentencing system would be failing in its duty to contribute to public protection if it were to abandon the possibility of an incapacitative goal in specified circumstances. Similarly, the growing body of evidence that some rehabilitative interventions can work with some offenders and the humanising effect that rehabilitative programmes may have within the administration of sentences suggest that rehabilitation is not a goal to be abandoned.
  22. The declaration of just deserts as the primary rationale would confirm the existing practice of the courts to a large extent. Just deserts does not claim to do anything more than maintain a general level of respect for the law and punish on a proportionate and unbiased basis. Many people may believe that this is too restricted and negative to be the objective of the entire sentencing system. One possibility is to use just deserts as a framework within which other objectives may be pursued. For instance, the desert scale would determine the appropriate level of penalty, but some elements of the totality of the sentence could be met through either monetary or non-monetary restitution as negotiated with the victim. Where a prison sentence is merited on the desert scale, rehabilitation could be pursued as part of the administration of the sentence. Where desert indicates that a community-based sentence is required, the offender’s rehabilitative needs and prospects could be a basis for choosing between similarly restrictive options. Such a system would probably require that the secondary goals (rehabilitation and restitution) be ranked in order that conflicts between them can be resolved. In the interests of public safety, the desert regime would need to allow for incapacitative exceptions for offenders assessed as likely to pose an extreme danger to specific individuals or the public in general.
  23. The main guiding principles of sentencing, which will apply irrespective of whatever sentencing goals are selected, are usually considered to be:

Some commentators put forward justice and humanity as additional important principles.

  1. Interpreted strictly, these principles have a tendency to conflict with one another and, in the case of restraint, with other policies concerning the disposition of serious offenders. The application of these principles, with the exception to some extent of restraint, is not spelt out in legislation in New Zealand. At issue is whether there should be legislative or regulatory guidance as to how these principles should be applied and in what circumstances will some increase in importance at the expense of others.
  2. Sentencing decisions typically include the weighing up of aggravating and mitigating factors, insofar as they exist, in order to individualise the sentence with respect to the offender and the circumstances of the offence(s). Aggravating factors are those which may increase the sentence, while mitigating factors may have the opposite effect. The courts have generally been left a broad discretion to deal with aggravating and mitigating factors.
  3. Sentencing guidance needs to be clear as to what can be considered mitigating and aggravating factors and how they can be applied consistently.
  4. Repeated offending presents a particular set of theoretical and practical difficulties to sentencers and sentencing policy makers. Some of these difficulties arise from the various types and causes of recidivism. Sentencing guidance needs to be clear about how previous offending, or the lack of it, should influence the level of sentence. Neither deterrence nor incapacitation provide a sound rationale for cumulative sentencing of offenders purely on the basis of persistence. Previous offending may, however, increase the culpability and harmfulness of the offending and thus act as an aggravating factor to increase the sentence.
  5. In order to protect the public from offenders who may constitute a long-term threat of a particularly serious nature, longer than normal incapacitation is sometimes justified. This is normally achieved through imprisonment and may take the form of longer finite sentences than would otherwise be justified, or indeterminate sentences, of which preventive detention is an example. This suggests that the definition of sentencing rationales or purposes must allow for protective sentencing (incapacitation) in some circumstances.
  6. Sentences for several offences being heard at the one time can be either cumulative or concurrent. New Zealand has virtually no statutory guidance on the application of these options. Concurrent sentences are usually imposed when the offences at issue are deemed to be part of a single transaction, especially if constituting invasion of the same legally protected interest. The totality principle is used by the courts to ensure that aggregate sentences for a number of offences do not become disproportionate to sentences for more serious offences, nor a crushing burden on the offender. The total sentence may be reduced accordingly.
  7. Aside from when an offender makes an offer of compensation to the victim or the victim’s views on the amount of reparation are sought, victims of crime in New Zealand do not have any direct say in the sentencing of offenders. The effect of a crime on the victim is, however, made known to the sentencing judge by means of a victim impact statement and this will clearly be one of the factors to take into account when a sentence is determined.
  8. There are arguments relating to community responsiveness, hearing both sides of a case, and victim satisfaction, in favour of the courts including victims’ views in their determination of offenders’ sentences, although other philosophical, ethical, and practical arguments can be made against such inclusion. A number of states in the United States permit victims to have a direct say as to what sentence the offender should receive. Only a small percentage of victims who have this right choose to exercise it. There has not been an increase in the severity of sentences where victims have had a say.
  9. Mäori are significantly over-represented in the corrections population. Although the sentencing system may not be the primary cause of this over-representation, nor the best place to address it, the sentencing system, nevertheless, should not exacerbate any inequities and preferably should have a remedial influence.
  10. There are considerable differences between traditional Mäori and European views of crime and how to respond to it, especially in terms of intentionality, individual versus group responsibilities, and the Mäori emphasis on maintenance of social relationships and negotiation between victim and offender groups to determine appropriate responses. This means that, despite some provisions in the Criminal Justice Act which provide for a Mäori perspective, there are fundamental differences between court-based prosecution and sentencing and Mäori concepts.
  11. Means by which sentencing guidance, other than that provided by appellate judges, can be provided to the courts include:

All except the last of these impose greater constraint on judicial discretion.

  1. Any guidance systems which result in greater sentencing certainty through the reduction of judicial discretion are likely to increase prosecution and parole authorities’ influence on sentence length in the absence of accompanying guidance in these areas. Presumptive systems will ensure consistency and individual fairness to a greater or lesser degree depending on the policy on departures from the presumptions and any requirement to give (appealable) reasons for departures.
  2. Appellate review is necessary to complement all systems except mandatory sentences as a means to further elucidate the principles, policies, and presumptions, and as a means of providing further guidance to the lower courts. For instance, appellate review could develop, and define the criteria for, reasons for departure from presumptions.
  3. Guidance systems must be accompanied by provisions for monitoring and amendment, and by information systems for judges to ensure that the intended results are achieved and help facilitate this.
  4. In sentencing there is a balance to be struck between the roles of the executive, parliament, and the judiciary. This balance must include consideration of wider policy issues such as the extent to which imprisonment should be used and the desirability of greater public understanding of the sentencing process, as well as the need to be able to take into account factors which affect the seriousness of individual offences.
  5. Although parliament could conceivably set mandatory penalties for all offences this is unlikely to deliver fair and equitable sentences responsive to the individual circumstances of cases. If there is to be more explicit guidance than the provision of maximum penalties, then the questions become what should be the respective roles of parliament, the executive, and the judiciary, and should there be a separate specialised body with a mandate to develop guidelines.
  6. Judicially-developed guidance is likely to lead to consistency in some areas, particularly with more serious offences, as well as being accepted by the judiciary and insulated from political pressures. It is unlikely, however, to provide guidance on the sentencing of the broad range of everyday offences. Nor is it particularly suited to the provision of consistent overall sentencing policies and principles.
  7. Sentencing commissions can take the form of temporary bodies like commissions of inquiry with a mandate to make recommendations on the determination of sentencing policy and principles, or ongoing bodies with a mandate to establish guidelines and continue to monitor, evaluate, and make modifications when necessary to those guidelines. Sentencing commissions are not always free from political pressures and their task is a difficult one which may be made more difficult by differing ideologies of commission members. It has not been conclusively determined whether sentencing commissions in the United States have brought about greater genuine offence-based sentencing consistency than was the case with more unfettered judicial discretion.

Issues

Chapter Three: The Rationales and Goals of Sentencing

(a) What should the sentencing system as a whole aim to do? The rationales of deterrence, incapacitation, and rehabilitation pursue crime reduction goals through sentencing. Restitution is primarily aimed at making redress to victims of crime. Just deserts (retribution and denunciation) on the other hand is a rationale for the imposition of a sentence appropriate to the wrongdoing.

(b) What should be the basis of individual sentencing decisions?

(c) Should there be a single overriding or leading rationale as the basis of sentencing?

(d) Should more than one or all of the current rationales and goals of sentencing be retained?

(e) Is it desirable/possible to create a guidance structure which indicates the order of priority of the rationales and goals? What would that hierarchy be?

(f) Should some of the rationales and goals be restricted to certain circumstances?

Chapter Four: Other Sentencing Principles

(a) Should the principle of restraint be used to reduce or limit overall sentencing levels; or exercised in respect of individual sentencing decisions; or both?

(b) Should the principle of restraint be legislatively defined with respect to all types of sentence rather than, as is currently the case, only with reference to imprisonment?

(c) Should there be a guideline statement of principle that sentencing decisions should not take account of colour, race, ethnic or national origins, sex, marital status, or religious or ethical belief? Are there other offender characteristics which should be excluded from sentencing consideration, e.g. employment status?

(d) Should departure from the principle of equal treatment before the law be limited to the application of monetary sentences, where it is required for practical reasons, and other instances where it is necessary to alleviate the extreme hardship which a normal sentence would cause a particular offender? Are there other circumstances where such departures are justified?

(e) To what extent should the costs of sentence administration play a part in the considerations of those formulating sentencing guidelines?

Chapter Five: Aggravating and Mitigating Factors

(a) To what extent should offender characteristics, collateral consequences, and post offence conduct be included as aggravating or mitigating factors?

(b) To what extent should aggravating and mitigating factors be linked or limited to the declared rationale(s) of sentencing?

(c) To what extent can or should the factors be specified in legislation or other formal guidelines?

(d) To what extent should there be legislative or other formal principles of guidance as to how the factors should be used, and should reasons be required when they are used?

Chapter Six: Sentencing of Persistent Offenders

(a) Should the seriousness of the current offence always provide the upper limit for the current sentence, or can circumstances be defined when previous offending may take the sentence beyond this because it indicates a particular pattern of behaviour for which incapacitative sentencing is desirable, e.g. professional offending, hate crimes, stalking?

(b) Should there be mitigation of sentence and a presumption against imprisonment for first-time offenders, except when the offending is seriously harmful?

(c) In what circumstances should significant convictions-free periods negate or reduce the effect of previous convictions?

(d) Should previous similar offences be given more weight than previous dissimilar ones?

(e) Should previous serious offences be given more weight than previous minor ones?

Chapter Seven: Sentencing ‘Dangerous’ Offenders

(a) What type of probable future offending should qualify for protective sentences, and why? A starting point is the definition of dangerous offenders as individuals assessed as posing a substantial risk of grave harm to the public or specific individuals, where ‘grave harm’ constitutes death, serious personal injury, and sexual assault, and where the infliction of the harm is unlikely to be accidental.

(b) What specifically should be the eligible offences and offending patterns?

(c) Is protection of the public best achieved through finite sentences, longer than may be justified by the conviction offence, indeterminate sentences, or a combination of the two?

(d) Is confinement in prison necessary, or are civil confinement, home detention, or intensive supervision preferable for the purely protective element of the sentence?

(e) Should criteria for the application of protective sentences be formalised in legislation or other forms of guidance?

(f) Should psychiatric, psychological, actuarial, and other forms of reporting be required to aid the exercise of sentencing discretion?

(g) Should procedural requirements be formalised in legislation on matters such as:

Chapter Eight: Sentencing Multiple Offenders

(a) Should legislative or regulatory guidance be provided as to when cumulative and concurrent sentencing is appropriate, including guidance on the single transaction rule?

(b) Is a single total sentence a more accurate reflection of the sentencing process under the totality principle than the current practice of combinations of concurrent and cumulative sentences?

(c) Should the individual sentence applied for each offence be recorded to mark denunciation of that conduct, irrespective of whether that sentence stands, or is amended under the totality principle, or replaced by a total sentence?

(d) Should legislative or regulatory guidance be provided as to the upper limits of any combined sentence under the totality principle or a single total sentence?

Chapter Nine: The Role of Victims in Sentencing

(a) Should court processes do more to encourage victim/offender agreements as to the appropriate response to the offence(s), and if so what limits or safeguards should there be?

(b) Should victims have the chance to personally address the court on the consequences of the offence if they wish?

(c) Is guidance necessary on the relative weight to be given to the victim’s statement of the consequences of the offence as opposed to other considerations at sentencing?

(d) Would the articulation of the purposes of sentencing, the giving of reasons for decisions, and the provision of feedback on how and why the victim impact statement did or did not influence the decision increase victim satisfaction with the sentencing process?

(e) Should victims be allowed to address the court as to the appropriate sentence for the offender, or to have this included in the victim impact statement? If this occurs, what weight should be given to the victim’s view on sentence as opposed to other considerations?

Chapter Ten: A Mäori View of Sentencing

(a) Should there be further review of the issue of alternatives to imprisonment that would be culturally appropriate to Mäori offenders in an effort to address the high rate of Mäori imprisonment? This would involve looking at the appropriateness and current use of community-based sentences in respect of Mäori offenders.

(b) How should such a review take account of the important respects in which traditional Mäori concepts of justice and law differ from concepts intrinsic to the New Zealand legal system?

(c) Should victims and the offender’s whanau have a greater role in the sentencing of Mäori offenders, and if so, how could this be achieved?

Chapter Eleven: Forms of Guidance

(a) Is there a need for greater sentencing guidance than that currently provided?

(b) If so, what form is most appropriate to the New Zealand situation?

(c) If there is to be greater sentencing guidance, should there also be greater parole and prosecution guidance?

(d) How would any guidance system be implemented and monitored?

Chapter Twelve: Allocation of Responsibility for Sentencing Policy and Guidance

(a) Is the development of guidance the responsibility of the executive, subject to the scrutiny and voting of parliament (i.e. guidance in legislation)?

(b) Should the executive have legislative authority to issue sentencing directions to the judiciary?

(c) Should guidance additional to any provided in legislation and/or by the Executive be the responsibility of the judiciary, particularly through sentencing appeal decisions?

(d) Should responsibility for sentencing guidance be delegated through legislation to a representative sentencing commission, with a greater or lesser degree of direction as to the policies and principles to be pursued?

1. Sentencing, Crime, and the Criminal Justice System

Sentencing can be defined as “the judicial determination of a legal sanction to be imposed on a person found guilty of an offence” (Canadian Sentencing Commission 1987, p115). It is one of several stages which together comprise what is often referred to as the criminal justice system, although some might argue that it is an overstatement to categorise such disparate functions as a system. These stages are:

Generally speaking the branches of central government have the dominant role in most of the above, although a number of qualifications should be mentioned. Individuals retain the right to institute private prosecutions at the summary level in New Zealand; in jury trials, members of the public are the determiners of fact (albeit in a structure administered by the state); and private organisations or individuals often have an important role in the administration of certain sentences.

Under our system of government the police take principal responsibility for stages (a) and (b); the police and crown prosecutors for stage (c); the courts (particularly judicial officers) for (d) and (e); and courts, prisons, and community corrections for (f). These agencies all operate within rules which allow a significant amount of discretion to the officers involved. Increasingly, they are also purchasing contract services from non-government agencies and community groups.

It is probably unrealistic to expect alterations to any but the first stage (and possibly the second) to have a major direct impact on the level of crime in the community. This is for a number of obvious but frequently forgotten reasons. One is that the later stages are actually designed to respond to offending which has already taken place, rather than to prevent crime. That is, increasing the average sentence imposed for a given offence from two to three years imprisonment is not likely to have much impact on the overall level of crime in the community (Brody 1976, p37; Crime Prevention Action Group 1992, pp57–8;), even though changes to the law, or calls for changes to the law, are frequently made precisely on this basis.

A second reason is that the offenders sentenced by the courts will be responsible for only a small and selective proportion of the crimes actually committed in the community. Some crime will not be recognised or detected as crime; much of the crime which is detected will not be reported to the police; the police will ‘clear’ less than half of the crime reported to them (some of these ‘crimes’ will not be recorded as such by the police); a significant proportion of the cases ‘cleared’ will not be prosecuted; and a significant number of cases prosecuted will not result in a conviction.

For instance, in New Zealand a survey conducted by the Victoria University Institute of Criminology in 1989 showed that over a 12 month period just over 25 per cent of offences against individuals were reported to the police and between one third and a half of household offences were reported. These were similar findings to overseas victim surveys. A 1990/91 New Zealand Police survey found that 40 per cent of recorded crime was cleared in that year (although clearance rates differ significantly according to the types of offences), 74 per cent of those recorded crimes were prosecuted, and 75 per cent of prosecuted offences resulted in a conviction or a proven charge (Crime Prevention Action Group 1992, pp22–3).

A further point is that one of the essential functions of the criminal justice system is to affirm and reinforce important societal values. Most people will refrain from serious anti-social behaviour because they identify with those societal values – especially respect for others and for the law – not because they are afraid of the punishment for transgressing. For those prepared to commit serious anti-social acts, the likelihood of being caught and punished seems to be a more likely deterrent than modifications to the amount of punishment, insofar as criminal acts follow from a rationally thought-out decision at all. (For further discussion of deterrent sentencing see Penal Policy Review Committee 1982, Appendix IV; and section 3.2 below).

In summary, the cases on which judges pronounce sentence are dealing with only selected examples of all the behaviour that could be labelled ‘offending’, and that selection may well be unrepresentative of the whole in terms of both the nature of the offences and the characteristics of the offenders. It follows that sentencing legislation and practice, while important, together constitute only one aspect of society’s response to criminal behaviour.

This paper is primarily concerned with sentencing decisions, although it is acknowledged that sentencing does not exist in isolation from other parts of the process, especially the prosecution of offences, adjudication, and the administration of sentences. Decisions taken by the prosecution as to whether to proceed at all, what charges to lay, and in what form to lay the charges (sometimes the subject of plea bargaining) can have a profound effect upon any sentencing outcomes which may be arrived at. The particular form the adjudication takes may place important restraints upon the sentencing decisions that can be reached. The clearest example of this in the New Zealand system is the rule that if an indictable offence is tried summarily (i.e. before a judge alone rather than before a judge and jury), a penalty in excess of three years imprisonment cannot be imposed at the summary level, no matter what maximum sentence is prescribed in law. (The offender can however be committed to the High Court for sentence to escape this limitation.) Parole and early release (remission) provisions affect what a prison sentence imposed by the court actually means for an offender in terms of time served.

It has been the prevailing wisdom for some time that the types of offender and offending coming before the courts are so varied that legislation cannot be drafted with the necessary degree of particularity to specifically cover each incidence. Consequently New Zealand has broadly defined offences with maximum penalties for the most serious instances of those offences. This leaves considerable discretion to the courts to impose a sentence within the resulting range that takes into account the particular characteristics of the offence. The argument for this situation is that any attempt to legislate for a much larger number of more narrowly specified offences, each with its own maximum penalty, would lead to undue technical legal argument about the boundaries between offences, and thus increase the number of ‘not guilty’ pleas and lengthen the duration of cases. The counter argument is that without clear guidance to ensure consistency of approach by the judiciary, the exercise of discretion may be arbitrary and based on unjustifiable differences.

Traditionally, case law, with its application of the doctrine of precedent, has been seen as adequate to balance the tension between the requirement that each case be dealt with on its own merits and the need to develop a framework of rules or standards to guide the judiciary, so that sentencing decisions are not simply arbitrary but are made on a principled and consistent basis. The doctrine of precedent does not mean that decisions relating to particular sentences by appellate courts are binding authorities on lower courts in the same way that decisions on substantive law are, since sentencing decisions can be no more than examples of how a court deals with a particular offender in relation to a particular offence. Court of Appeal suggested guidelines on sentencing in respect of certain types of offenders or categories of offence assist uniformity in sentencing, but sentencers will out of necessity retain discretion as to how to apply, or even depart from, them. Nevertheless, the right of appeal in respect of sentences does assist in maintaining a degree of consistency.

Over the last two decades there has, however, been increasing international concern that, in the absence of a clear sentencing policy framework, the practice of individualised sentencing and the exercise of judicial discretion produce a system in which there is a lack of shared certainties, and confusion as to the purposes of sentencing.

In overseas jurisdictions and in New Zealand there are a range of frequently voiced opinions about the sentencing process. These come from various quarters in society and keep sentencing in the public domain. They include opinions as to the:

It is in response to these issues that many jurisdictions have undertaken major examinations of sentencing policy and guidance in recent years. There have been substantial reports on sentencing reform produced by the Canadian Sentencing Commission (1987) and the Australian Law Reform Commission (1987 and 1988), and developments such as the New South Wales Sentencing Act 1989, the Victorian Sentencing Act 1991, the England and Wales Criminal Justice Act 1991, amendments in 1988 to the Swedish Criminal Code, and various state and federal committees and commissions in the United States producing sentencing guidelines for incorporation in legislation.

2. The Current Sentencing Structure

2.1. Introduction

There are a number of rationales, goals, and principles of sentencing which provide the justifications for imposing legal sanctions, point to the desired effects of particular sentences, and provide guidance as to how to arrive at a principled determination of a sentence. (These are examined in Chapters Three and Four below.) The provision of a sentencing framework also assists with decisions as to the specific type and amount of sentence on an offence by offence basis.

There are two traditional legal sources of sentencing guidance: legislation and judicial decisions. In common with other English-styled legal systems, New Zealand’s present sentencing structure essentially leaves the construction of sentencing policy up to the judiciary, with very little assistance or guidance from parliament. In general New Zealand has followed the approach to sentencing whereby parliament makes criminal laws which specify maximum penalties (principally in terms of prison sentences and fines) and extensive discretion is conferred on the sentencing judge both in the length of sentence available, and in the choice of alternative dispositions (e.g. a suspended sentence, reparation, or a community-based sentence).

The exercise of judicial discretion in our criminal justice system is intended to ensure that each person coming before the courts is given individualised consideration. In other words, the system allows the judge to consider each case on its own merits, and to tailor the sentence to the facts of the case, taking into consideration factors such as:

While judicial decision-making in New Zealand cannot be said to be based on a completely unfettered and unprincipled discretion, judges may (legitimately) apply different principles and emphasise different factors in order to arrive at a sentence.

The respective roles of parliament and the courts will now be discussed in the context of New Zealand’s legal system, with a view to outlining, in a general way, the source and regulation of sentencing decisions in this country.[1]

2.2. Legislation

New Zealand’s parliamentary statutes provide sentencing direction in two ways. The first is by setting out maximum penalties in the same statutes which establish the offences. Maximum penalties are usually expressed in terms of finite periods of imprisonment and/or fines. The most important of these statutes is the Crimes Act 1961. Within those upper limits, the courts have discretion to impose such sentences as they see fit. The Criminal Justice Act 1985 sets out a number of other sentences and orders (discharge, deferment, reparation, suspended sentences, supervision, community service, periodic detention, and community programme) which the courts may impose as an alternative to imprisonment for any offence which is punishable by imprisonment. Two of these alternatives, community programme and community service, require the consent of the offender, as do special conditions of supervision.

The maximum penalties serve two purposes. Firstly they tell the judge how seriously society regards an offence, and what the penalty for the most extreme examples of such offences should be. By extension they also give some guidance as to what sorts of penalties might be called for in lesser cases. The second important function of the maximum penalty is to give the judge some idea of the relative seriousness of a particular offence when compared to others.

There are also a limited number of mandatory and minimum penalties such as life imprisonment for murder and treason under the Crimes Act and minimum driving licence disqualification periods for numerous driving offences under the Transport Act 1962. To be accurate, the mandatory nature of the disqualification penalties is in practically all instances not absolute, since the court still has discretion not to impose a minimum period or any period of disqualification if the court “for special reasons relating to the offence thinks fit to order otherwise”.

The other way in which parliament gives guidance to the courts is through the sentencing provisions of the Criminal Justice Act 1985, which are principally intended to stress the use of non-custodial sanctions in cases not involving violence, and the need to protect the public against violent offending. The most important of these provisions are as follows:

Other sentencing directions in the Act are that:

2.3. Judicial Decisions

Since very early on this century, it has been possible for an offender to appeal to a higher court against sentence, unless it is one fixed in law. When hearing such an appeal the court can confirm the sentence, cancel it entirely or in part, substitute any new sentence (whether more or less severe), or vary the sentence in any way it considers appropriate. Since 1966, the Crown has had the right to appeal against sentence, and the Court of Appeal the power to increase a sentence if it concludes this to be appropriate. Appellate decisions give the judiciary a general guide to sentencing practice and sentencing principles, and their application in particular cases. Appeal decisions can modify sentencing practices and act as a measure of consistency, establishing the range of sentences considered appropriate to certain offences.

In recent years, the Court of Appeal, when dealing with appeals against sentence upon conviction on indictment, has gone beyond its traditional role of scrutiny of judgments on a case by case basis. The Court has sometimes grouped several appeals in the same area for determination in the one judgment, and has adopted the practice in that judgement of reviewing earlier decisions for similar offences. These ‘guideline judgments’ have included a schedule or discussion of the penalties imposed in like cases, indicating the range of sentences considered appropriate, and an examination of the circumstances of the offences or characteristics of the offender which may aggravate or mitigate sentence. Guideline judgments have covered offences such as rape, sexual abuse, aggravated robbery, and drug cases (Hall 1991, pp222–4; 1993–97, B/27–B/28).

The practice of handing down guideline judgments implies greater consistency in sentencing practice will occur for these offences. These judgments provide quite specific direction, approaching a ‘tariff’, as to the range of sentences appropriate to some offences. Although they do not go as far as to set rigid ceilings or to indicate minimum levels, the guideline judgments indicate how the Court of Appeal will decide appeals on sentence. At the same time, the judgments preserve the discretion of judges to impose sentences different from the norm where there are unusual combinations of factors.

The guideline judgments may have had a good deal of impact on sentencing decisions with respect to rape, for example. Between 1985 and 1993 (inclusive) the average length of the terms of imprisonment imposed for rape increased by 28 per cent (Spier 1995, p63).[2] This example could, however, be disputed because it does not indicate the extent to which the range in (say) 90 per cent of cases accords with the range specified in the guideline judgments.

It is of note that the majority of day-to-day sentencing decisions for common offences or for the typical instances of an offence are unlikely to be covered by guideline judgments, and there are almost no guideline judgments on the application of non-custodial sentences. This is discussed further in Chapter Eleven in the context of the general benefits and limitations of appellate judgements as a source of sentencing guidance, as part of a general examination of where responsibility for sentencing guidance should rest.

2.4. Issues

This section discusses some of the limitations with New Zealand’s current legislative guidance as to sentencing.

2.4.1. Maximum penalties

A particular limitation of the maximum penalty structure is that the maxima are set well above the normal sentences imposed in most cases. For example, the offence of burglary carries a maximum sentence of ten years imprisonment, but over the last decade only approximately 30 per cent of burglary cases have resulted in a custodial sentence. Of that 30 per cent, only 1–2 per cent resulted in a sentence of three years or more, the average sentence being 10.9 months in 1995. A lot less than 1 per cent of that 30 per cent received a sentence of five years or more. In 60 per cent or more of the cases which resulted in a custodial sentence, the sentence was less than one year (Spier 1996, p73). One reason for this disparity is that the maximum penalties are intended to be used only for the worst possible instance of the offence. Most instances of an offence will of course fall well below that range.

As the New Zealand legal academic Geoffrey Hall has pointed out, the disparity between maximum and actual sentences is partly attributable to a change in the New Zealand criminal codes from specific and limited definitions of offences, each with its own maximum penalty, to broadly defined offences with one relatively high maximum penalty (Hall 1991, pp216–7). An example of this change is the offence of forgery in the New Zealand Crimes Act 1961, which carries a maximum penalty of ten years imprisonment. This contrasts with the thirty-three different offences of forgery in the Criminal Code Act 1893, which had four different maximum penalties: life imprisonment; fourteen years; seven years; and two years imprisonment.

The inclusion of several categories of conduct within one broadly defined offence gives rise to a wide variation in the degrees of seriousness of conduct within each offence. To deal with this range, the maximum penalty is set far in excess of what is appropriate to apply to the less serious, and more numerous, cases. This broadening of definitions of crimes has not been accompanied by the introduction of statutory statements of mitigating and aggravating features which were previously the defining characteristics of the more narrowly defined offences. The broad offence category, with high maximum penalty, approach is comparatively recent, and follows similar reforms in English law designed to reduce the amount of technical legal argument in courts about the boundaries between offences (Ashworth 1992, p39).

A second difficulty with the maximum penalty structure is that because it is very different from actual sentencing practice, it no longer serves as a good indicator of the seriousness of a particular offence compared to others. A comparison of the outcomes for aggravated assault and burglary illustrates this. The maximum sentence for aggravated assault is three years imprisonment (compared to burglary’s ten years), which would logically indicate that aggravated assault is viewed as a much less serious offence than burglary. The reality however is different. About 40 to 45 per cent of those convicted of aggravated assault in any one year will receive a custodial sentence: a much higher figure than for burglary.[3] Those who receive a custodial sentence for aggravated assault are also less likely to receive a sentence of under one year and the average sentence is only slightly below that for burglary (Spier 1996, pp65–6, 73).

This disparity between maximum penalties and judicial sentencing norms can be misleading for observers of the court process, particularly the media and the public, so that the perception develops that, at least in respect of some offences, the justice system is soft on criminals. There is no reason to expect people to understand the elaborate process that contributes to sentencing decisions, especially when it is sometimes not in open court. Judges themselves rarely make explicit reference to the normal range of sentences in like cases when handing down a sentencing decision, except in the Court of Appeal. The statutory maximum penalties are therefore of limited value as guidance to judges, offenders, victims, lawyers, or the public in general. They cannot be said to enhance the clarity and accessibility of the sentencing process.

2.4.2. Current guidance

A further limitation with the present sentence structure is that it provides a range of different sentences (monetary, community-based, and custodial), but, with few exceptions, gives little guidance as to when one is to be used in preference to another. New forms of sentence have been introduced without a clear statement from the legislature as to where within the structure of sentences the new measures are designed to fit.

It is understandable that attention should have been centred on the use of imprisonment given the historical and continuing importance of imprisonment as a sanction, the major intrusion on liberty it represents, and the high social and financial costs associated with it. It is, nevertheless, a crucial problem with the Criminal Justice Act that little direction is given about which community-based sentences should be imposed in which circumstances, and what is the relative severity of each type of sentence, or indeed what their different aims might be. This lack is all the more serious because, according to the Act, imprisonment is supposed to be the sentence of last resort, and indeed most cases result in a non-custodial sentence. For instance, if a person is convicted of a minor theft, the Act does not give any guidance as to whether they should be sentenced to reparation only, reparation and twenty-four hours community service, or reparation and six months periodic detention. Except in directing that reparation shall be imposed in all appropriate cases (s11), the statutory framework provides no direction, yet there is a tremendous difference to the offender and to society, between a sentence of twenty-four hours community service and six months periodic detention.

A third limitation is that the central directions in the Act are essentially confined to whether a custodial sentence should be imposed or not. They have little to say about how long a custodial sentence should be, except for the rather vague statement that it should be “as short as is .... consonant with promoting the safety of the community” (s7(2)).

The provisions in the Criminal Justice Act that are intended to assist the judiciary in deciding if imprisonment is appropriate in particular cases and what the term of imprisonment should be in any particular case, are severely limited as a source of guidance in sentencing. The overriding difficulty is that the ‘guidelines’ or ‘directions’ contained in the Act are simply too vague to have more than limited value in this regard. As one commentator has put it:

A dearth of legislative guidance is tantamount to the legislature relinquishing to the judiciary its policy-making functions as regards sentencing .... The Criminal Justice Act 1985 and its amendments may be viewed, however, as tentative evidence of the legislature attempting to reassume its role. Unfortunately, the statutory language is often expressed in such general terms that it does not place any substantial fetter upon the sentencing discretion.
(Hall 1993–97, B/7, emphasis added)

2.4.3. Different Acts

A further problem with New Zealand’s sentencing structure is that the provisions of the Criminal Justice Act 1985 and the Crimes Act 1961 are in certain important ways implicitly inconsistent. In the first place, the sentences in the Crimes Act are set out as if imprisonment were the natural sentence which should be imposed for each of the offences. This conflicts with the presumption that for most offences imprisonment should only be used as a last resort. It could be argued that the Crimes Act should make this apparent.

A second point is that the penalty structure in the Crimes Act (fairly high maximum sentences, albeit with the expectation that most actual sentences will be at a lesser level) seems in conflict with the idea of restraint which is given statutory recognition in the Criminal Justice Act, in s7(2):

Where the court considers that it should impose a sentence of imprisonment, the term of the sentence shall be as short as is, in the opinion of the court, consonant with promoting the safety of the community.

A third inconsistency arises when sections 5, 6, and 7 of the Criminal Justice Act are compared with the maximum penalty structure set out in the Crimes Act. As discussed in 2.4.1, the maximum penalty structure supposedly plays two related functions: it tells the judge how seriously society regards the offence, and therefore gives some guidance as to what sorts of sentences might be called for in lesser cases; and it gives the judge some idea of the relative seriousness of a particular offence when compared to others. Under this scheme a maximum sentence of seven or ten years indicates that an offence is much more serious than an offence with a three year maximum. This seems clear enough in principle, even if, as was noted earlier, the relationship to reality is somewhat more problematic.

The Criminal Justice Act, on the other hand, contains the following general directions:

Clearly an offence which carries a strong presumption of imprisonment (a violent offence) is regarded by parliament as more serious than one which carries a strong presumption (s6), or at least a presumption, against imprisonment (s7).

The result is that the Criminal Justice Act treats a range of violent offences which have maximum custodial sentences of two to seven years (when certain aggravating circumstances are present) as more serious than property offences with maximum sentences of more than seven years. This is not the way the Crimes Act treats them. Or more glaringly, violent offences with maximum sentences of between two and five years are, according to the Criminal Justice Act, more serious than property offences with maximum sentences of five to seven years (where there is a strong presumption against imprisonment (s6)).

Again, a comparison of the offence of aggravated assault with that of burglary is instructive. Aggravated assault has a maximum penalty of three years. Burglary has a maximum of ten. This would indicate burglary is much more serious than aggravated assault. An offender who commits an aggravated assault will fall under s5 of the Criminal Justice Act 1985 if the violence used or danger caused is considered serious. An offender convicted of burglary is unlikely to. This indicates aggravated assault is more serious than burglary. The contradiction is even more obvious with the comparison of aggravated assault and theft, another common offence. Theft carries a maximum of seven years imprisonment, and is therefore (unlike burglary) covered by s6 of the Criminal Justice Act with its presumption against imprisonment. As was noted in 2.4.1, the pattern of sentencing seems to be more in conformity with the framework of the Criminal Justice Act, although this is misleading since this pattern actually preceded the Act (see Hall 1993–97, B/7 and D/73ff).

2.5. Conclusion

When the Criminal Justice Act was introduced in 1985 the assumption, and the intention, was that future use of imprisonment would be curtailed through the sentencing directions which indicated that imprisonment is the sentence of last resort, and through the availability of a wider range of community-based sentences and reparation orders. Contrary to these expectations, since approximately 1987 there has been a marked, indeed extraordinary, increase in the number of people undergoing a prison or a community-based sentence at any one time. The leap in the average daily prison population has received most public attention, and this is understandable given the high social and economic costs of keeping a person in prison. But the increase in the numbers undergoing a community-based sentence at any one time is also of concern. The number of people sentenced to periodic detention (which seems to be regarded as the most severe non-custodial sentence) increased by 76 per cent, and the number sentenced to community service increased four-and-a-half-fold, in the period 1986–95 (Spier 1996, pp 50, 91). At least part of the explanation lies in the fact that the Criminal Justice Act itself was contradictory. Its directions that the use of imprisonment should be limited were essentially targeted at property offences and qualified by maintaining or even increasing imprisonment for violent and sexual offending and increasing the length of prison sentences for the latter.

While the causes of this growth in the corrections population are multi-faceted and not easily isolated (and may include changes in offending trends), the fact that sentencing patterns did not develop in the ways anticipated by the drafters of the Criminal Justice Act suggests that there is cause to re-examine the sentencing guidance contained in that Act, and in other legislation, case law, and practice. The need for such a re-examination is further suggested by the inconsistencies in the legislative guidance given by the Crimes Act and the Criminal Justice Act as outlined in 2.4 above. In addition, there have been a number of changes to the Criminal Justice Act since its inception in 1985, particularly with regard to serious violent offenders, while the Crimes Act has also been subject to numerous additions and alterations and, as discussed above, the maximum penalty levels, in at least some cases, seem out of step with current sentencing practice and possibly also society’s views.

Before any such attention to maximum penalties and sentencing guidance is contemplated, it is necessary to first examine the policies and principles which should underlie any sentencing system, as well as the various means by which these may be given effect. Such examination is the purpose of the remainder of this paper.

2.6. Summary

  1. In New Zealand, guidance as to sentencing is provided by legislation and judicial rulings. Legislation sets out maximum (and some mandatory) penalties and some general guiding principles. The most important of the judicial rulings are those which emanate from the Court of Appeal.
  2. Current statutory maximum sentences and legislative guidance do not reflect a consistent rationale. Maximum sentences do not accord with the relative seriousness of offences indicated by judicial sentencing practices and by the sentencing principles in the Criminal Justice Act. Legislative sentencing guidance is not particularly specific, especially for sentences other than imprisonment.
  3. Court of Appeal guideline judgments have indicated the range of penalties appropriate in respect of some categories of offences, which still leaves judges the discretion to impose different penalties where there are unusual circumstances. Furthermore, Court of Appeal guideline judgments may be viewed as an ad hoc and incremental approach to sentencing policy and they do not cover the full range of sanctions or offences.
  4. The inconsistencies and lack of specificity in legislative sentencing guidance, the incomplete nature of appellate guidance, and the substantial growth in the corrections population contrary to the expectations of the Criminal Justice Act, all suggest a need for a re-examination of the sentencing structure, beginning with discussion of policies, principles, and means, as examined in the remainder of this paper.

3. The Rationales and Goals of Sentencing

There are some often cited rationales and goals for sentencing, namely: just deserts which in this chapter will cover both retribution and denunciation; deterrence; incapacitation; rehabilitation; and restitution.

Just deserts stands out from the others because it is a rationale for the imposition of sentences and the amount of sentence according to the offence itself and nothing else (particularly not future offending). Where retribution differs from denunciation is that the former is totally offender orientated and non-utilitarian and does not seek a wider social goal through sentencing, while denunciation acts principally for the benefit of the general population by publicly reinforcing the boundaries between acceptable and unacceptable behaviour. Denunciation is often linked to retribution because effective denunciation needs to be able to reflect different degrees of offence seriousness (see Young 1982). Deterrence, incapacitation, and rehabilitation on the other hand pursue crime reduction goals through sentencing. Restitution is primarily aimed at making redress to victims of crime. These systems justify sentencing on the basis of the end goals it is supposed to achieve, and thus they are often labelled as utilitarian. Just deserts simply provides a justification for sentencing on the premise that wrongdoing deserves punishment in proportion to the wrongdoing.

These rationales and goals are discussed in this chapter. The discussion focuses on the insight that theories of sentencing can provide on how society can best be served by its sentencing system, and what it can realistically expect that system to achieve. It also raises issues as to the extent that sentencing decisions should be guided by one or other, or some combination of, these theories.

3.1. Just Deserts (Retribution and Denunciation) and Proportionality

Under a desert-based model the sentence is a punishment for wrongdoing. As such the focus is on the individual offender. Punishment is for the guilty only, and only for the offence(s) for which guilt is established. Just deserts sentencing does not attempt to predict or prevent future offending by the individual or other members of society.

The harm done by the offence is replied to by the state’s imposition of some form of pain and deprivation on the offender. In New Zealand this involves some form of restriction on liberty (with imprisonment as the most extreme form) or a financial penalty, rather than the infliction of physical pain (e.g. corporal punishment).

The ‘just deserts’ approach can cover both a retributive element in that the sentence is deserved by virtue of the wrongdoing, and a denunciatory one whereby sentence is deserved because the wrongdoing must be publicly condemned. Proportionality is observed in both cases through the requirement that the sentence be just.

3.1.1. Why punish?

Just deserts is founded on the belief in punishment, so the first question to be addressed is how this punishment philosophy can be justified. There are two main justifications: punishment as a means of restoring the balance or moral equilibrium disturbed by the offence (retribution); and punishment as public censure (denunciation).

Punishment may be seen in terms of a symbolic restoration of the balance which was upset by the offence. This is sometimes explained in terms of a forfeiture of rights (Lacey 1988, p22). Through the act of committing an offence an offender violates his or her obligation to the state and its citizens to obey society’s norms and the state is justified in depriving the offender of civil rights so that they do not obtain an unfair advantage over those who are law-abiding or cause the latter to be disadvantaged. A second explanation is one in terms of benefits and burdens. It is argued that everyone receives benefit from a law-abiding society, so long as they accept the burden of self restraint required to remain within the law. When someone breaks the law, they impose on others and get an unfair advantage; an extra benefit which is not available to law-abiding citizens. Punishment is designed to offset the unjustly obtained benefit and restore that balance or moral equilibrium. For this reason, the amount of punishment should be proportionate to the benefit unlawfully gained. Both these versions of desert theory exist within the social contract tradition in political philosophy, involving reciprocal political obligations of the state and its citizens.

Neither of the above justifications give a clear indication of the actual punishment appropriate in particular cases. What set of rights should be forfeited for violating certain norms through assault or burglary, for example? What punishment will remove an unfair advantage gained through an offence? A problem inherent in the latter question is that it is not always clear that an offender has actually gained an advantage. For property crimes the material benefit will be fairly obvious. This is not so clearly the case for many violent crimes and other offences such as vandalism and destruction. Any benefit to the offender is likely to be momentary: an opportunity to vent anger or frustration or exert power. Nevertheless, in a pattern of offending, such as domestic abuse, the offender can be seen to gain longer-term illicit benefits in terms of power and authority over others. It may, however, be straining credibility to argue that those who do not commit crimes really perceive this as a significant burden.

The other main theory sees punishment as censure, denunciation, or an expression of society’s disapproval of the particular conduct associated with the offence. Denunciation’s primary target is not the offender but the general population. Punishment is seen as positively reinforcing people’s inhibitions against offending by encouraging respect for, and compliance with, the law and reaffirming the seriousness of society’s rules. Through the sentence the offender will be made aware of society’s attitude to his or her conduct. This is the view favoured by a number of Scandinavian theorists, and is similar to Hall’s description of denunciation as emphasising:


that the criminal law is an educative and a cohesive force in the community, and, through the public nature of punishment of crime, an important symbolic statement as to the extent of society’s indignation and condemnation of certain conduct is thereby expressed.
(Hall 1993–97, B/64)

The English Court of Criminal Appeal has stated that the sentencing function of the courts is the means by which society “shows[s] its abhorrence of particular types of crime” (Court of Criminal Appeal, England, (R v Sargeant (1974) 60 Cr App R 74, 77 per Lawton CJ).

American academic Andrew von Hirsch argues that censure is additionally justified as general crime prevention. The expressive function of sentencing reminds people of the negative consequences of offending, thereby “keeping predatory behaviour within tolerable limits” (von Hirsch 1992(a), p74). The New Zealand courts have advocated proportionate sentencing as part of general crime prevention. The Court of Appeal has stated that:


If a Court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences.
(R v Radich [1954] NZLR 86,87 (CA))

These views of general crime prevention through punishment reinforcing society’s norms are to be distinguished from views that would make deterrence (people fearing the consequences of offending) the primary justification for the imposition and amount of sentence, as discussed below in section 3.2.

Von Hirsch sees censure and disapproval as inherent in the imposition of sentence, and maintains that censure also provides a useful means of measuring the appropriate amount of punishment. He argues that:


If punishment is seen as an expression of blame for reprehensible conduct then the quantum of punishment should depend on how reprehensible the conduct is.
(Von Hirsch 1992(a), p68)

In New Zealand, the courts have emphasised the notion of sentencing as censure, particularly in cases of sexual offending, and in cases of violence against children. In one rape case, (R v Puru [1984] 1 NZLR 254) the Court of Appeal stated (per Woodhouse P) that “Society is entitled to exact a severe penalty from the offender so as to mark its condemnation of his conduct.” In an incest case, Grieg J referred to “the community’s abhorrence of incest”, and stated that the offender should be imprisoned “for a period which marks the community’s view” (Y v Police (High Court Timaru AP62/91, 9 Oct 1991) 14 TCL 42/9).

3.1.2. How much punishment?

If punishment is to restore the balance of benefits and burdens, just deserts dictates that it should be proportionate to the disruption caused by the offence. If it is an expression of blame for reprehensible conduct it should be proportionate to the reprehensiveness of the conduct. The guiding principle that the severity of the punishment should be in proportion to the gravity of the crime implies a hierarchy of offences and sentences, and that like offences should attract like sentences.

The proportionality principle has wide currency in the community. It appeals to common-sense notions of equity which are also evident with regard to sanctions which exist outside the criminal justice system. Few would feel comfortable with the employee who is ten minutes late being fired, while another who consistently abuses sick leave provisions is simply given an oral warning.

Support for proportionality was evident in a 1994 public opinion survey commissioned by the Department of Justice. Participants expressed concern at perceived inconsistency in sentencing for similar offences, and that sentences awarded did not seem to match the public’s view of the hierarchy of offence seriousness. This was particularly expressed with respect to the relative sentencing of burglary and white collar crime, where a common perception was that the sentences for the former were greater than for the latter, despite white collar crime involving far greater monetary amounts.

Advocates of just deserts stress its value as a constraint on punishment, because it allows punishment only of the guilty and only in proportion to the seriousness of the offence(s) committed. This notion of a rational, justice-based restraint on punitive impulses has been stressed by the New Zealand Court of Appeal. In R v Puru [1984] NZCA 13; [1984] 1 NZLR 248, 250, Woodhouse P stated that:


[The] judicial obligation is to ensure that the punishment [the courts] impose in the name of the community is itself a civilised reaction, determined not on impulse or emotion but in terms of justice and deliberations.

Similarly in R v Hiha [1987] NZCA 301; 1987 2 NZLR 119,12, the Court reduced a sentence for rape and sodomy with the observation that it “is incumbent on the Courts to resist the temptation of being led by indignation to inflate punishments unnecessarily beyond an already condign and severe level.”

The rights-respecting focus of just deserts means that the offender is treated as an autonomous individual. The offender’s culpability, and harm done or risked, are the determining factors in the sentencing decision. This contrasts with the utilitarian goals of sentencing, under which the sentence is determined by what is necessary to achieve a greater social good. This lessens the focus on the offender’s rights and, in the case of general deterrence at least, the offender becomes part of the means to a greater social good.

3.1.3. How is the sentencing scale set?

The real implications of a desert philosophy will of course depend on how the penalty structure is set. This is a subjective process, and one society’s view of desert may vary considerably from another’s, as will one person’s from another’s, when it comes to establishing the scale. So how does a society decide on the level of sentence proportionate to the offence?

Von Hirsch (1992 (a)) attempts to answer this question by distinguishing between ordinal proportionality and cardinal proportionality. Ordinal proportionality concerns the way offences are ranked in relation to each other, moving from the least serious to the most serious. Parity requires that offences of equal seriousness are ranked equally. The seriousness of offences is determined by the harm done or risked, and the culpability of the offender: factors of intent, motive, and circumstance which determine the extent to which the offender should be held accountable for the act. (This is presumably for a typical instance of the offence, which points to a problem with this approach, namely that it is difficult to know what a ‘typical instance’ is, particularly if the culpability of the offender is to be taken into account.)

Von Hirsch concedes that such offence ranking exercises are time-consuming, but the experience of sentencing commissions which have established detailed offence and penalty rankings shows that it is not impossible. This does not acknowledge that sentencing commissions have made little or no attempt to take into account typical levels of culpability when ranking offences. Culpability is rather a separate issue for the courts to take into account in deciding whether or not to depart from the guidelines.

In New Zealand a general ranking of penalties and offences already exists in the form of the maximum penalty structure of the Crimes Act, although this may be out of kilter in some respects because of the ad hoc way in which it has been changed over time. It is also a ranking in respect of the worst possible instance of each offence and many offences are very broadly defined.

Cardinal proportionality concerns the upper and lower anchoring points for each rank of the offence seriousness scale. These set the limits on the severity or leniency of the sanctions appropriate to each offence seriousness rank. Von Hirsch concedes that in this aspect, desert can only act as a limiting principle on the upper and lower limits of the sentencing scale which will already be fairly well established by political considerations and conventions.

In contrast to von Hirsch, Norval Morris argues that just deserts is a limiting principle for sentencing rather than a defining principle. Morris argues this on the basis that there is no unique answer to the deserved amount of punishment, but there is a strong intuitive understanding of what amount of punishment is undeserved. Just deserts enables determination of the appropriate maximum and minimum levels of sentence for an offence, but within that range there is room for variation to achieve other goals. The ‘fine tuning’ within the range should, in Morris’s view, be done on the basis of utilitarian goals. For instance, deterrence could be pursued by imposing a sentence close to the maximum. Morris acknowledges that this does not equate with the principle of equality of sentence for like offences which desert theory stresses, but argues that equality can be no more than a guiding principle in a system which operates with so much inequality elsewhere, for instance in the prosecution decision (see von Hirsch and Ashworth 1992, pp201–6).

3.1.4. Just deserts and sentence severity

Criticism of just deserts is often based on its apparent association with escalation of sentencing levels. The penalty scale and its upper and lower limits will of course determine the severity or otherwise of a desert-based system. This is largely a matter of politics and conventions. In Finland the desert approach led to a scaling down of sentences, and there was a significant reduction in the prison population in the next decade and-a-half (von Hirsch 1990, p409). In Sweden the code was designed to be neutral in its impact on imprisonment levels, and in Minnesota, Washington, and Oregon the subsequent increases in imprisonment levels were lower than the increases in other states. In California, on the other hand, sentence levels were set by the legislature in a highly politicised manner, with a resultant increase in severity and imprisonment levels.

Proponents of just deserts argue that it actually provides a counter to pressures to increase sentences by its insistence on proportionality. Ad hoc changes to sentencing levels would disrupt proportionality, so any change necessitates a change in all sentencing levels. Unlike deterrence or incapacitation, just deserts sentencing is not designed to reduce future crime. This means it cannot be seen as failing and requiring a ratchetting up of sentencing levels if crime does not reduce.

3.1.5. Just deserts and social inequalities

Just deserts is one means of pursuing fairness and equality before the law by requiring like offences to be treated in like manner. A key objection to this is that it ignores differences between offenders which are often related to social inequalities.

Von Hirsch responds to this argument by querying whether social disadvantage can be held to diminish harmfulness and blameworthiness. Blameworthiness still attaches to acts against those who are not responsible for the offender’s social disadvantage, and much crime is committed against victims who share the offenders’ social disadvantage. Most crucially, social disadvantage does not reduce the harm done by the offence (von Hirsch 1990, p408).

Just deserts often draws negative reactions for its punitive approach and seemingly uncaring attitude to the causes of crime. This raises the question of how well suited sentencing is to address wider social issues and crime levels as a whole. Any major role in this respect seems ambitious in view of the fact that the sentencing system deals with a relatively small proportion of offenders (see Chapter One). In addition, social inequality afflicts many who do not come in contact with the sentencing system, so it is difficult to foresee how sentencing can address this issue at the general level. This is the province of wider social policy measures, not of a system set up to respond to crime following prosecution.

In striving for fairness in sentencing, just deserts can be seen as ensuring that socially disadvantaged offenders are not further disadvantaged in sentencing. This is particularly due to the exclusion in pure desert-based sentencing of offender status factors such as race and employment, on the basis that they are not material to culpability.

The traditional way in which the criminal justice system has addressed social disadvantage at the level of individual offenders is through rehabilitative programmes, and these are not incompatible with just deserts. The length and type of sentence can be set on a desert basis and within that sentence it is possible, and indeed desirable, to provide programmes designed to address the offending-related needs of the individual in an effort to minimise further offending. Similarly, with respect to community-based sentences of equal desert value, a choice could be made as to which particular one would be best suited to the offender’s rehabilitative needs (von Hirsch and Ashworth 1992, p185). (See 3.4 for further discussion of rehabilitation and 3.6 for discussion of possible combinations of sentencing rationales.)

The just deserts focus on equal sentencing is said to ignore the fact that the same amount and type of sanction will not necessarily have the same impact on different offenders. It would, however, be an immense task to adapt sentencing to each person’s individual sensibilities, and a concept of the general person is usually adopted when setting sentencing levels. (See 4.4 for a discussion of the principle of equality of impact.)

3.1.6. The use of just deserts in overseas jurisdictions

The just deserts philosophy of sentencing has gained increasing currency in recent decades, especially with the loss of faith in utilitarian goals of sentencing through the apparent failure of policies based on these goals, rehabilitation in particular. Pure desert theory requires offence seriousness and offender culpability to be the only influences on sentencing in every case, but it is not often applied in this pure form. Desert is frequently the main guiding principle in setting sentences, but it may be over-ridden in particular instances by other concerns such as incapacitation, and certain mitigating and aggravating features may also operate to increase or decrease the sentence.

Just deserts is the basis of the sentencing codes of Finland and Sweden. Article 6 of the 1976 Finnish Penal Code states that “punishment shall be measured so that it is in just proportion to the damage and the danger caused by the offence and to the guilt of the offender manifested in the offence”. The 1989 Swedish Criminal Code, Chapter 29, has a similar statement of desert as the primary determinant of sentence. The key factors are “the harm, offence or risk which the conduct involved, what the accused realised or should have realised about it, and the intentions and motives of the accused” (Ashworth 1992, p83). A key exception is the provision for deterrent sentencing of serious drink drivers.

The German criminal law has an overriding desert philosophy. The amount of punishment must be proportionate to the offender’s culpability and the seriousness of the offence. Rehabilitation and deterrence may be pursued within the narrow sentence ranges determined by proportionality (Albrecht 1995, pp6–7). The desert rationale has also been used in the production of highly structured sentencing guidelines. The Minnesota Sentencing Commission chose a modified desert rationale for their sentencing guidelines, with primary weight given to the seriousness of the current offence, and variations allowed for offenders with lengthy criminal histories. Just deserts was also the basis for guideline formulation in Washington and Oregon.

The England and Wales Criminal Justice Act 1991 made desert the primary rationale, but included special provisions for the courts to pursue incapacitation in the sentencing of serious violent and sexual offenders. Section 3(3) restricts the courts in determining the seriousness of the offence, to “the circumstances of the [current] offence”, and directs them not to consider “information about the offender”. The desert rationale was considerably weakened by amendments to the Act in 1993. Although s3(3) is unaltered, the courts’ discretion has been widened as to what can be considered in regard to “the seriousness of the offence”. Factors which are more related to the past conduct of the offender than the offence(s) for which sentence is being passed can now be considered. Thus, “seriousness of the offence” may include taking account of the offenders’ previous convictions, and “any failure of [the offender] to respond to previous sentences.” In addition, the fact that an offence was committed while on bail for another charge is to be considered an aggravating factor.

3.1.7. Summary

In a just deserts system the punishment emphasis is balanced by a consideration of rights. The objective is that the sentence is both just and deserved by being linked to the seriousness of the offence. The harm done or risked, and the offender’s culpability are the key determinants of offence seriousness.

Just deserts does not pursue wider social goals through sentencing, although some theorists argue that public censure or denunciation, and the deprivation of money, time, or liberty which expresses this censure have a general crime prevention role. This is achieved through a positive reinforcement of the norms and values which society wishes to uphold. The extent of such effects is of course hard to measure.

One issue which the just deserts model has difficulty in addressing is that of restitution to victims and the community. The focus of just deserts is very much on the state responding to the offence on behalf of, and for the benefit of, the community. There is potential for conflict here between the censure deemed to be appropriate to the offence and the compensation or other actions required to meet victims’ needs. For instance, desert may indicate a prison sentence as appropriate which may mean it is very difficult, if not impossible, for the offender to make any compensation to the victim. Just deserts and restitution are more compatible if a benefits and burdens approach is taken towards just deserts. Potential conflict still remains, however, in the emphasis of just deserts on fairness to the offender through like sentences for like offences, as opposed to restitution’s requirements for fairness to the victim. This issue is further discussed in the section on restitution (3.5).

3.2. Deterrence

Individual and general deterrence are frequently cited as aims of, and rationales for, sentencing. Deterrence-based sentencing aims to influence future levels of offending through instilling fear of future consequences in either the individual offender, society at large, or both. It is based on the notion that the threat of the sentence is a major constraint on offending.

The justification for deterrent sentencing is encapsulated in the words of Jeremy Bentham, the nineteenth century ‘father’ of deterrence. Bentham argued that deterrence elevates a punishment from mere vengeance against the offender by transforming it into an “indispensable sacrifice to the common safety” (quoted in von Hirsch and Ashworth 1992, pp62–3).

Deterrence became prominent in the late 1970s after the loss of faith in rehabilitation. This was particularly reflected in the USA in the introduction of a range of mandatory minimum penalties to ensure that imprisonment was imposed. The pursuit of deterrence has been one of the factors in the continued escalation of sentence levels in response to rising crime rates.

If individual deterrence is the goal, then penalties are escalated once a person starts reoffending. The sentencing judge could, for example, choose to make an example of a persistent burglar by imprisoning him or her for the maximum term, even if the current offence is relatively minor. If general deterrence is the goal, any common offence could be met with very severe penalties no matter how serious the actual offence is. The legislature could provide a mandatory minimum penalty of imprisonment for any driver caught exceeding the speed limit in an attempt to discourage such behaviour.

Deterrence has widespread support as a goal of the sentencing system, and continued high rates of crime are frequently cited as evidence that current penalties are not harsh enough. This was a commonly expressed view among participants in a 1994 survey commissioned by the Department of Justice. In particular there was a view that prison is now too soft to be a deterrent. Individual deterrence was seen as especially appropriate for young and first time offenders, especially by older respondents. There was a minority view that corporal and capital punishment would be effective deterrents. The survey also revealed that shaming is seen as a necessary component to (individual) deterrence.

Few would dispute that the existence of a sentencing system and the fact that those who are convicted of crimes generally receive a sentence has some deterrent value. The question to address in discussion of whether deterrence should be a specific aim of sentencing and a guiding rationale for sentencing decisions is more concerned with the marginal deterrence to be achieved by increasing the sentence beyond what would normally be imposed, in order to send a message to the individual involved, and/or to the rest of the community. An alternative question is how much crime rates would be affected by a de-escalation of sentences.

The following discussion of deterrence relates to deterrence achieved through sentencing. It is important to bear in mind, however, that fear of the potential sentence is only an issue if the potential offender believes there is a good chance of being caught and convicted. The deterrent potential of changes in detection, investigation, and prosecution is a separate issue from the pursuit of deterrence through sentencing.

3.2.1. Deterrence as a rationale in current sentencing practice

There are particular instances in which the New Zealand courts have seen fit to impose exemplary punishments. This has occurred mainly for serious offences, where the offence is committed in a particularly grave form, and where it is prevalent in the community and is causing public alarm.

The courts have shown greatest readiness to impose deterrent sentences for pre-planned offences. In considering appeals related to the manufacturing of a class B drug, the Court of Appeal (per Cooke J) acknowledged that the extent of deterrence through severe punishment is contentious and varies between cases, and that the prospective sentence may not have a major influence on those already addicted to drugs. Notwithstanding this, the Court saw a major role for use of imprisonment as a general deterrent, stating that “there can be no time when it is more necessary for the courts to use their sentencing powers firmly in the hope of deterrence than at the early stage of the growth of a new social evil”. In recognition of the planning and preparation involved in the manufacture of homebake, the Court found it reasonable to assume that “prospective penalties will from time to time deter at least some from a disastrous and insidious course” (R v Latta [1985] 2 NZLR 504 (CA)).

Deterrence has been seen as appropriate in fraud cases involving substantial amounts and abuse of positions of trust. In R v Raymer (CA 446/90 and 12/91, 23 July 1991) [1991] BCL 1703, the Court of Appeal (per Casey J) stated that “sentences must not only punish the offender and act as a deterrent to him; they must also serve the wider purpose of protecting society by deterring others of similar propensity ....” Deterrence has been cited in cases of commercial blackmail, where people have taken the law into their own hands, for crimes committed on contract, drink-driving offences, and aggravated robbery.

In the following sections the pursuit of deterrence is examined on ethical and effectiveness grounds.

3.2.2. Ethical issues

Deterrence may conflict with the sense that the criminal justice system should be humane and just in its operations. General deterrence does not respect the rights and autonomy of the individual, but merely treats him or her as a means to achieve the greater social goal of deterring others from like conduct. The sentence imposed has little to do with the offender and his or her culpability, and more to do with crime levels and concern about crime, which will vary over time and between localities.

Questions of fairness are raised if sentences for like offences differ markedly as the result of these external factors. Consider the case of white collar fraud. Offences of this type have caused substantial concern in recent years, and it is the type of planned crime which is often thought susceptible to deterrence. Should current offenders be given exemplary sentences to deter others? If rates of offending subsequently decline, should future offenders receive a sentence which is more commensurate with the seriousness of the offence and hence of a lower level?

Norval Morris argues on the other hand that general deterrence accords with the principle of using the least intrusive sentence possible, because it makes it unnecessary to sentence all the guilty equally. In fact, some can even be diverted from prosecution, if a few are selected for exemplary punishments to serve as a signal to the rest of the community. The additional deprivation suffered by those individuals selected for exemplary sentences is justified by the deterrent effect, and because the total deprivation is smaller than it would be under just deserts sentencing (because not all the guilty are sentenced). This cost/benefit analysis depends on the costs attached to the sacrifice of equality before the law (see von Hirsch and Ashworth 1992, pp202ff).

Individual deterrence, which is most often applied to repeat offenders, has a greater connection to the actual offender in that it relates to his or her past conduct. The risk here is that individual deterrence may amount to additional punishment for past offences. (This is further discussed in Chapter Six on the sentencing of persistent offenders.) Such sentencing is likely to impact strongly on the socially disadvantaged, as offenders from these groups are likely to have a higher probability of reconviction. To escalate their sentences for deterrent purposes would risk scapegoating this already vulnerable group (Ashworth 1992, p172).

In theory a deterrent rationale (both general and individual) provides no limits on sentence as long as it will deter. Since the aim is to create fear of penalties, there is a tendency for deterrence to inspire calls for harsh prison conditions, lengthy prison sentences, and capital punishment (for general deterrence only in this case), as these are the options which represent the extremes of fear-inducing sanctions in the modern mind. This tendency is exacerbated when past or current levels of sentence apparently fail to deter.

3.2.3. The effectiveness of deterrent sentencing

Many studies of deterrence are concerned with the deterrent effect of changes in levels of enforcement and prosecution rather than changes in sentencing. This section concentrates on the available evidence on the marginal deterrent effect of increases in sentencing levels.

Evaluation of deterrence often compares the crime rates of jurisdictions which differ in the probability or severity of sentencing, or they compare crime rates before and after a change in probability or severity of sentence in a given jurisdiction. If a negative relationship is found between crime rates and sentence probability or severity (i.e. if crime rates go down when probability or severity of sentencing is increased) this is seen as indicative of deterrence.

Deryck Beyleveld’s review of such research concluded that:


Almost without exception, regardless of variations in design, correlation technique, control or modelling procedure, the expected relations have been found between probability of sanctions and offence rates, but have not been found between severity of sanctions and offence rates. In the latter case, the only consistent exception is found with homicide, where severity is measured by the length of imprisonment for homicide.
(see von Hirsch and Ashworth 1992, p79)

Beyleveld and others involved in such analysis caution that a negative relationship between crime rates and the severity or probability of sanctions is by no means conclusive evidence of deterrence. The 1978 (United States) National Panel on Research on Deterrent and Incapacitative Effects reported that:


Any conclusion that these negative associations reflect a deterrent effect ... is limited principally by the inability to eliminate other factors that could account for the observed relationship even in the absence of a deterrent effect.
(Blumstein, Cohen, and Nagin 1978, p46)

The panel was particularly concerned that the available research had not been able to eliminate the probable effect of the simultaneous relationship between crime rates and sanction probability, especially imprisonment probability. This means that crime rates are likely to influence sentencing probability or severity, as well as, or instead of, sentencing probability and severity influencing crime rates as assumed under deterrence theory. The former may occur if high crime rates overburden the criminal justice system to the extent that arrest becomes less likely, charges are dropped or bargained down for administrative convenience, and prosecution cases are not able to be prepared so rigorously, resulting in a drop in sentence probability and severity. The panel and others who have assessed such studies also urged caution in view of the questionable reliability of the crime rate data (due to recording errors, the fact that so much crime is unreported, and that reporting rates may change over time, possibly even as a result of changes in sentence certainty or severity).

Another issue is the need to establish causality between the observed changes in the crime rate and the sentencing variables; eliminating the possibility that the changes in both are caused by a third factor. Even in studies which control for socio-economic and demographic factors it is still possible that crime effects are due to other ‘unknowns’. Most aggregate crime rate/sentencing probability and severity studies also have difficulty in separating out deterrent effects from the incapacitation effects which may be achieved by more use of imprisonment. Another consideration is that the crime rate and sentencing severity are both in fact likely to be causally related to degrees of tolerance of crime. Societies with low crime rates are likely to be relatively homogenous ones, which will accordingly have a low tolerance of deviance. This may in turn produce relatively punitive sentencing regimes. Hence, low crime rates may be associated with severe sentencing patterns and vice versa. This suggests that cross-jurisdictional comparisons of crime rates and sentencing severity are likely to be inadequate as proof of the efficacy or otherwise of general deterrence. These problems are not likely to be so acute in time series analyses within individual jurisdictions, since other relevant variables are more likely to be constant.

Despite these reservations and despite the panel’s caution as to adducing evidence of deterrence, they concluded that there was more evidence for deterrence than against it, and that “criminal sanctions do influence at least some criminal behaviour by some individuals”. The available research was deficient in that it was not able to shed light on “the magnitude of the effects of different sanctions on different crime types” (Blumstein, Cohen, and Nagin 1978, p47). It is of course just such information which is necessary for sentencing policies based on deterrence.

Interviews and questionnaires which focus on self-reported rates of offending and perceptions of probability and severity of penalty also suggest some deterrent effect for those with a perception of a high probability of apprehension, and among those who consider the perceived penalties to be particularly unpleasant. They do not indicate a greater deterrent effect according to the perceived length of sentence (Beyleveld in von Hirsch and Ashworth 1992, pp81–3).

Both the panel’s work and that of Beyleveld were undertaken in the late 1970s. Studies since that time show some evidence of deterrence through sentencing with respect to some crimes. For instance, one study of the effects of mandatory sentencing for violent crime involving guns (homicide, assault, and robbery) in six United States cities suggested strong support for deterrence of homicides with a gun, while the results for gun assaults and robbery with guns showed little evidence of deterrent effect. One possible reason for this differential effect was that the higher volume and profile of media reporting of homicide cases compared with the other offences meant that sentence levels were much more effectively communicated for homicide. The researchers also proposed the alternative view that the assault and robbery results may have been masked by recording inconsistencies and errors in the crime rate data, which did not apply for homicides because these are generally recorded with greater accuracy and consistency. Another significant outcome was that the extent of the effects varied considerably from place to place, suggesting the need for further research to explain these differences. In addition, the follow-up periods were relatively short (twenty-four to thirty-six months), so the effects measured were short-term and it was not clear whether they would decline over time (McDowall, Loftin, Wiersema 1992, pp378–94).

Another review of studies of the deterrent effects of longer sentences concluded that:


The average estimates indicate that the deterrent effect is strongest for rape and assault, weakest for hijacking and fraud with robbery, burglary, auto-theft, larceny and murder in between. With the exception of murder, violent crimes tend to have larger (negative) elasticities than non-violent crime [meaning they are more deterrable by longer sentences].
(Lewis 1986, p49)

(It is of note that this result contradicts that of Beyleveld’s review in respect of murder/homicide, see above). The author nevertheless acknowledges that the research under review may well be subject to the same problems as those identified by the National Panel on Research on Deterrent and Incapacitative Effects (Blumstein, Cohen, and Nagin 1978), so there is still reason for caution as to the findings. On the other hand, he makes the point that these difficulties may be exaggerated, or that there may also be difficulties which work the other way to mask the deterrent effect (Lewis 1986, p59).

The available research does not offer strong evidence of a deterrent effect from changes in sentence levels, but nor does it prove that deterrence does not occur. The research points instead to a number of questions which need to be addressed in the consideration of deterrence as a goal of sentencing. There is a need to ascertain the circumstances in which penalties will deter. There may be a sentence threshold beyond which no further deterrence will be achieved, especially as people tend to discount the future. Or it may be that deterrence, and hence crime reduction, is better pursued through increasing the certainty of apprehension and conviction, than through increases in the severity of penalties, and that sentence levels could even be reduced.

Perhaps the only thing which can really be concluded is that while some sentencing policies may deter in some circumstances, there will be many other instances in which they will not have a deterrent effect. The following section canvasses some evidence and theories as to the limitations of deterrent sentencing.

3.2.4. Factors which may limit deterrence through sentencing

Deterrence depends on potential offenders rationally weighing up the costs and benefits of crime and then determining whether it is worthwhile. This calculation relies on the potential offender having sufficient and accurate information as to the likelihood of being caught and convicted, and on the likely penalty.

Even with this information, the actual calculation of costs and benefits is likely to vary between individuals. Key factors in the calculation are the person’s readiness to take risks, the strength of his or her preference for behaving in a law-abiding manner and, indeed, whether the person considers the contemplated behaviour to actually be a crime. Other crucial variables are the individual’s assessment of the profit to be gained (particularly in the case of non-monetary profit) and the person’s life circumstances, most particularly what they stand to lose from being caught, quite apart from the impact which any sentence imposed by the criminal justice system would have on them, i.e. how family, friends, or associates would react, and how it would affect relationships, employment prospects, and social standing.

Some indication of these individual variables is available from interviews and questionnaires which ask respondents to rank the factors which inhibit offending behaviour. Legal controls on behaviour appear to be generally less important than other controls such as moral inhibitions, although those with greater involvement in offending attach more importance to legal controls than those with lesser involvement. Respondents typically overestimate probabilities of arrest and have an inaccurate knowledge of penalties, although those with greater involvement in offending have lower estimates of arrest probability than the general population. The question arises whether this lower estimate makes them more willing to offend, or whether the lower estimate is a product of their offending experiences. Beyleveld concludes that even if these studies show some people are deterred by their beliefs about sentences, they do not provide any insight into the crucial question for sentencing policy; which is how do changes in actual sentence levels influence beliefs about sentences among those who are deterred by their beliefs (Beyleveld in von Hirsch and Ashworth 1992, pp81–3).

An insight into the assumptions of offenders comes from a 1980s study of English burglars. They did not think they would be caught; they were not worried about the consequences of being caught (either because the sentence was regarded as an ‘occupational hazard’ or because they did not think about the consequences at all); and the rewards of burglary were rarely known in advance (von Hirsch and Ashworth 1992, p58).

New Zealand researcher Dr Julie Leibrich’s interviews with convicted offenders in New Zealand revealed that the actual sentence was only a factor insofar as it would cause them to lose something else they valued. Whether or not they continued offending was influenced very much by other life circumstances, and by whether the person actually believed that the contemplated behaviour was a crime. As Leibrich summarised it:


They were deterred from further crime by not wanting to put the things they most valued at risk – whether that was their family, their work or their self-respect. Sometimes the deterrence was simply their own sense of morality, sometimes it was an external threat of consequence.
(Leibrich 1993, p237)

Another theory as to why sanctions do not deter in certain situations is the defiance theory of Lawrence Sherman. According to Sherman’s theory, defiance causes increases in the seriousness, prevalence, and incidence of offending as the result of proud shameless reactions to criminal sanctioning. Sanctions provoke future defiance of the law when offenders experience the sanctions as illegitimate (unfairly or disrespectfully imposed); when offenders have weak bonds to the sanctioning agent and the community represented by the agent; and when offenders deny their shame and become proud of their isolation from the sanctioning community. Under the opposite conditions sanctions will produce deterrence, or if the factors encouraging defiance and deterrence are evenly counterbalanced, the sanctions will become irrelevant to future offending. Specific defiance relates to the sanctioned offender’s reaction; general defiance relates to the reaction of a group to the sanctioning of one or more of its members (Sherman 1993, pp448–9, 459).

On the other hand, deterrence may simply be limited by the impulsive nature of many offenders. This is the view expressed in the 1990 White Paper Crime, Justice and Protecting the Public issued by the British Government. Faith in deterrence was seen as over optimistic because:


Much crime is committed on impulse, given the opportunity presented by an open window or unlocked door, and it is committed by offenders who live from moment to moment .... It is unrealistic to construct sentencing arrangements on the assumption that most offenders will weigh up the possibilities in advance and base their conduct on rational calculation. Often they do not.
(quoted by Ashworth 1992, p60)

Other salient factors include the possibility that the deterrent effect of longer sentences may be lessened by the tendency of people to discount the future. This would be more likely for additions to already long sentences than for additions to shorter sentences.

It is possible that the deterrent effects of the system may change, but have little impact if they do not filter through to would-be offenders. Similarly, the system may operate at much the same level of deterrence, but changes in potential offenders’ perceptions through their own or friends’ experiences may increase the deterrent impact.

The degree to which changes in sentence severity will impact on offending will also vary according to different types of crime. Logic suggests that crimes which are a long time in the planning and are carefully thought out, e.g. fraud, may be more susceptible in this regard than crimes of passion or those committed under compulsion, such as stealing to support a drug habit. Leibrich’s interviews suggest the limits of deterrence for compulsive offenders. Her interviews with persistent drink drivers showed that:


nothing they were aware of – not even prison – seemed an effective deterrent. Although three of them commented that jail was a strong possibility if they got caught, it was no deterrent. Partly this was because the addictive behaviour itself was so strong and also because people felt the risk of being caught was so small. Indeed their experience suggested they were right. Even when the judge had made jail seem a certainty next time, the certainty of punishment was irrelevant if the risk of getting caught was slight.
(Leibrich 1993, p97)

In another case the offender saw her drug dealing as such a financial necessity that jail was not a deterrent. She had even made arrangements for the care of her children if she did get put away (Leibrich 1993, p100).

Finally, policies aimed at deterrence may have effects other than the prevention of crime. Offenders may react to the greater risk by making greater efforts to avoid detection, or by escalating the degree of the offending so that the potential benefit continues to outweigh the risk. In the latter instance, the white collar criminal would actually embezzle more money in the face of a higher likely penalty. Alternatively, action taken against one type of offence may cause a substitution effect whereby potential offenders move to another type of crime. On the other hand, it is possible that deterrent action against one type of crime may also decrease complementary crimes, for instance increased enforcement against drug use may cause a decrease in dealing.

3.2.5. Summary

While it is reasonable to assume that the very existence of the criminal justice system has some deterrent value, there is little evidence to support the view that increasing the level of sentences will deter the individual offender or would-be offenders in general.

One of the difficulties with deterrent sentencing is that there are numerous potential influences on offending behaviour, and these will vary between individuals. Even if the potential for conviction and sentencing acts as a general deterrent, this does not necessarily mean that an increased level of sentence will be a greater deterrent. Another limitation is that potential offenders will not necessarily have full information about the likely level of penalty. The limitations of deterrent sentencing are perhaps best summed up by Leibrich’s conclusion from her interviews with offenders that:


Penalties alone will not reduce offending. People who have nothing of value have nothing to lose. People who have no sense of belonging have no social status to risk.
(Leibrich 1993, p240)

Aside from these reservations as to how effective deterrent sentencing can be, there are ethical concerns with the premise of deterrent sentencing. Individual deterrence in effect punishes the offender again for previous convictions. General deterrence turns the offender into an example to others. Fairness between offenders of like culpability is clearly sacrificed if one or some are chosen as an example, or if some happen to be sentenced at a time when there is a particular concern about the level of offending. The question is whether, and to what degree, fairness should be sacrificed in return for an expectation of future crime prevention which has little empirical foundation.

3.3. Incapacitation

Incapacitative sentencing aims to protect the public from future offending by the particular offender being sentenced. The offender is not sentenced on the basis of the conviction offence, but rather according to predictions as to his or her likelihood of reoffending. Predictions of future offending are usually heavily influenced by the level and type of the individual’s past convictions.

In this section, different types of incapacitative sentencing are outlined and issues addressed as to both the ethical implications and effectiveness of such strategies.

3.3.1. Types of incapacitation

Incapacitation is generally perceived to be achieved through imprisonment, as this takes the offender out of society and thus deprives him or her of the opportunity to commit offences (in society at least).

Collective incapacitation refers to a general lengthening of prison sentences and/or an extension of the use of imprisonment, often by picking out particular offence types for mandatory or mandatory minimum sentencing. This is why it is sometimes called charge-based incapacitation. Offenders are selected for longer sentences on the basis that they belong to a group (e.g. those that commit an offence classified as a serious violent one) believed to constitute a high risk of reoffending. This is based on the premise that locking up more known offenders for longer will help to prevent crime. Collective incapacitation is one of the reasons for the rapid growth in the United States prison population since the 1970s.

Selective incapacitation, as the name suggests, attempts to target prison resources towards offenders who are assessed as likely to commit further offences either at such a frequency, or of such seriousness (or both), as to cause considerable public nuisance or an actual threat to public safety. It gives courts the discretion to select a particularly long sentence for special high-risk cases on the basis of an individual assessment of the offender’s likely future offending.

3.3.2. Incapacitation in New Zealand

In New Zealand, incapacitation is one of the goals traditionally pursued through the sentencing system. The Court of Appeal has affirmed that protection of the public is a legitimate factor to be taken into account in sentencing. The Court has, nevertheless, emphasised that any increases in sentence for incapacitative reasons should not take the sentence beyond what is proportionate to the gravity of the offence. On this basis, the Court has reduced a number of lengthy finite sentences imposed on persistent offenders in order to bring the sentences to levels proportionate to the offences. The leading case is R v Ward [1976] NZLR 588, where the Court stated that the “desirability of prevention must be balanced against [the] gravity” of the offence. The Court saw this limitation as necessary because incapacitative sentencing, based as it often is on assumptions drawn from past offending, may in fact amount to a repeat punishment for that earlier offending.

New Zealand law also includes the sentence of preventive detention which has a specifically incapacitative focus. This is an indefinite sentence, with a standard non-parole period of 10 years. Amendments to the Criminal Justice Act in 1993 now allow the sentencing judge to impose a non-parole period longer than ten years in “exceptional cases”. There is no limit on the non-parole period which the judge may impose.

Preventive detention is an example of selective incapacitation in that it is focused on offenders perceived as particularly dangerous. It can only be imposed on offenders who are at least twenty-one years old, and who either have a history of violent or sexual offending since the age of seventeen or have been convicted of sexual violation. The sentencing judge may impose this sentence if he or she is “satisfied that it is expedient for the protection of the public that [the offender] ... should be detained in custody for a substantial period”. In the case of an offender convicted for the first time of sexual violation who has no other previous conviction for a qualifying offence, the judge must first obtain a psychiatric report on the offender, and be satisfied that there is a “substantial risk” that he or she would commit one of the specified violent or sexual offences on release (Criminal Justice Act 1985, s75).

Whereas the incapacitative effect of a finite sentence only lasts for the length of the sentence, preventive detention has far greater potential by virtue of its indefinite nature. It is possible to hold an offender in prison for as long as he or she (always a male to date) is considered a danger to the public. Furthermore, after release the sentence continues to run, so that the preventive detainee may be recalled to prison if his behaviour gives cause for concern.

While preventive detention offers considerable potential for public protection, it is a very extreme example of the exercise of the state’s coercive power. It is for this reason that the Court of Appeal has emphasised that this sentence should be considered very much as a sentence of last resort. The Court of Appeal has made it clear that the “controlling principle” of proportionality as expressed in Ward does not apply to offenders who qualify for preventive detention (serious and persistent violent and/or sexual offenders). Lengthy finite sentences may, therefore, be imposed in such cases for incapacitative reasons. In fact, the Court has made it clear that such sentences should be considered ahead of preventive detention, which should only be imposed if adequate public protection cannot be achieved through a lengthy finite sentence. This has not been changed by the 1985 Criminal Justice Act or the 1987 amendment to it (R v Bidwell (CA249/85, 20 December 1985) [1986] BCL 245; R v Glen-Campbell (CA330/87, 24 March 1988) [1988] BCL513; R v White [1988] NZCA 55; [1988] 1 NZLR 264; R v Mataira [1992] NZCA 355; (1992) 8 CRNZ 194). On this basis, the Court has on occasion replaced preventive detention with lengthy finite sentences. (See for instance R v Pratt (CA61/78, 8 August 1978) [1978] BCL, 792; and R v K (1990) 6 CRNZ 210, 212).

New Zealand has two other incapacitative provisions in sections 80 and 105 of the Criminal Justice Act. Section 80 (the result of a 1993 amendment to the Act) provides that the court may, when the circumstances of the offence are exceptional, impose a minimum period of imprisonment greater than ten years in the case of indeterminate sentences or in excess of two-thirds of the sentence up to a maximum of ten years in the case of serious violent offenders sentenced to more than two years imprisonment.

As with preventive detention and s80, s105 is aimed at serious violent offenders, but it is not a sentencing provision. Instead it allows for the Parole Board, upon application by the chief executive of the Department of Corrections (prior to 1 October 1995 the Secretary for Justice), to order the postponement of an inmate’s release until three months before the end of the nominal sentence if it is satisfied that, if released before that date, the inmate would commit one of the specified serious violent or sexual offences before the date on which he or she would be released under the order. Since this provision came into force in 1987 there have been twelve applications for a s105 order and the Parole Board has made nine orders[4].

3.3.3. Ethical questions

The major objection to incapacitative sentencing is the ethical one that it infringes a citizen’s civil rights to be punished not for something they have done, but for what it is believed they might do in the future. Incapacitative sentencing means that offenders are sentenced more severely than justified by the seriousness of the offence. Under selective incapacitation, sentences for like offences may be grossly dissimilar (because of differences in the perceived risks associated with the offender). Unless selective incapacitation is applied to only the most serious offences, a further consequence is disruption of the penalty scale; i.e. a lesser offence may receive a higher penalty than an offence of greater seriousness.

The use of past offending in predictions of future criminality means offenders may receive additional punishment on account of past offences. This is the danger cited by the Court of Appeal in its emphasis that incapacitation must be tempered by proportionality, except in the case of the serious violent and sexual offenders who qualify for preventive detention. Another potential problem is that predictions that an individual will reoffend may have a labelling effect and thus be self-fulfilling.

The acceptability of these consequences will depend on the degree to which proportionality of sentence and offence is accepted as the norm, and on the acceptability of a trade-off between a certain amount of disparity and a certain amount of crime reduction.

Whether incapacitative sentencing achieves crime reduction, and if so, how much, depends on the accuracy of the predictions of future offending. Prediction accuracy is further discussed below, but the general point is that prediction techniques remain problematic. The National Academy of Sciences commented in their 1978 examination of incapacitation that:


Poor prediction not only undermines the utilitarian justification for selectively incapacitating some convicted offenders, but it also introduces concern for the injustice suffered by those who are imprisoned because their future crime propensity is erroneously predicted to be higher than it is.
(Blumstein, Cohen, and Nagin, 1978, p76)

The problem persists. More recently, von Hirsch has commented on the problems in curtailing a person’s liberty “merely because people like him or her will offend again, ... [when] we cannot specify which of them will actually do so” (von Hirsch and Ashworth 1992, p104). In von Hirsch’s view there are strong pressures to over-predict criminality, because preventive imprisonment conceals erroneous confinements but reveals erroneous releases. This leads to calls for more preventive imprisonment, and inevitably more false predictions of future offending (von Hirsch and Ashworth 1992, pp120–1).

An analogy is sometimes drawn between confinement on the basis of erroneous predictions and conviction of innocents. Conviction requires ‘proof beyond reasonable doubt’, but if people are detained on the basis of a 33 per cent to 50 per cent probability of future offending this would seem to fall far short of the normal standards of criminal proof (Tonry in von Hirsch and Ashworth 1992, p172). (Many predictions of serious violent offending are assessed as having a one in three accuracy rate, with 50 per cent as the best success rate, as is noted below at 3.3.4.) However, the problem is not simply that predictions are inherently uncertain, but that even if a prediction could be based on reliable grounds (in that, for example, the offender is in fact clearly disposed towards a particular sort of conduct) that still does not mean that he or she will act in accordance with it, because other intervening factors may change the situation. For example, at the extreme end of possibilities, a crippling accident or serious illness may prevent someone reoffending upon being released from imprisonment, but this does not mean that the original prediction was erroneous. Therefore, arguing against predictions on the grounds that they cannot meet the standards of proof required for convictions is perhaps not that useful.

Another argument concerns the dangerous non-offender. If the risk of future offending constitutes a reason for sentencing an offender beyond what is justified on normal tariff principles, then could it also be a reason for confining a potential offender who has yet to offend? One response is that everyone has a right to be presumed harmless until that right is forfeited by committing a serious crime, which indicates a capacity to harbour and carry out harmful intentions. The rights of potential victims then come to take precedence over the rights of the offender.

This balancing of rights in favour of potential victims was central to the conclusions of the 1981 British Floud Report on dangerousness. The authors recognised the “grave harm” of unnecessary confinement on incapacitative grounds, and concluded that this could only be justified if it relieves potential victims of the substantial risk of grave harm. On this basis, “protective sentencing” should be restricted to “cases where the predicted harm from the offender is quite severe” (on the basis of previous harm inflicted). Those who have committed very serious crimes may be exposed to the risk of unnecessary confinement, but this is preferable to society bearing the risk of victimisation by the offender (Floud and Young in von Hirsch and Ashworth 1992, pp104–5).

Ethical issues are also raised in respect of the factors used in predictions. Factors such as gender, race, ethnicity, and age may correlate with recidivism and violence probabilities, but since these factors are beyond the person’s control, should they be used in predictions? A similar argument relates to the use of alcohol and drug addiction, employment, and educational status variables. The use of these status factors for predictions would concentrate the impact of incapacitative sentencing disproportionately on already disadvantaged (and highly imprisoned) socio-economic and ethnic groups.

The 1986 United States National Panel on Research on Criminal Careers (Blumstein, Cohen, Roth, and Visher) concluded that past criminal offending is the best single indicator of future offending. This means omission of the above status factors may not have a great impact on the accuracy of predictions. One remaining issue, however, is how past offending is measured. If arrests are included this may unduly inflate an individual’s previous offending record, especially as those with an offending history may have a greater likelihood of arrest, if only because they are known to police. It could be argued that if past offending is to be used for predictions to determine sentence length and curtailment of liberty, then only proven or admitted offending should count (see Tonry in von Hirsch and Ashworth 1992, p175). In New Zealand the use of anything other than offences where convictions have been entered would be contrary to the New Zealand Bill of Rights Act 1990 (s26).

3.3.4. The accuracy of predictions

The incapacitative effect of imprisoning an individual will depend on more than just whether he or she would have committed another crime. It will also relate to the frequency with which he or she would have continued to commit offences, the seriousness of those offences, and how long he or she would have continued to behave in this way. Considerable attention has been devoted in recent years to developing predictive models. The literature to date suggests, however, that there are severe limits on the predictive capacity of these models.

In any predictive strategy two types of errors are possible: false negatives and false positives. False negatives predict some persons to fail (reoffend) who actually succeed, while false positives predict some persons to succeed who actually fail. Raising the trigger point to classify fewer offenders as high risk will decrease the risk of false negatives, but may also result in more false positives, and hence a loss of credibility in incapacitation as a crime control strategy. On the other hand, incapacitative strategies which have a high proportion of false negatives, and therefore unnecessary imprisonment, will have substantial human and monetary costs. The same is true of predictions which overestimate the years of criminal career left to an individual. Detention will not be incapacitative when it continues beyond the point at which the individual would have ceased offending.

Incapacitation effects are also influenced by the potential for replacement of imprisoned offenders. This is particularly likely in respect of organised group activity such as car theft or drug dealing.

Selective incapacitation is often advocated for dangerous offenders, but very serious violent crimes are a relatively rare event. This makes them particularly hard to predict, because there is not a large body of data from which to draw statistical correlations between the observed characteristics of known offenders and their subsequent criminal conduct. In addition, violence is difficult to predict because of its situational quality, and because a number of factors external to the offender may influence whether it is reported (see von Hirsch and Ashworth 1992, pp116, 118).

In its look at prediction studies in respect of serious offending (and generally serious violent or sexual offending) the Floud Report found none with better than a 50 per cent success rate, and many which resulted in two false positives for every one true positive. The authors concluded that statutory tests of dangerousness were not feasible for the restricted range of offences for which they proposed incapacitative sentencing because of the inadequacy of predictive judgements, and because the number of offenders would be relatively small and their characteristics extremely varied. (The offences for which they advocated protective sentencing were those involving death; serious bodily injury; serious sexual assault; severe or prolonged pain or mental stress; loss of, or damage to, property which causes severe personal hardship, damage to the environment which has a severely adverse effect on public health or safety; and serious damage to the security of the state). They concluded that the imposition of these protective sentences should rely on the exercise of a broad discretion (Floud and Young in von Hirsch and Ashworth 1992, p128). In 1992, Ashworth reported that there had been no significant improvements on the Floud Report’s findings on predictions (1992, p65).

Studies show that actuarial (statistical) methods of prediction based on selected objective characteristics of the offender have had a higher success rate than clinical predictions based on a diagnostic approach to the individual characteristics of an offender. Actuarial prediction is gaining ground, particularly in the United States, as its techniques become more sophisticated. It is part of a conceptual shift from a subjective approach involving a diagnostic assessment of an individual’s psychology for indications of dangerousness, to a more ‘objective’ one of matching individuals to high risk factors statistically linked to the highest probability of future violent offending. This application of ‘rationality’ rather than human discretion is considered by its advocates to be more exact, consistent and transparent, and therefore fairer. (It is also cheaper.)

One example of the use of clinical prediction in New Zealand is the requirement for a psychiatric report before preventive detention can be imposed on a person convicted of sexual violation for the first time (Criminal Justice Act 1985 s75). Advocacy of clinical methods may be due to a concern that the basis for the decision is not individualised enough in statistical analysis, and important case-specific variables may be ignored. There may also be uneasiness over including socially sensitive variables such as ethnicity as a basis for sentencing. On the latter point, the finding of the United States National Panel on Research on Criminal Careers that past criminal offending is the best single indicator of future offending is salient (see 3.3.3). This implies predictions can exclude status factors without a great impact on the accuracy.

An important observation of relevance here is that the literature on offence specialisation indicates that offenders typically engage in a range of illegal behaviours of varying seriousness and type so that those convicted of very serious crimes are more likely to be subsequently reconvicted of a different category of offence rather than one within the same category. This has been supported by data on the post-release history of New Zealand prisoners sentenced to imprisonment for serious violent offences (Brown and Cameron 1995; Brown 1996). It can be stated that most offenders commit a variety of offences in an unpredictable fashion, probably determined by the situation they are in and the opportunities presented to them, so reliance on an offender’s most recent conviction as an indicator of the type of future crime he or she will most probably commit is likely to be inadequate. In the case of serious offending, this is more unlikely to prove a reliable predictor of subsequent conduct through the operation of the statistical principle known as regression to the mean. This states that extreme events (such as a very serious offence) are by definition infrequent and are likely to be followed by less extreme events which lie closer to the average. In other words most offenders’ behaviour is likely to be relatively minor and serious offences will be infrequent and will be both preceded and followed by periods of less serious criminal activity (Brown and Cameron 1995, p422). This principle was backed up by the New Zealand study noted above.

3.3.5. Some prediction studies

The main British prediction study was by Brody and Tarling in 1981. Only nine of the forty-eight people predicted as dangerous committed dangerous offences within five years of release from prison, while an equal number (nine) of dangerous offences were committed by offenders not classified as dangerous (quoted in Ashworth 1992, p65).

The 1986 United States National Panel on Research on Criminal Careers (Blumstein, Cohen, Roth, and Visher) examined the estimated effects of various collective, individualised, and offence-based incapacitation strategies. With respect to collective incapacitation, the panel concluded (with reference to the United States) that to reduce crime by 10 per cent would require existing prison populations to more than double. The panel noted that even this crime reduction may be an overestimate, as it did not take account of the possibility that other offenders may take the place of those who are imprisoned. Incapacitation was seen to have more potential when selectively applied to smaller high-risk populations. For example, it was estimated that a 5 to 10 per cent reduction in robberies could be achieved with 10 to 20 per cent increase in the population of imprisoned robbers.

These estimates were made according to the expected frequency of offences per offender per year imprisoned. They did not take account of the fact that some of the imprisoned offenders may have ceased to commit crimes during the time period. Nor did they account for the effect that the fact of imprisonment may have on the offenders’ future criminal careers. Imprisonment may lengthen the career, through the so-called ‘school of crime’ effect; or perhaps shorten the career through rehabilitative programmes undertaken while in prison. These exclusions, and the potential influence of factors from outside the criminal justice system, mean that the crime control benefits of incapacitation are often overestimated.

Overall, the Panel concluded that “while incarceration leads to some reduction in crime through incapacitation, none of the ... strategies examined provide dramatic reductions” (Blumstein, Cohen, Roth, and Visher 1986, pp142–3). Cohen suggests an alternative focus on criminal careers. Research by Blumstein and Cohen on robbery and burglary offenders in Washington DC which was based solely on past and present criminal records indicated that they have relatively short careers, but commit the offences at a relatively high frequency. This suggests short prison sentences for these offenders should prevent a lot of crime. Cohen also argues that because the sentences would be similar for those with similar past and present offences, problems of disparity would not arise (Cohen 1983).

An American study followed 6,310 offenders who reflected a random sample of men incarcerated in Californian prisons in 1962–63 through a follow-up period of 26 years. During that time, men from this cohort were arrested 30,464 times following their release; which included nearly 10,000 arrests for serious offences (homicide, rape, kidnapping, assault, car theft, burglary, thefts, robberies). These 30,464 arrests involved 4,897 of the 6,310 men. None of the prediction models (for purposes of selective incapacitation) that the study applied was able to distinguish with a significant degree of accuracy the recidivists from the non-recidivists or the type of offence recidivists were most likely to commit. All of the subsequent crimes could have been prevented by keeping all the offenders in prison (collective incapacitation on the basis of their 1962–63 sentence). This would have been at the cost of incapacitating 1,413 men in error (if the arrests made were legitimate and if those not arrested did not in fact offend). The above findings led the researchers to conclude that “the utility of incapacitation as a crime control strategy will be constrained by the limits imposed by predictive validity” and perhaps “by the nature of criminal careers” (Gottfredson and Gottfredson 1994, p468).

In New Zealand, senior psychologists of the Department of Justice and others have developed variables to summarise criminal conviction histories of offenders convicted in the years 1983 and 1988 (Bakker, Riley, Deely, et al 1995). The variables were used to develop predictive models on the likelihood of offenders being reconvicted for offences of specified seriousness, being sentenced to imprisonment, and being sentenced to imprisonment for a specified term. When tested against unseen data of subsequent post-sentence conviction or non-conviction a very close relationship was found between the probability of reconviction and the sentence outcome for a group of individuals, and the actual outcome in terms of the percentage of the group who were reconvicted and received imprisonment, including imprisonment for a specified term. For instance, when the model gave an individual a 0.85 probability of reconviction then close to 85 per cent of the people with that probability were reconvicted. The largest over- or under-prediction probabilities were at the top and bottom ends of the probability scale, where the numbers of offenders were smallest.

Although this model looks promising, it is yet to be validated in a genuinely predictive manner. In addition, it was developed for use in assessing priorities among sentenced offenders for access to treatment and programme resources (i.e. priority to be given to those assessed as in the higher risk groups). Although potentially very significant in terms of resource allocation for correctional programmes, such use of prediction models is of an entirely different order to its use in determining whether, and for how long, an individual should be deprived of his or her liberty. The model seeks to identify whether the individual belongs to a high- medium- or low-risk group, but does not identify the risk associated with the specific individual.

3.3.6. Summary

The experience of the United States in recent decades suggests that collective incapacitation policies are extremely costly in terms of prison overcrowding, resources, and wasted human lives, while crime rates remain high. Similarly, in New Zealand crime rates have generally risen along with prison populations.

Selective incapacitation offers the possibility of a better return than collective policies because it is targeted at high-risk or frequent offenders. The difficulty is that its effectiveness is completely dependent on the ability to predict future criminal careers. The high likelihood of inaccurate predictions and their human and monetary costs suggest that selective incapacitation should be pursued in only the most extreme cases of public danger. That is, it should be applied only to those offenders who pose a real danger to the public or to certain persons. This means the policy would be restricted to a relatively small number of offenders, and this of itself would be a means of minimising the potential harm of wrongful confinement. The dilemma here is that serious violent offences are among the hardest to predict. This issue is discussed further in the section on the sentencing of dangerous offenders (Chapter Seven).

3.4. Rehabilitation

Rehabilitative sentencing aims to reduce future crime by changing the behaviour, attitudes, or skills of the offender. It assumes that offending has specific causes, and the focus is on identifying and remedying these factors. Sentencing options are assessed on the likelihood of re-socialising the offender so that he or she is less inclined to commit crimes, or to provide the offender with the skills to combat these inclinations.

The following discussion is focused on the role of rehabilitation as an aim of sentencing and a determinant of sentencing decisions. It is not concerned with whether rehabilitative programmes should be available to offenders once sentenced. That is an issue of sentence content and administration which is not within the scope of this paper.

In the post-war period, the prevailing philosophy was to view criminality as ‘an illness caused by psychological conditions’ which could be ‘treated’ by interventions. This strong belief in rehabilitation was one of the factors leading to the expansion of community-based sentencing options. It was also the justification for indeterminate or semi-indeterminate sentencing systems, particularly in the United States. Under these systems, offenders were imprisoned in order to be treated, and their release date was determined by the parole authorities’ assessment of whether rehabilitation had been achieved. For instance, both the California Indeterminate Sentence Act and the Maryland Defective Delinquents Act allowed for indefinite detention of offenders until ‘cured’.

Dissatisfaction with rehabilitative sentencing was associated with the ethical issues discussed below, but the primary factor in its demise was the ‘failure’ of supposedly rehabilitated inmates after their release. This disillusionment was given an empirical foundation in 1974 by Robert Martinson’s assessment of the efficacy of prison programmes. The general conclusion drawn from Martinson’s study was that “nothing works”, and this “effectively marked the downfall of rehabilitation as a living ideal in corrections” (Canadian Sentencing Commission 1987, p138). Since 1985 there has, however, been a growing acceptance that some interventions work in some circumstances (see McLaren 1992, p20).

3.4.1. Rehabilitation as a sentencing goal in New Zealand

Not surprisingly, the New Zealand courts have seen rehabilitation as particularly appropriate to offenders whose criminal activity is related to addiction, especially drug addiction. Even so, primacy is accorded to sentencing principles more closely related to offence seriousness, as is made clear by Hardie Boys J in R v Benson (CA 86/90, 11 July 1990) [1990] BCL 1341. Hardie Boys J stated:


It is obviously in the public interest that rehabilitation be effected sooner rather than later. It must however be remembered that rehabilitation is but one facet of the public interest that must be reflected in sentencing. Punishment and deterrence also have an important place. In each case that comes before him, a sentencing Judge must determine where the emphasis is to be laid. Where the offending is the result of a drug addiction beyond the offender’s control, and other sanctions are unlikely to bring about a change in him, a rehabilitation programme may well be the appropriate sentence. But even then the need in the public interest to mark community outrage at a particular crime, or to impose a deterrent sentence, may outweigh the public interest in that particular individual’s early rehabilitation.

The courts have been ready to modify sentencing for rehabilitative purposes if the defendant has already made a genuine attempt to undertake a treatment programme. This strategy is sometimes tested by making attendance at a specified programme a condition of bail. Subject to satisfactory performance, the sentence of supervision is subsequently imposed to ensure continued attendance at the programme.

Hall comments that rehabilitation “has rarely been the paramount consideration in fixing sentence where offending is of a grave nature, even in the case of young offenders.” There has been a concern that rehabilitation should not be allowed to “obscure or dominate the consideration of general deterrence” (Hall 1993–97, B/82). Similarly, retribution and public protection are not subordinated to rehabilitation. This is illustrated by the Court of Appeal’s action to increase the length of a prison sentence for serious sexual offending from five to nine years, when the original sentence length had been calculated on the time the offender needed to undergo medical and psychiatric treatment. The sentence was increased to be commensurate with the seriousness of the offending and the needs of public protection (R v Jordan [1979] 2 NZLR, 268).

Imprisonment is not to be used as a means of rehabilitating an offender if the offending does not warrant a custodial sentence. In H v Police (High Court, Dunedin AP 67/92, 24 July 1992) 15 TCL 35/11, Williamson J quashed an imprisonment sentence for sexual offending at the lower end of the scale by a young, intellectually impaired offender, where the sentence had been imposed to enable the offender to attend the Kia Marama sex offender treatment programme at Rolleston Prison.

In summing up the courts’ attitudes towards the goal of rehabilitation, Hall concludes that:


The general principle that the sentence must be commensurate with the gravity of the offending is equally applicable where the Court is imposing a sentence with a view to achieving the reformation or treatment of the offender or the disposal of a person who is troublesome in the community.
(Hall 1993–97, B/84)

Hesketh and Young have argued that in New Zealand rehabilitative sentences generally fall at a particular point on the scale of penalties, and they will usually be selected only where the offence itself makes such a sentence appropriate (Hesketh and Young 1994, p45). This presumably refers to the community-based sentences, particularly supervision and community programmes.

Aside from the community-based sentences, borstal training is New Zealand’s prime example of a rehabilitative sentence. This sentence operated in various forms from 1927 until its eventual abolition in 1981. It was designed for young people in the hope that they could be turned away from a life of crime, and the object was training, not punishment. The version introduced in the Criminal Justice Act 1954 was the closest to the rehabilitative sentence common in the United States. It was a semi-indeterminate sentence with a maximum detention of three years (later reduced to two years). Release was determined by the Parole Board, and trainees were released on probation and subject to recall. The sentence was made semi-indeterminate to prevent sentencing on the basis of the gravity of the crime, and to ensure that the time served depended on progress towards rehabilitation.

By the time borstal training was abolished the character of the male trainees was such that they had longer and more serious offending careers than was envisaged at the outset. Among the female trainees, however, the problem was the opposite. They were often sentenced to borstal training for offences that were quite minor. As Patricia Webb notes, the excessive confinement of minor offenders for treatment purposes was illustrative of “the moral dilemma inherent in the indeterminate sentence concept – a dilemma that has had more than a little to do with its eventual decline” (Webb 1982, p54).

3.4.2. Public opinion on rehabilitation

Rehabilitation enjoys support among the New Zealand public as a means of responding to crime. A Listener/Heylen poll in May 1994 asked respondents a series of questions about the criminal justice system and compared these with 1985 responses to the same questions. In 1994, 36 per cent of respondents nominated “re-educating the offender” as the main aim of imprisonment, compared with 46 per cent in 1985. In both years this was the aim with most support, ahead of protection of the public, punishment, and imprisonment as a lesson to others.

A 1989 National Business Review poll mainly concerned with police issues, asked respondents to rate their level of agreement with the statement “Prisons should put more emphasis on helping and retraining offenders, even if this costs much more taxpayers’ money”. Half of the respondents agreed with the statement, nearly a third disagreed, and the remainder did not know or neither agreed or disagreed. In a 1994 Department of Justice survey of public attitudes, the women interviewed tended to focus more on rehabilitation than was the case for the men. Women tended to see an ideal justice system as including education of offenders.

Although these surveys suggest support for rehabilitation as an aim within sentence administration, it is not clear whether they support rehabilitation as the deciding factor in imposing sentences.

3.4.3. Ethical questions

If rehabilitation is the aim of sentencing policy, decisions on sentence length and type are not based on offence seriousness, perceived future criminality or the need for deterrence. Rehabilitative needs are the determining factor. The extent to which this is accepted will depend substantially on the significance attached to these other aims of sentencing, and on the success of rehabilitative programmes.

The logic of rehabilitative sentencing leads to the indeterminate or semi-indeterminate sentences of the past if a judgement on a person’s successful response to treatment is to decide when their sentence is to end. Offenders perceived as having considerable treatment needs may (and often did) serve very long sentences. The very long sentences may become disguised forms of incapacitation, in practice if not in intention. It is also possible that some serious offenders, for instance white collar criminals, will have few treatment needs and serve very short sentences. Sentencing disparity on the basis of treatment needs is more likely to be acceptable if the various sentences imposed do actually succeed in reducing recidivism. If not, attention is likely to focus on the apparent unfairness of the system in terms of sentences served in relation to offences committed.

Rehabilitative sentencing has been criticised on the basis that offenders from socially disadvantaged backgrounds are more likely to be perceived as in need of rehabilitative interventions than middle class offenders. Indeed, one of the reasons for the eventual abandonment of this type of sentencing in the United States was a widespread concern that it adversely impacted on black Americans.

Indeterminate sentencing is also questionable when assessed against the requirements of natural justice, as offenders do not know how long their sentences will be. This may turn into practical problems for sentence administrators if it results in despair, frustration and anger. This system is distinguished from the current parole system in New Zealand, where parole is available after a set proportion of the sentence has been served, and the sentence has a finite length, beyond which an inmate cannot be detained. (The exception is the two indeterminate sentences; life and preventive detention.)

Unless the offender consents to the sentence and the treatment which goes with it, problems of compulsory treatment arise. Compulsory treatment is likely to be less effective insofar as the offender lacks motivation. It can also be seen as undermining the autonomy and dignity of the offender as a human being. There is also the issue of coerced consent, which is whether offenders within the framework of a penal system can give genuinely free and informed consent. For example, when offenders are required to consent to the imposition of a particular sentence or to treatment within a sentence, they will not be doing so on a fully informed basis unless they know what the alternative will be if they refuse consent. Even if they are aware of the alternative and are then forced to choose between the lesser of two evils it could be questioned whether they are genuinely consenting to something.

Another difficulty is in determining whether an offender really is rehabilitated. Previous systems used inmates’ prison disciplinary records, and any measurable achievements such as completion of specific educational or vocational courses. Positive attitudes or adjustments may also be derived from personal statements, evaluations by counsellors and others, and from personal interviews with the parole board. Aside from questions as to the accuracy of these factors in predicting post-release behaviour, issues arise in respect of offenders who are able to work out the characteristics which establish rehabilitation and feign them to gain release.

Rehabilitation has often been raised as a way of humanising the administration of sentences. If the objective of trying to help offenders is removed and only some or all of punishment, deterrence, and incapacitation are left, those who work in the system will become guided by negative impulses only, and free reign will be given to the potential for abuse of power which is inherent in coercive environments, especially prisons. This is in essence an argument for having programmes in prisons, and for incorporating programmes in other sentences, rather than an argument for making the rehabilitative needs of offenders the primary determinant of sentencing decisions.

It is also illustrative of some of the mixed aims which have characterised the pursuit of rehabilitation. It has variously been seen as for the good of society in its contribution to crime prevention; for the good of the offender in helping to remedy skill or knowledge deficiencies and giving him or her something productive to do, especially while in prison; and for the good of sentence administrators in keeping the prison population busy and helping the staff remain positive about their role.

3.4.4. Effectiveness issues

Measuring the effectiveness of rehabilitative interventions is problematic. The most common measure is recidivism, or more precisely reconviction, but success does not necessarily require no reconvictions. The success of interventions may be indicated by reconvictions at a lesser frequency, after longer intervals, or for less serious offences. To measure the success of interventions it is also necessary to make assumptions about the rate at which the offenders would have been likely to offend without any interventions. Furthermore, it cannot always be assumed that a change in offending behaviour has come about as the result of the programme. Family, employment, social circumstances, relationships, and opportunities may all be powerful influences on the rate or likelihood of further offending.

Since 1974, further research and reviews of research have led to substantial questioning of Martinson’s conclusion. Martinson himself retracted “nothing works” in 1979 on the basis of further research, and although the 1979 United States Panel on the Rehabilitation of Offenders generally confirmed Martinson’s initial view, it found that there was evidence to suggest some successful rehabilitative efforts (see Canadian Sentencing Commission 1987, p138).

Other reviews of research have concluded that there is more evidence for effective interventions than against. This work has been assisted by the development of meta-analysis techniques, which enable large groups of studies to be analysed for overall effectiveness; by the achievement of greater experimental rigour in programme evaluation; and by the development of highly effective cognitive techniques in the social sciences (McLaren 1992, p21).

Out of this research has grown a set of principles of effectiveness based on the common components of effective interventions. The ‘principles of effectiveness’ theory holds that successful interventions may take a number of forms (for instance, outdoor pursuits, substance abuse programmes, educational and vocational training), and they may take place in either residential or non-residential community settings, or in prisons. The crucial determinant of success or otherwise is that interventions adhere to the set of principles; possibly the most important being that interventions are based on a social learning model. (The sixteen basic principles of effectiveness are fully described by McLaren in her 1992 report: Reducing Reoffending: What Works Now?)

Despite the evidence that programmes can be effective with some offenders, it is useful to bear in mind the many other influences on people's lives. A consistent view to emerge from interviews conducted by Leibrich with people who had served the sentence of supervision, was that programmes delivered by the criminal justice system could only have a limited effect on reducing offending given these other influences. It was also clear that change is an individual process, and that:


People change when they want to and are able to change. Attempts to coerce or force change on individuals are really doomed to failure. It is having an understanding of the reasons for their change that confirms change in an individual.
(Leibrich 1993, p228)

This illustrates the problematic nature of any regime which keeps people in programmes until they are ‘rehabilitated’, that is, attempts to force the change.

The above discussion indicates that some interventions will be effective in reducing recidivism for some offenders. The key is ensuring that interventions conform to the growing body of knowledge as to the principles of effectiveness, and that they are appropriately matched to offenders. This suggests a continued justification for providing rehabilitative programmes for sentenced offenders. The question at issue in this paper, however, is the place of rehabilitation as a principle or aim of sentencing. Should sentencers use this body of knowledge as the basis for deciding on the appropriate sentence for individual offenders?

3.4.5. Current views on rehabilitation’s place in sentencing

The question of rehabilitation’s place among sentencing aims and principles can be addressed by looking at some overseas examples. For instance, the Canadian Sentencing Commission concluded that only non-custodial sentences should be imposed for rehabilitative purposes. This view appears to be founded on the notion that the use of custodial sentences for rehabilitative purposes would require individualisation to such an extent as to create unwarranted disparity in sentencing. Their recommendations included the provision that “a term of imprisonment should not be imposed, or its duration determined, solely for the purpose of rehabilitation” (Canadian Sentencing Commission 1987, p154).

The England and Wales Criminal Justice Act 1991 clearly associates rehabilitation with community-based sentences, although this is within the confines of proportionality. Section 6 states that selection among the various community-based sentences should be on the basis of their “suitability for the offender” and the seriousness of the offence, and s8 identifies “rehabilitation of the offender” as one purpose of the sentence of probation. These rehabilitative considerations only become relevant when it has been decided that a community-based sentence is proportionate to the seriousness of the offence.

Less specific were the determinations of the Victorian Sentencing Committee. They recommended that the sentencing system as a whole should, among other goals, provide for “sentences that facilitate the rehabilitation of offenders”. At the level of individual sentencing decisions, rehabilitation may justify certain sentences in certain circumstances (Victorian Sentencing Committee 1988, pp119 &120). These recommendations are reflected in the Victorian Sentencing Act 1991.

There is now plenty of research literature which demonstrates that, to the extent that rehabilitation is effective, it is likely to have the most significant impact on high-risk offenders. This presents a dilemma, because most overseas sentencing legislation in respect of rehabilitation – including developments such as diversion schemes which New Zealand has – is designed for low-risk offenders, for whom rehabilitative efforts have largely proved unsuccessful.

3.4.6. Summary

The difficulties of making rehabilitative needs the (or a) primary factor in sentencing decisions, and the (or a) goal of sentencing have been outlined above, particularly in relation to indeterminate sentences, which are the logical outcome of such a policy. Further issues arise in respect of offenders who do not perceivably need rehabilitation, or for whom no known programme is available. A rehabilitative basis for sentencing would require judges to have a range of information about the offenders’ needs, and about the programmes which are available to address them, including information on their success rates. The existence of a sufficiently wide range of programmes is unlikely, given existing knowledge and the variety of offending related needs likely to confront the sentencer. As von Hirsch comments, fully rehabilitative sentencing would require programmes which could be:


relied upon to decide sentences routinely – that can inform the judge, when faced with the run-of-the-mill burglary or car theft, what the appropriate sanction should be, and that provide even a modicum of assurance that the sanction will contribute to the offender’s ceasing to offend.
(von Hirsch July 1990, p403)

The evidence is sound for provision of rehabilitative programmes remaining a legitimate aim of the corrections system irrespective of whether it is a component of the sentencing decision. Indeed, there are good arguments for seeking to use prison time productively by encouraging inmate involvement in programmes. This evidence also supports the rehabilitative focus of the current sentences of community programme and supervision.

3.5. Restitution

Restitution is based on the premise that the offender should put right the wrong done by his or her conduct. This aim is often given effect through a reparation or compensation order which may be imposed as part of sentencing. As well as monetary payments to the victim, restitution may involve an apology or a culturally specific act of recompense. The offender may perform a service for the victim or for a public or charitable body nominated by the victim, or make a donation to a nominated charity. Service to the community or donations to charity may also be appropriate when there are no identifiable victims.

The focus on restitution is in keeping with recently increased recognition of victims’ rights, and the need to acknowledge the loss and suffering of crime victims. Restitutional sentencing addresses at least two of the factors identified in victims literature as important steps in helping victims to restore their sense of self worth. (See for instance Daubney 1988, p14; Lee and Searle 1993, p44). It provides recognition of the harm done to the victims, and they receive an actual payment or service in compensation for this harm.

The principle of restitutional sentencing is a central element in many restorative justice programmes. Often the restorative principle extends beyond reparation orders to encompass a restorative process aimed at agreement between the victim and the offender, and their communities as to how to restore the balance and make good the harm caused by the offence. The Ministry of Justice has recently issued a discussion paper on restorative justice options for New Zealand (see Ministry of Justice 1995). For further discussion of victims’ roles in sentencing see Chapter Nine of this paper.

The issue dealt with in this section is whether the principle of restitution to direct victims, and possibly also to society, should be a guiding rationale and a primary aim of sentencing decisions.

3.5.1. Victim focus

Restitution places the victim and what the victim has suffered at the centre of the sentencing process. This contrasts with the other sentencing rationales and aims, which focus on the offender and society as a whole. (The offender focus relates to his or her culpability, the risk or harmfulness of the offence, the likelihood of future offending, propensity to be deterred, and rehabilitative needs. Society’s needs are to denounce past behaviour, deter or prevent future offending, and keep dangerous and persistent offenders out of circulation.) Insofar as restitution has a focus on the individual offender it is in respect of his or her acceptance of responsibility, expression of remorse, and willingness and ability to make recompense for the harm done. The wider society may be recognised as a secondary victim, or the primary victim in some cases. The interests of society are further served by restitution because it helps ensure ongoing victim co-operation with the criminal justice system in terms of reporting crimes and giving evidence.

Unlike deterrence, incapacitation, and rehabilitation, restitution’s primary aim is not to prevent or minimise future crime. (This is nevertheless claimed as a secondary benefit, as noted at 3.5.2). It is perhaps most similar to just deserts in that it is oriented towards the immediate past offence. The actual consequences of the crime are the crucial element in restitution, whereas just deserts is additionally concerned with offender culpability. In common with just deserts, one justification for restitution is founded on the benefits and burdens model (see 3.1.1). An offence disrupts the sense of social equity existing between the victim and the offender, and thus establishes a debt or obligation from the offender to the victim. Fulfilling the victim’s right to restitution is the primary concern, although punishment of the offender may be a secondary effect (see Barnett 1977, pp364–9, 381; Galaway 1977, p342).

The victim is also central at the practical level as he or she must provide the information necessary to the assessment of damages. Similarly, in some versions of the restorative justice model, the ideal is for the victim to actively participate in the negotiation of the restorative agreement. In each case, the victim is given a voice through the opportunity to tell the court or the mediation conference how the crime has affected him or her.

3.5.2. Offender benefits

Although primarily focused on putting right the harm done to the victim, restitution is also advocated as beneficial in terms of offender rehabilitation. The need to make recompense for the harm done is a way of making offenders face up to the consequences of their offending and accept responsibility for their actions. This is often seen as crucial to turning offenders away from crime. The Canadian Daubney Committee in its consideration of sentencing issues noted that:


In many cases, the constructive accomplishment of making restitution improves the offender’s self-esteem and behaviour. It “gives the offender a chance to earn and repay honestly what he [or she] stole or destroyed .... The lack of a connection between a small theft and months in prison deprives most offenders of an understanding of justice and leaves them feeling a sense of having been wronged. Restitution relates what they did to what they must do.” Moreover, in its absence, offenders take little or no responsibility for their behaviour.
(Daubney 1988, p98)

This view has been clear in the New Zealand courts. For instance, in R v Harris (CA 350/90, 19 March 1991) [119] BCL 706, the Court of Appeal, per Thorp J implied that reparation is a way of “requiring the [offender] to accept responsibility for the full results of his actions.”

Burt Galaway has argued that the payment of compensation can counter the neutralisation or self-justification techniques which enable offenders to evade responsibility for, and the consequences of, their actions. The process of reaching agreement and paying compensation makes it difficult for the offender to continue to deny the harm done, minimise victim suffering, and blame or derogate the victim (Galaway 1977, p342). Similarly, it is argued that restitution can be beneficial to rehabilitation because it is something offenders do rather than something they have done to them (Barnett 1977, p370).

3.5.3. Restitution in New Zealand

In New Zealand the principle of restitution has been most clearly recognised through the sentence of reparation, which was introduced in the Criminal Justice Act 1985. This replaced the previous compensation order. Reparation was originally to compensate for loss of, or damage to, property as the result of an offence. In 1987 the sentence was extended to cover compensation for emotional harm.

Section 11 of the Criminal Justice Act as amended in 1993 provides that reparation must be considered “in every case”, and where there is loss of, or damage to, property or emotional harm, reparation must be imposed unless it is “clearly inappropriate”. This strengthens the previous presumption in favour of reparation. Hall notes that this presumption is only rebutted when there are disputes as to liability or amount which cannot reasonably be resolved in the context of the criminal proceedings, or when the offender does not have reasonable means to pay in the foreseeable future (Hall 1993–97, D/121). Even before the 1993 amendment, the Court of Appeal, per Casey J, has held consideration of reparation to be integral to sentencing, stating that:


the Court is now obliged, as part of the sentencing process, to consider reparation and to go into the questions of the amount and the offender’s ability to pay as fully as it can, in terms of ss 22 and 23.
(R v O’Rourke, Court of Appeal [1989] NZCA 244; [1990] 1 NZLR, 155, 158)

The presumption in favour of reparation is further reflected in sections 22 (7) and (8) where reparation is given precedence over a fine. Section 22 (7) provides that where the judge considers both a fine and reparation to be appropriate but the offender has insufficient means to pay both, then reparation alone should be awarded. Under s22(8), where a fine and reparation are both imposed, any money paid by the offender is to be applied first to settlement of the reparation.

Two further reparative provisions are provided for in the Criminal Justice Act: sections 12 and 28. Section 12 states that the court when sentencing may take into account an offer of compensation to the victim (either financial or by way of work or service) which has been made by, or on behalf of, the offender. When determining the account to be taken of such an offer, the court may consider whether it is accepted by the victim as “expiating or mitigating the wrong”, and sentencing may be adjourned until the money has been paid or the service performed.

The potential impact of an offer of amends is illustrated in R v Thacker (CA 392/90, 22 March 1991) [1991] BCL 789, where the Court of Appeal reduced a sentence of imprisonment for receiving of stolen property in consideration of a $16,000 compensation payment. The Court noted that the “payment went a long way towards absolving [the offender’s] guilt and making good the loss he had caused”. The offer of amends is but one factor to be taken into consideration and it will not always reduce the sentence. For instance, in R v Honan [1988] NZCA 109; (1988) 3 CRNZ 532, the Court of Appeal stated that was not appropriate that an offer of payment by one of the co-offenders in a serious arson case should discount the imprisonment term of that offender.

Section 28 of the Criminal Justice Act, which the Court must consider whenever it imposes a fine on an offender and the victim has suffered physical or emotional harm as a result of the offence, provides that all or part of a fine may be paid as compensation to the victim. The statutory limitations on the use of this provision are that the victim must not have contributed to the offence in any way, and there must be a causal link to the harm suffered. The courts have indicated that fines should not be imposed solely for the purpose of compensation, nor the amount increased to allow for such compensation. (See for instance McGrath v Police (High Court, Timaru AP60/92, 7 Dec 1992, Holland J) [1993] BCL 653 and Heenan v Ministry of Transport [1989] NZHC 920; (1989) 5 CRNZ 229).

Forms of restitution may also be agreed as part of the plans negotiated at family group conferences in the children and young persons’ jurisdiction, and as part of the conditions of the police pre-trial diversion scheme.

3.5.4. The use of restitutional sentencing provisions in New Zealand

Analysis of sentencing statistics indicates that in 1995, 7.9 per cent of all convictions resulted in a sentence of reparation. Property offences were the most likely to result in a reparation sentence, with 24 per cent of property convictions resulting in reparation. Percentages for other offence types were much lower, with violent offences (3.1 per cent) being the next highest category.

The data does not enable identification of whether the reparation was imposed for property loss or damage, or for emotional harm. Earlier research indicates, however, that reparation is most often used to address loss of, or damage to, property. Examination of emotional harm reparation reports carried out as part of the study and comments made in the course of interviews, suggest these reports seldom deal centrally with the amount of reparation. The focus was instead on the effect of the offence on the victim (Galaway and Spier 1992, pp94–102. This research was based on 1988 and 1989 data). In this sense, the reports fulfil a similar function to victim impact statements, which are supposed to be presented by the prosecution for the judge to take into account at sentencing.

In 1995 the median amount of reparation imposed for property offences was $160 (the average came to $797), with the largest award being $100,000 for fraud, and the smallest being 40 cents, also for fraud. Reparation is usually imposed along with another sentence. 1995 data showed that 62 per cent of property offences where reparation was imposed were also subject to a community-based sentence; periodic detention in 35 per cent of these cases (Spier 1996 pp137–42).

3.5.5. Public opinion on restitution

Burt Galaway conducted New Zealand public opinion studies with respect to restitution in 1984 and 1989. The latter questionnaire substantially replicated the former. The 1984 study found a trend towards acceptance of restitution rather than imprisonment as a sanction for serious property offences, provided that the restitution specified was seen as fair. The results of the 1989 survey suggested, however, that there had been some moderation of public acceptance of reparation as a mechanism for further reducing the use of imprisonment (Galaway and Spier 1992, p130). The 1989 survey (and a survey of victims from court files) did not, however, indicate support among crime victims for the imprisonment of property offenders. The results suggested that “victims appear to be more interested in reparation than imprisonment” (Galaway and Spier 1992, p144).

The results of a 1994 Listener/Heylen poll included agreement by nearly 73 per cent of those surveyed that heavy fines and/or loss of property should be imposed on offenders. It is not clear whether this was for the purpose of confiscation of the benefits of crime, punishment, or compensation to victims. Some support for the last option may be suggested by the finding that over half of the respondents thought that offenders should meet with their victims and, where possible, put things right.

3.5.6. Fairness

While restitution seems to offer considerable benefits if it can indeed address victims’ needs as well as sanction and rehabilitate the offender, there is considerable potential for conflicts between these various aims. The first issue is fairness. Does this mean fairness to the victim in terms of compensation; or fairness to the offender in terms of the sentence received relative to the harm done and the offender’s culpability, the sentencing of co-offenders, sentencing for similar offences, and the offender’s means? Fairness to the offender could be discounted in favour of fairness to the victim on the basis that the victim is the one who has suffered, whereas the offender as perpetrator has abrogated the right to fairness. But to what extent should the principle of fairness to offenders be abandoned?

If the emphasis is solely on the offender making amends, differences in sentencing levels may result from differences in offenders’ means. Offenders with sufficient resources relative to the costs of their crime would be able to make recompense, but what of offenders without means? Should they continue to receive the traditional penalties which have greater associations with punitiveness and denunciation of behaviour? Hall cautions on this point in his observation that in giving effect to s12 of the Criminal Justice Act (an offer of compensation), the courts “should seek to avoid any suggestion that an offender is enabled to buy his or her way out of a more onerous sentence”, or a conviction (Hall 1993–97, D/127). The influence of differences in offender means on the award of reparation also has potential for unfairness between victims. The victim of a well-off offender may receive compensation while victims of impecunious offenders do not.

An alternative is to view restitution as victim compensation only, and therefore having no influence on other sentences imposed. This would be consistent with the view of restitution as the equivalent of the civil damages which would have been awarded had the victim sued the offender. While the equivalence of restitution and civil damages is theoretically consistent, the fact that it is imposed as part of the sentencing process and will involve loss of money or time to the offender, means that it is likely to be perceived by the offender as a sentence or punishment. This seems to be acknowledged by criminal justice professionals. For instance, in the Galaway and Spier study, Sentencing to Reparation: Implementation of the Criminal Justice Act 1985, judges and probation officers mildly agreed that offenders who make reparation should receive less punishment than offenders who do not make reparation (Galaway and Spier 1992, p85).

To ensure that this mixing of punishment and compensation does not occur, it could be argued that claims for restitution should be dealt with in the civil courts. This ignores the expense and trouble the victim would have in taking a civil action, and would be a backward step in the gradual process of making the criminal justice system more ‘victim-friendly’.

It may be more likely that the offender will comply with the order if he or she sees it as fair in relation to the offence, not an undue punishment when combined with any other sentence(s) received for the same offence(s), and consistent with the total sentences of any co-offenders. In this sense fairness to the offender is beneficial to the victim as it increases the likelihood that the debt will be satisfied. It is possible that the offender will be more likely to accept responsibility and face up to the consequences if he or she does not perceive the penalty as imposing an excessive financial burden. One of the conclusions of the Galaway and Spier study was that “Reparation must be reasonable and perceived as fair if the sentence is to be effectively enforced” (1992, p172). Similarly, in the survey of those who assist victims, respondents noted that reparation is only viable if it is within the offender’s means (Lee and Searle 1993, p16).

3.5.7. Assessment of harm

Restitution is sometimes criticised on the basis that it does not sit well with the mens rea or criminal intent concept which is central to criminal law. In its focus on compensation for damages rather than sentencing for “bad intentions as manifested in ... bad acts”, restitution is more in keeping with tort law. The issue arises most in relation to attempt offences. Barnett argues that restitution can deal with these situations by focusing on the harm that is actually done through the attempted offence. The examples he gives are attempted murder which may well result in serious assault, or attempted burglary which may result in trespass. If the attempted offence results in some violation of rights, including the creation of fear, compensation is due. If there is no rights violation, under a restitutional system there is no offence as no right to compensation has been created (Barnett 1977, pp375–6).

3.5.8. Practical issues

One of the key problems with monetary restitution is that many offenders have few financial resources. If the loss or damage amounts to a substantial cost it may be impractical for the offender to pay, or payment may take a lengthy period. This creates enforcement issues, and difficulties for the victim. In the Lee and Searle survey, most respondents cited lack of payment as a significant problem with reparation, and some indicated that slowness or problems of payment contributed to further distress and frustration for victims (1993, pp15–17). These practical limitations on the sentence are also indicated by the analysis of compliance with reparation sentences imposed in the first three months of 1988. The results show that 58 per cent of offenders were in full compliance after one year, 20 per cent were in partial compliance, and 21 per cent had paid no reparation. The results for time payment of reparation were better than for lump sum payment; 62 per cent of the former had paid in full compared with 38 per cent of the latter (Galaway and Spier 1992, p146). It was found that the larger the amount of reparation due the less likelihood there was of full compliance after one year (Galaway and Spier 1992, p149).

Similarly, the Galaway and Spier reparation study showed that, in determining the appropriateness of reparation, the most common consideration mentioned by judges was the offender’s ability to pay, sometimes qualified by within a reasonable period of time. Judges and probation officers were, nevertheless, on the whole of the view that it is possible to develop reparation plans for unemployed offenders (Galaway and Spier 1992, p82–3).

The New Zealand courts have indicated that reparation orders must be realistic in relation to the offender’s ability to pay and the time it will take to make payment. Although there is provision for orders to be made by instalments, payments which extend over a number of years have been held to be inappropriate. In Rihari v Department of Social Welfare (1991) 7 CRNZ, 590, Anderson J stated that:


The authority of the law is not realistically maintained by the making of orders which cannot realistically be capable of compliance. Nor is it appropriate in modern times that people should effectively be bonded debtors throughout their lives.

Ensuring that reparation is within the offender’s means is a particular problem where the offence is serious enough to warrant imprisonment. A custodial sentence is of course incompatible with working to make payment over time, unless scales of payment for work done in prison were high enough to allow for it. The courts have on occasion combined prison sentences and reparation for serious offences, but with the caveat that it is realistic given the offender’s means. In R v Raymer (CA 446/90, and 12/91, 22 July 1991) [1991] BCL 1703 reparation for the full amount of the money defrauded (nearly $800,000) was combined with a sentence of two years imprisonment. In R v Jarvis (CA 306/86, 2 March 1987) [1987] BCL 378, on the other hand, the Court of Appeal quashed an order for reparation which accompanied a long sentence of imprisonment with the observation that:


The Court cannot justifiably make an order for payment, enforceable by further penal sanctions, against an offender who faces a long prison sentence and who must be accepted as having neither assets nor tangible financial prospects.

Consideration of the offender’s means is clearly a crucial aspect of case law as it has developed around the sentence of reparation. As such, the practice reflects the major limitation on the use of this sentence and on the application of the principle which it represents (at least with respect to restitution in monetary terms).

3.5.9. Overseas views on restitution

The Canadian Sentencing Commission recommended that restitution be one of the secondary principles within an overall framework of just deserts. Along with addressing the other secondary principles of denunciation, deterrence, incapacitation, and rehabilitation, sentencing should consider “providing redress for the harm done to individual victims or to the community” (Canadian Sentencing Commission 1987, p154–5).

The Australian Law Reform Commission accorded restitution greater importance by provisionally proposing that it should be the primary consideration along with just deserts. The Commission stated that justice to victims requires both recognition of the harm done to them and redress for that harm where possible. It further suggested that the offender’s actions to make good the harm done may mitigate the deserved sentence (Australian Law Reform Commission 1987, pp17–18).

The Canadian Daubney Committee was particularly strong in advocating restitution’s place among sentencing principles and purposes. The Committee stressed offender accountability, and recommended that sanctions be aimed at requiring or encouraging offenders to acknowledge the harm done to victims and to take responsibility for that harm. Sentencing should, among other things, take account of reparative actions or proposals made by the offender, and facilitate victim-offender reconciliation at the request of victims (Daubney 1988, p55). The Committee advocated further development of community-based sentences, with a primary focus on programmes which encourage the offender to take responsibility for their criminal conduct and make restitution to the victim (Daubney 1988, p50). With respect to the sentencing of individual offenders, they recommended restitution orders where there is an individual victim, and fines when the loss or damage is sustained by public institutions or to public property, and that restitution have priority over fines when the offender has limited means (Daubney 1988, p101).

3.5.10. Summary

There is a fundamental difference between restitution and the other sentencing rationales and goals discussed in this chapter because restitution is mainly focused on the victim rather than the offender. The primary interest is in acknowledging, and putting right the harm done by the offence, although rehabilitation of the offender may be a secondary effect through the process of forcing the offender to face up to the consequences of his or her offending.

In the New Zealand adult criminal justice system restitution is mainly achieved through the sentence of reparation. The lack of resources of many offenders and/or their apparent unwillingness to pay in many cases place limitations on the use and success of this sentence. Further limitations are the incompatibility of restitution with the other rationales, especially when they call for a more severe sentence, particularly a custodial sentence. The principle of equality before the law (see 4.3) makes it important that monetary restitution does not provide a means for wealthier offenders to buy their way out of other sentences. For reasons of fairness and the practical needs of enforcement, the amount of monetary restitution imposed should be at a level which is reasonable to the offender’s means and the offence seriousness.

Beyond the sentence of reparation, the restitutional aims of the sentencing system may also be addressed in the context of restorative justice.

3.6. Discussion Points

As stated at the outset, this chapter has examined the rationales and goals of sentencing to provide insights into how a society is best served by its sentencing system, and what can reasonably be expected of such a system depending on the goals and rationales pursued. Each of the rationales and goals reflects a certain moral standpoint and raises ethical issues as to the coercive power of the state in relation to the individual. The goals which are designed to prevent future offending (deterrence, incapacitation, and rehabilitation) of necessity also call for evidence on effectiveness for their justification.

The question arises as to whether it is possible to have a coherent sentencing structure which encompasses all of these rationales and goals; whether one goal or rationale alone should be pursued; or a hierarchy of rationales and goals created, perhaps involving specified circumstances under which one or other should have precedence over the others.

Those who argue for a hierarchy of rationales and goals point out that they are often in conflict with each other. For instance, just deserts focuses on the gravity of the current crime, while incapacitation is more associated with past record and social factors as predictors of future behaviour. If sentencers are able to choose the particular rationale or goal to apply in each case, inconsistencies are bound to arise. Thus von Hirsch maintains that:


In the absence of an explicit rationale, the system may not serve any purpose: it may, for example, fail to punish proportionately while still failing to predict risk. Indeed, a chief defect of discretionary sentencing systems is the lack of a coherent rationale or policy.
(quoted in Sallman 1991, p134)

In the process of creating any such hierarchy it is necessary to develop “a ‘shared set of expectations’ among sentencers about what sentencing can achieve and how”. This includes recognition of “the reality and limitations of the sentencing process”, and accordingly decisions as to the relative importance of the various rationales and goals (Doob in Sallmann 1991, p141).

Those who argue against the establishment of a hierarchy of rationales and goals do so on the basis that the exercise of discretion enables judges to respond to the individual circumstances of each case, and in so doing achieve a sentence best suited to the offence, the offender, and the needs of society. It is argued that any system which pursues fairness by limiting this discretion will result in arbitrary distinctions and hence, unfairness.

Aside from questions surrounding a structured hierarchy, there are questions as to the validity of the rationales and goals themselves. Three of those discussed in this chapter depend for their validity on the answers to empirical questions which have to date proved difficult to be sure of. Deterrent sentencing requires a knowledge of what will deter whom and under what circumstances. The effectiveness of incapacitation depends on the ability to make judgements as to whether, how frequently, for how long, and how seriously an individual will offend in the future. Rehabilitative sentencing requires a knowledge of the causes of an individual’s offending and the way to address those causes, as well as the availability of a programme known to be successful in achieving this.

Just deserts on the other hand, requires a series of moral decisions as to the seriousness of offences and the appropriate means to denounce the behaviour and redress benefits and burdens, while maintaining a law-abiding society. Offences must be defined and ranked according to their seriousness, with consideration of the factors which make an offence more or less harmful, and an offender more or less culpable, and assessments as to the level and type of sentence suitable for different offences, including more and less serious versions of these offences. These rankings should be consistent with contemporary community and professional opinion.

Restitution requires an assessment of the harm done to the victims and how best to restore that, taking account of the wishes of the victim and the means available to the offender.

The empirical difficulties of deterrence, incapacitation, and rehabilitative sentencing, and the implications of ‘getting it wrong’ suggest that these goals do not have strong merit as overall guiding principles of a sentencing system. The existence of some very dangerous offenders does, however, suggest that the sentencing system would be failing in its duty to contribute to public protection if it were to abandon the possibility of an incapacitative goal in specified circumstances. (This is discussed further in Chapter Seven on the sentencing of dangerous offenders). Similarly, the growing body of evidence that some rehabilitative interventions can work with some offenders, and the humanising effect that rehabilitative programmes may have within the administration of sentences suggest that rehabilitation is not a goal to be abandoned.

The declaration of just deserts as the primary rationale would confirm the existing practice of the courts to a large extent. Just deserts does not claim to do anything more than maintain a general level of respect for the law and punish on a proportionate and unbiased basis. Many people may believe that this is too restricted and negative to be the objective of the entire sentencing system. One possibility is to use just deserts as a framework within which other objectives may be pursued. For instance, the desert scale would determine the appropriate level of penalty, but some elements of the totality of the sentence could be met through either monetary or non-monetary restitution as negotiated with the victim. Where a prison sentence is merited on the desert scale, rehabilitation should be pursued as part of the administration of the sentence. Where desert indicates that a community-based sentence is required, the offender’s rehabilitative needs and prospects could be a basis for choosing between options of equivalent severity. Such a system would probably require that the secondary goals (rehabilitation and restitution) be ranked in order that conflicts between them can be resolved. In the interests of public safety, the desert regime would need to allow for incapacitative exceptions for offenders assessed as likely to pose an extreme danger to specific individuals or the public in general.

3.6.1. Issues for consideration

The major issues which arise from the discussion in this chapter include:

(a) What should the sentencing system as a whole aim to do?

(b) What should be the basis of individual sentencing decisions?

(c) Should there be a single overriding or leading rationale as the basis of sentencing?

(d) Should more than one or all of the current rationales and goals of sentencing be retained?

(e) Is it desirable/possible to create a guidance structure which indicates the order of priority of the rationales and goals? What would that hierarchy be?

(f) Should some of the rationales and goals be restricted to certain circumstances?

4. Other Sentencing Principles

4.1. Introduction

This chapter looks at principles which further guide the courts when imposing a sentence in accordance with whatever sentencing goals or rationales have been selected, or with how they have been ranked. The principles help to determine the type and amount of sentence within the structure set by the goals and rationales. Many of these principles are consistent with several fundamental goals or rationales. They are often categorised as follows:

The major difficulty with their application, as is apparent from the discussion below, is the potential for conflict. By following one principle, another or others will often be breached. Any attempt to give sentencing a systematic basis needs to resolve these conflicts, or at least provide a rational basis for choosing between conflicting principles in particular cases.

4.2. Restraint/Minimum Intervention

This principle argues for the use of the least intrusive and least severe sanction possible, given the circumstances of the offence and the offender, and the intended aims of the sentencing system. This means that where possible monetary penalties are imposed rather than community-based sentences, community-based sentences are used in preference to imprisonment, and terms of imprisonment, where imposed, are as short as possible. The principle is founded on the humanitarian view that the pain of punishment should be minimised as far as possible. On a more pragmatic line, it connects with the principle of using the least costly sanction possible (see section 4.5). The focus on the sentence of imprisonment means the principle is most frequently expressed in terms of minimisation of the use of imprisonment, or imprisonment as the last resort.

The Victorian Sentencing Act 1991 sets out the principle with respect to all types of dispositions (custodial, intensive correction orders, suspended sentences, community-based orders, fines, dismissals, discharges, and adjournments), including stating the hierarchy of these dispositions (s7). The general rule is that the “court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.” The Act goes on to spell out for each of the particular types of sentences and orders that they should not be imposed unless in the opinion of the court the purpose of the sentence cannot be achieved by a less severe type of sentence (s5(3)–(7)).

4.2.1. New Zealand law

This guiding principle in respect of imprisonment is stated in s7 of the Criminal Justice Act 1985. This directs that when sentencing a person convicted of an offence punishable by imprisonment, the courts shall “have regard to the desirability of keeping offenders in the community so far as that is practicable and consonant with promoting the safety of the community”. The use of the sentence of imprisonment is thereby limited to cases where it is not practicable to give an alternative sentence and/or imprisonment is necessary for the safety of the public.

The phrase “so far as that is practicable” could concern assessment of whether the person is able and willing to abide by the conditions of a monetary or community-based sentence and unlikely to reoffend. (This approach is spelt out in its converse form in S9 of the Act, which states that the court shall not be limited in imposing custodial sentences where it is satisfied that offenders are “unlikely to comply with any other sentence ... that would otherwise be appropriate”.) Alternatively, it could be that where there are support services from family or community organisations to assist and supervise the offender, then that person should not be imprisoned. Section 7 goes on to state that any sentence of imprisonment shall be as short as is “consonant with promoting the safety of the community”. The courts have interpreted promoting the safety of the community to mean not only ensuring protection from the particular offender, but also deterring other persons from committing similar offences (Hall 1993–97, D/102).

4.2.2. Imprisonment as the sentence of last resort

This “general limitation on imprisonment”, as s7 is entitled, reflects a view that imprisonment should be a last resort in dealing with offenders. This view has been particularly prominent in the last three decades. For example, the second stated term of reference for the 1981 Penal Policy Review Committee was to “consider the means by which the incidence of imprisonment can be reduced to the greatest degree consistent with the maintaining of public safety” (Penal Policy Review Committee 1982, p10). In its report the Committee was adamant that imprisonment should be used as a penalty of last resort and that prison terms should be as short as is consistent with public safety (Penal Policy Review Committee 1982, pp43, 48).

Several influences have been responsible for this policy view gaining currency but generally it can be attributed to a decline in the ideological popularity of imprisonment. This decline stems partly from a recognition of the grave and extreme severity from a humanitarian point of view of an action which deprives individuals of their liberty and removes them from society to a place of confinement. In the early 1970s a school of criminologists argued for the abolition of imprisonment as a sanction. Although their view clearly has not prevailed, their supporting arguments involving the inefficacy of imprisonment have remained persuasive. These include the argument that prisons are rarely able to reform or rehabilitate the offenders in them, partly because of the alienating environment of prisons. It is asserted that many inmates are not deterred from future offending by their experience of imprisonment and, more contentiously, that prisons for various reasons (including the effects of imprisonment on the character or personality of some inmates) may actually cause crime. This is argued on the basis of findings that a person is more likely to be reconvicted the more custodial sentences they have served. Furthermore, imprisonment is viewed as a degrading loss of basic freedoms in an unnatural environment (Ashworth 1992, pp212–7).

Another major influence is the increasingly high total capital and operating costs of prisons, and the cost to the state of supporting the dependants of those in custody. These issues are further discussed in section 4.5. The social costs of imprisonment have also gained greater recognition, not only for the inmates but also in terms of the great personal strains placed on family and domestic relationships.

In addition to arguments used against imprisonment itself, there are arguments in favour of shorter rather than longer custodial sentences. A key assertion is that, to the extent that imprisonment may act as an individual deterrent, it appears to do so irrespective of the terms involved (i.e. longer sentences for particular crimes do not lead to reductions in those crimes), and that it is the first six months of prison life that are the most traumatic for the majority of inmates, who after that can generally accept the routine.

The above reasons were all discussed in the report of the Penal Policy Review Committee (1982, pp37–43), and have been responsible for the expansion of non-custodial sanctions. The irony is that, despite the widespread international acceptance of these viewpoints, prison populations have been increasing in many countries in the last two decades. One reason for that phenomenon is the simultaneous working of another policy, that violent offenders should always be imprisoned and that to safeguard the general public such offenders should be incapacitated for long periods. In other words, there is a group of serious offenders for whom alternatives to imprisonment are not considered appropriate. Indeed, in New Zealand s7 of the Criminal Justice Act (discussed above) must be read subject to s5. This rules that where an offence involves serious violence, the discretion not to imprison is limited to the finding of “special circumstances”, and cannot therefore be exercised on grounds of the general desirability of avoiding the use of custodial sentences.

Other reasons why the principle of restraint has been frustrated include matters of practice and organisation within the criminal justice system, and theoretical and political pressures. Some examples are:

4.2.3. Issues

The principle acts as a general restraint on the overall level and severity of sentences. If it is applied in individual cases to ensure that the sentence is no more than is necessary to achieve the particular aim, conflict with the principle of equality before the law is likely. For instance, if the aim is to prevent reoffending, then for some offenders a community-based sentence may be sufficient, whereas the background and characteristics of another offender convicted of the same offence may suggest that imprisonment is required.

Secondly, in order to apply the principle that each sentence must be no more severe than is necessary to achieve the purposes for which the sentence is imposed it is necessary to establish the aim(s) of the sentencing process in respect of particular offences/offenders. Furthermore, the courts have to be clear as to what the aim of each type of sentence is and that needs to be consistent from case to case.

4.3. Equality Before the Law

This principle argues that certain personal characteristics not pertaining to the offender’s crime should be excluded and considered irrelevant to sentencing decisions. Consistent application of the principle is dependent on there being a general consensus as to what constitutes such characteristics. The New Zealand Bill of Rights Act 1990 includes “the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993” (s19). The Human Rights Act prohibits discrimination on the grounds of sex, marital status, religious or ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, and sexual orientation (s21). If it is considered that equality before the law is a critical aspect of that right then sentencing decisions should not differentiate offenders according to any of the above grounds. There would probably be fairly widespread agreement on this. In the United States some sentencing guidelines produced by Sentencing Commissions (e.g. the Minnesota and Federal guidelines – see section 11.4) provide a list of factors which must be excluded from consideration in sentencing. These generally include age, race, sex, and marital status (along with others). Furthermore, it is sometimes argued that the offender’s financial situation and employment status should not be taken into account in sentencing.

4.3.1. The offender’s financial situation

A blanket exclusion of this factor is problematic. Most people would agree, and the courts have stated, that an offender should not be able to avoid a prison sentence by reason solely of being in a position of being able to pay a significant financial penalty (see Markwick (1953) and Copley (1979) quoted in Ashworth 1992, p180). It may, however, be impractical to impose a large fine, which would otherwise be appropriate, on a poor person who has little chance of paying it, or could only do so over an extremely lengthy period of time, so that an alternative sanction needs to be considered. In New Zealand there is in fact a legal obligation to take into consideration “the means and responsibilities” of the offender when deciding the actual amount of any financial penalty (Criminal Justice Act 1985, s27). A more extreme example of this obligation is the system of unit fines which exists in a number of European jurisdictions and was introduced in England and Wales in 1991, but repealed in 1993. Such systems quite explicitly take the offender’s means into account in an effort to ensure that offenders convicted of like offences are deprived of an equivalent proportion of their disposable incomes as punishment for the offence.[5] The principle here is one of equality of impact (see 4.4 below) at the expense of strict equal treatment by the law.

The same arguments as to means and practicality apply to reparation orders. The New Zealand courts have indicated that reparation orders must be realistic in terms of the offender’s ability to pay (see 3.5.8). This has implications in terms of equality before the law if reparation to some extent offsets the other sentences imposed. As with fines, the issue is that the wealthy should not be able to buy their way out of heavier sentences (see 3.5.7).

Strict equality before the law is, however, applied in New Zealand in respect of the large number of fixed fines (infringement fees), mainly for traffic offences, which do not vary according to the means of the offender.

4.3.2. The offender’s employment status

In departure from the principle of equality before the law, the courts have interpreted the loss of employment following an offender’s apprehension as a mitigating factor in determining that offender’s sentence (Hall 1993–97, B/183). This would seem to result in a previously employed offender receiving a more lenient sentence than an unemployed offender for the same offence. Similarly, the courts may adjust the type or length of sentence downwards to prevent the offender losing his or her job, so that employed offenders are more likely to be fined than receive a community-based or even custodial sentence. It has been argued that this latter course of action is not discrimination against the unemployed, but that being employed is a valid element to take into account in determining whether it is practicable to keep an offender in the community and avoid imprisonment. This is an example of the principle of restraint taking priority over that of equality before the law (Ashworth 1992, p179). The justification is that since it is not possible to determine with certainty and exactitude what an appropriate punishment is in any given case on the basis only of the circumstances of the offence, then some practical considerations, such as regard for avoiding excessive use of imprisonment, can be applied on an individualised basis, even if it involves some inequality of treatment.

The same end of reducing imprisonment could be achieved without the same degree of unequal treatment by generally replacing sanctions of imprisonment with community-based sentences for particular offences. If there are to be discriminatory distinctions among individuals made by the sentencing system, then this departure from the long-standing principle of equality before the law needs a sound philosophical basis so as to retain the confidence of the community.

4.3.3. Racial bias

It is often claimed that sentencing practices discriminate against offenders from racial minority groups, particularly in the use of custody (see Chapter Ten). The strong possibility is that normal sentencing practices, while not overtly incorporating a racial bias, will reflect and not be able to correct earlier racially discriminatory decisions in the processes leading up to sentencing. There is also the possibility that if other stages in the criminal justice system are exhibiting a systematic racial bias (despite safeguards and racial awareness training) there is no singular reason why sentencing should be any different. It is possibly worth considering whether a guideline statement of principle on the matter of avoiding discrimination on the grounds of race in sentencing would alleviate the problem of actual or perceived discrimination in this area.

4.4. Equality of Impact

This principle conflicts with that of equality before the law, arguing instead that because all people are not equal in terms of social, economic, and personal circumstances, treating all people equally will result in injustices. It suggests the need to adjust sentencing to the particular circumstances of the offender, as in the already cited example of unit fines. At its most extreme the principle would lead to sentencing which discriminates positively towards the socially disadvantaged. As well as involving complex calculations, this would lead to major variations in sentences for the same offence. The principle could also justify ever-increasing terms of imprisonment for repeat offenders because of the ever-diminishing impact of prison on those who keep returning.

As a general rule sentences are ranked according to their impact on the ‘average’ person, and equality of impact is most often applied in the sense of preventing an offender with particular circumstances or characteristics from suffering unusual hardship if a normal sentence were imposed. This leads to a downward adjustment in the sentence (in terms of type or length of sentence). In this sense the principle is allied to concepts of mercy and humane treatment.

Relevant offender characteristics could include advanced age or bad health or disability. The latter two factors have certainly influenced the New Zealand courts on occasions to reduce terms of imprisonment, but on others they have refused to interfere with a sentence for these reasons (see Hall 1993–97, B/161/2–164 and B/170–171). There are no hard and fast rules in this area, with considerable discretion being available for what will sometimes be difficult choices. Other considerations which may constitute mitigating factors through this principle include:

There are variations between the English and New Zealand courts in these sorts of cases (see Ashworth 1992, p136 ; Hall 1993–97, B/183–191). These circumstances can also be dealt with through other mechanisms such as the exercise of the prerogative of mercy or special parole or early release provisions, which is particularly the situation of pregnant offenders (see s94 of the Criminal Justice Act which provides that the Minister of Justice may direct the early release of inmates who have given birth and inmates suffering from serious illness who are unlikely to recover) (Hall 1993–97, B/187/2–191).

4.5. Controlling Public Expenditure

In its simplest terms, this principle states that sentencers need to take into account the cost of administering sentences and, in its most extreme form, it advocates that the cost of sentences be kept within a particular level from year to year. Under some options involving this principle, sentencers cannot send offenders to prison once a fixed prison capacity has been reached (meaning that they must impose alternative sentences or defer imposing sentences of imprisonment until some inmates are released). Other suggestions include an annual allocation of prison space for each judge.

The Minnesota, Washington, and Oregon sentencing guidelines are tied to available (or foreseeable) corrections resources. As part of the resource constraint policy, penalties are reduced for some crimes when penalties are increased for whatever reason for others. Minnesota’s enabling legislation required the sentencing commission to take the state’s prison capacity into account, which was interpreted as meaning that the guidelines had to result in prison numbers coming under that capacity. The enabling legislation in Washington required the commission to assess the impact of their guidelines on prison resources, and draw up alternative guidelines which were consistent with current prison capacity if the original ones would result in this capacity being exceeded. The intention seems to have been that this resource constraint would oblige the commissions concerned to allocate prison sentences to the most serious offences and have non-custodial sentences for less serious offences (Kramer, Lubitz, and Kempinen 1989, p571). To enable the drafting of guidelines which will not result in prison capacity being exceeded the drafters must be able to accurately project the impact of such guidelines. This exercise will be easier or harder depending on the amount of discretion given to sentencers by the guidelines, that is the breadth of sentencing ranges for particular offence/offender combinations and the degree to which there is room to depart from the guidelines.

New Zealand does not have any legal provisions or case law which ties sentencing to available corrections resources or requires consideration of the resource implications of sentencing decisions.

The principle is a form of targeting of resources. Because the cost of imprisoning someone constitutes a significant economic burden on the state, it should be reserved only for those for whom cheaper options involving the offender remaining in the community are clearly not appropriate due to the risk the offender would constitute to society. This is simply a restatement of the principle of restraint, or at least a statement of one justification for that principle.

Community-based sentences are generally less costly than imprisonment, with fines less costly still and revenue earning. Several cautionary notes need to be sounded. The cost to be saved by not imprisoning X number of offenders for Y number of days will not be X multiplied by the average cost for each prisoner for each day. This is because about 84 per cent of the running costs of prisons (such as personnel and capital costs) are relatively fixed.[6] The marginal cost of imprisoning one more person in an existing prison is minimal, although at some point the incarceration of increasing numbers of offenders will exceed prison capacity and will require an additional institution (representing a high marginal cost). Similarly, a progressive reduction in inmate numbers will eventually affect personnel costs in each institution and then the number of institutions required.

The prison population is more likely to be reduced and savings achieved through courts imposing shorter sentences as against longer ones, rather than by imposing fewer shorter sentences. This means that economic reasons are not always going to be a good justification for using community-based alternatives to imprisonment, because they are more likely to replace short sentences (see Landreville 1995, pp43–5). This is particularly the case if the alternatives (such as electronic monitoring) are cost-intensive.

Obviously if community-based alternatives are simply used to supplement prison sentences there will be no savings, and there will be only limited savings if short prison sentences are replaced by long community-based sentences. Significant savings are only likely to be generated over the long term as the result of the cumulative effect of consistently using community-based and monetary sentences in cases where imprisonment would otherwise have been imposed.

4.6. Other Principles

Two other principles or concepts sometimes used to justify particular sentencing practices are justice and humanity. The concept of justice is taken to mean that the particular punishment should be appropriate to the offence and the offender, and that like cases should be treated similarly. The concept of humanity directs that punishment should not be cruel, inhumane, or disproportionate to the offence (Landreville 1995, p52). Thus stated, the two concepts appear to overlap and both have connections with the sentencing rationale of just deserts, in which proportionality is the key element (see 3.1 above).

4.7. Summary

  1. The main guiding principles of sentencing which will apply irrespective of whatever sentencing goals are selected are usually considered to be:

Some authorities put forward justice and humanity as additional important principles.

  1. Interpreted strictly, these principles have a tendency to conflict with one another and, in the case of restraint, with other policies concerning the disposition of serious offenders. The application of these principles, with the exception to some extent of restraint, is not spelt out in legislation in New Zealand. At issue is whether there should be legislative or regulatory guidance as to how these principles should be applied and in what circumstances will some increase in importance at the expense of others.
  2. Issues for consideration include:

(a) Whether the principle of restraint should be used to reduce or limit overall sentencing levels, or exercised in respect of individual sentencing decisions, or both?

(b) Whether the principle of restraint should be legislatively defined with respect to all types of sentence, rather than, as is currently the case, only with reference to imprisonment?

(c) Whether there should be a guideline statement of principle that sentencing decisions should not take account of colour, race, ethnic or national origins, sex, marital status, or religious or ethical belief? Are there other offender characteristics which should be excluded from sentencing consideration, e.g. employment status?

(d) Whether departure from the principle of equal treatment before the law should be limited to the application of monetary sentences, where it is required for practical reasons, or other instances where it is necessary to alleviate the extreme hardship which a normal sentence would cause a particular offender? Are there other circumstances where such departures are justified?

(e) To what extent should the costs of sentence administration play a part in the considerations of those formulating sentencing guidelines?

5. Aggravating and Mitigating Factors

5.1. Introduction

Sentencing decisions typically include the weighing up of aggravating and mitigating factors, insofar as they exist, in order to individualise the sentence with respect to the offender and the circumstances of the offence(s). Aggravating factors are those which may increase the sentence, while mitigating factors may have the opposite effect. The courts have generally been left a broad discretion as to how to deal with aggravating and mitigating factors.

The issues discussed in this chapter are:

5.2. Types of Aggravating and Mitigating Factors

There is wide consensus that aggravating and mitigating factors should relate to the harm or potential harm of the offence and the culpability of the offender. This not only equates with a just deserts philosophy, but also with the common law concept of crime as consisting of both a proscribed act or omission (actus reus) and an intention (mens rea). It follows that anything which affects either of these two elements should have a bearing on the sentencing decision. Examples of aggravating factors of this type would be the degree to which the offending was planned or part of an organised activity, whether it was committed for remuneration, and whether a weapon was used. Mitigating factors may be that the offence was committed under significant coercion or provocation, the offender’s conduct resulted from a significant lack of capacity for judgement, or the crime was motivated by strong human compassion or severe need.

The debate as to which aggravating and mitigating factors should be taken into account is largely centred on whether factors not directly related to the offence itself or to the offender’s conduct in relation to that offence should be considered. This encompasses factors related to the offender’s conduct after the offence (for instance, guilty pleas, assisting the police to apprehend other offenders, and offers of compensation to the victim), factors concerning the offender’s general character which are unrelated to the offending (for instance, previous good character or charitable acts), and the indirect consequences of the offence for the offender (for instance, loss of employment or serious personal injury).

To some extent this will depend on the degree to which the factors are linked to the sentencing rationales and what these rationales are (see 5.3 below). With respect to post-offence conduct, an offer to make amends or an apology to the victim may be appropriate mitigating factors if restitution is a primary sentencing rationale, although care would need to be taken that wealthier offenders could not buy themselves a lighter sentence (see 3.5.6). Such behaviour may also be taken as evidence that the offender has considerable potential for rehabilitation if this were a primary rationale.

A guilty plea is also sometimes seen as indicative of contrition and potential for self-rehabilitation (that is, if it is not a calculated response in the face of a high probability of conviction). The practice of giving a sentencing discount for a guilty plea is most often justified for practical reasons. It saves the time and expense of a trial, and it spares the victim and possibly other witnesses the ordeal of a court appearance. The objections to this practice are that it may penalise defendants who exercise their right to put the Crown to proof by contesting the charge, and it may constitute an undue inducement to innocent defendants to plead guilty. It is for the latter reason that Scotland has no guilty plea discount.

In respect of a collateral consequence of the offence such as loss of employment, the English Court of Appeal has made it clear in the leading case of R v Barrick (1985) 7 Cr.App.R. (S) 142 that this should not be regarded as a mitigating factor (Ashworth 1992, p135). The New Zealand courts, on the other hand, regularly view loss of employment, career prospects, and the humiliation and stigma of a criminal conviction as mitigating (Hall 1993–97, B/183). This latter approach introduces a potential bias on the basis of socio-economic status in that it discriminates against the unemployed offender, or those in jobs where a criminal record is of no consideration.

Such a bias is also possible where mitigation is awarded on the basis of the person’s previous social standing and good reputation in the community. It is of note, however, that a position of influence and responsibility may count as an aggravating factor for some crimes if that status were used to advantage in the offence, for instance for drug dealing or fraud.

Past ‘good deeds’ of the offender which are unrelated to the offence are also often raised as mitigating factors. The rationale is that evidence of past social responsibility and service to the community should to some degree offset the offending behaviour and hence reduce the sentence. The justification for this in terms of culpability is probably similar to that for the absence of previous convictions being viewed as a mitigating factor, namely that it demonstrates that the offending is ‘out of character’ and that the offender deserves a second chance. (Clearly the accumulation of previous convictions would similarly compromise this claim.) If there were a rehabilitative sentencing rationale these factors could possibly indicate a lesser degree of rehabilitative need. This approach can also be justified if sentencing is seen as a form of ‘social accounting’ rather than a response to distinct instances of illegal conduct (see Ashworth 1992, pp133–4 for a different view).

Another group of mitigating factors may be best described as prompting consideration of the exercise of mercy, or ensuring that the sentence will have equal impact on offenders responsible for similar offences and of equal culpability. These include such things as severe illness, or if the offender is aged. In these circumstances, imprisonment may be deemed an additional physical hardship and an extreme punishment if the offender is likely to die before release. Mercy or the principle of equal impact may also justify the shortening or replacement of a prison sentence where the offender has a disability which may mean that imprisonment is an extraordinary hardship. Mitigation is sometimes allowed when as a result of the crime the offender has suffered serious injury, the death or serious injury of a loved one, or severe financial loss.

The treatment of previous offending as an aggravating factor is dealt with in Chapter Six.

5.3. How Closely Should Aggravating and Mitigating Factors be Linked to Sentencing Rationales?

An important question is the extent to which these factors should be linked, or even limited, to the rationale(s) selected as the basis for sentencing. For example, if the primary aim of sentencing were just deserts, then factors such as remorse and contrition on the part of the offender may be viewed as relevant considerations if they are seen to reduce culpability because they indicate the offender was acting ‘out of character’ or ‘made a mistake’. They would also be relevant if rehabilitation were the aim.

It is argued that making the aggravating and mitigating factors consistent with the declared rationale(s) of sentencing will enhance consistency of approach (See for instance, Council of Europe 1993, p381). On the other hand, Ashworth comments that to link aggravating and mitigating factors solely to the primary rationale(s) would be “too astringent ... particularly in the context of a branch of the law so closely entwined with social policy and so politically sensitive as sentencing.” His view is that while “the core of aggravating and mitigating factors ... [should be] linked to the primary rationale, ... there is no reason why additional factors should not be recognised” (Ashworth 1992, p123).

Different rationales will occasion different considerations of factors. If a variety of rationales are available, then the sentencing judge is able to choose between a wide range of aggravating and mitigating factors. It is of note that New Zealand judges have often linked aggravating factors to the need to impose a deterrent or incapacitative sentence, while mitigating circumstances are often linked with the possibility and opportunity for rehabilitation, or attempts to achieve equal impact in sentencing.

5.4. Specification of Aggravating and Mitigating Factors

A further issue is the degree to which aggravating and mitigating factors can be incorporated in statutory or otherwise formal sentencing guidelines. One point of view is that individual factors cannot be singled out and fixed under one or other heading (and definitely not given a value) since:

The argument for specification is that it will result in greater consistency of approach. For instance, the Council of Europe examination of sentencing concluded that to avoid “subjective disparity between judges” the major aggravating and mitigating factors should be specified in law or in legal practice, and there should also be definition of the factors not considered relevant to certain offences. An example of the latter is the requirement in both Swedish and British law that neither the victim’s previous sexual experience nor possible imprudence by the victim are to be considered mitigating factors in the sentencing of rape. The Committee recognised that it was not possible to create exhaustive lists, but stipulated that at least the leading factors and those which have provoked controversy should be identified (Council of Europe 1993, p381).

One example of the listing of factors is provided in the Swedish Criminal Code 1988. The listed aggravating and mitigating considerations relate primarily to harm and culpability, and are to be used by the court to determine the ‘penal value’ of the offence, which in turn determines the sentence. These general lists may be overridden by circumstances or factors specifically prescribed for certain types of crime. This presumably deals with those offences to which one or some of the general aggravating and mitigating factors do not apply. The Code provides an additional list relating to the offender’s conduct after the offence and the corollary consequences of either the crime or a ‘normal’ sentence for the offender. It stipulates that these factors are to be considered “to a reasonable extent” alongside the penal value to determine the eventual sentence. This suggests there is a two stage process: the main aggravating and mitigating factors are used to determine the penal value; then consideration is given to whether any of the other consequences or subsequent actions of the offender should reduce the sentence below the calculated penal value. Full remission of sentence is expressly allowed if any of these latter considerations make the imposition of a sentence “manifestly unreasonable”. Previous offending is to be considered separately in determining the sentence, as is the youth of the offender (if aged under twenty-one), which may allow for a sentence below the statutory minimum (Jareborg 1995, pp100–8).

Finnish sentencing law (1976) has a less extensive list of aggravating and mitigating factors. As well as factors relevant to harm and culpability, grounds for increasing punishment include the degree to which the offending was planned, and committing the offence as a member of a group or for financial gain. Mitigation is allowed if the offender was under strong pressure or threat to commit the offence, if there was exceptional and sudden temptation that lowered the offender’s ability to obey the law, or if the offender made voluntary efforts to prevent or compensate for the offence or assist in clearing it up. There is a rarely used provision for reduction of the sentence due to adverse consequences for the offender such as loss of job, heavy damages, adverse publicity, or serious personal injury. The previous criminal record of the offender is an aggravating factor if a previous offence is similar to the new offence or if the previous offending indicates a particularly strong disregard for the law (Törnudd 1994; Jareborg 1995, pp97–8).

The United States Federal Sentencing Guidelines list aggravating and mitigating factors (called specific offence characteristics), with points assigned to them to add or subtract from a base offence level (see section 11.4). This latter system is one way, albeit a very mechanistic one, of giving a fair degree of predictability to the otherwise difficult task of balancing mitigating and aggravating factors in order to arrive at a final sentence. Similarly, the Minnesota sentencing guidelines provide a list of permissible reasons for departure up or down from the guideline sentence, and the Washington guidelines include an illustrative list of aggravating and mitigating factors (see 11.4).

One possible approach to the problems of specification is to list the factors which must not be taken into consideration. This fits with one of the often cited intentions of specification, namely to avoid discrimination through the application of status factors. For instance, the Minnesota guidelines prohibit consideration of status factors such as age, race, sex, employment, marital status, or residence as reasons for departure from the guideline sentences.

In New Zealand, as in England, the courts have been left to develop the parameters of aggravation and mitigation, and some Court of Appeal judgments have listed the most important aggravating and mitigating factors in respect of particular types of offences. (The variety of factors and their use in respect of different types of offence and offender are fully discussed by Hall 1993–97, B/101–B/273.)

5.5. The Use of Aggravating and Mitigating Factors

A preliminary question is whether mitigating factors are to be spelt out in statute or by way of other formal guidance, or left to the courts to determine by way of case law. The United Kingdom Criminal Justice Act 1991, for example, requires the courts to consider aggravating and mitigating factors relating to the seriousness of the offence, but leaves the courts a wide discretion as to whether they take account of “any such matters as, in the opinion of the court, are relevant in mitigation of sentence” (s28(1)). These matters may include a guilty plea, assistance to the police to convict others, or characteristics of the offender which would make the normal sentence abnormally hard upon him or her.

In most systems, the impact of any given factor on the overall sentence, and the balancing of aggravating against mitigating factors, are determined on a case by case basis, depending on the combination of circumstances and the type of offence. With the potentially large number and variety of combinations of factors this may well be a cause of disparity. On the other hand, the complexity of the factors and their combinations suggest the difficulty of rule making.

The wider question is how far the use of these factors should be prescribed by rules or guiding principles, and how far it should be left to discretion. Proponents of the former cite the benefit of consistency in approach, while arguments for the latter relate to the ability to consider the case in the totality of its circumstances as rendering greater fairness. When matters are left to discretion, one option is to require that decisions be clearly justified to aid the further development of the case law. This could include identifying which factors influenced the sentence, whether they were aggravating and mitigating, and what features of the factor were relevant. The Canadian Sentencing Commission recommended specificity of this type when sentencers departed from the guidelines (Canadian Sentencing Commission 1987, pp321–2).

5.6. Summary

  1. Sentencing guidance needs to be clear as to what can be considered mitigating and aggravating factors and how they can be applied consistently.
  2. Issues for consideration include:

(a) The extent to which offender characteristics, collateral consequences, and post-offence conduct should be included as aggravating or mitigating factors.

(b) The extent to which aggravating and mitigating factors should be linked or limited to the declared rationale(s) of sentencing.

(c) The extent to which the factors can or should be specified in legislation or other formal sentencing guidelines.

(d) The extent to which there should be legislative or other formal principles of guidance as to how the factors should be used, and whether reasons should be required when they are used.

6. Sentencing of Persistent Offenders

6.1. Definition of Persistent Offenders

Repeated offending presents a particular set of theoretical and practical difficulties to sentencers and sentencing policy makers alike. Some of these difficulties arise from the various types of recidivism. Some recidivists, such as those who repeatedly commit burglaries, can almost be viewed as career criminals. Some will repeatedly offend as a by-product of social deprivation or deeply grounded personal difficulties. Some will be mentally disturbed, while others will keep returning to court because of associations they have formed.

A second issue is the various types of repeat offending, ranging from minor traffic infringements to violent offending. Current New Zealand sentencing policy as embodied in the Criminal Justice Act 1985 is based on a perception that those who commit repeat serious violent and sexual offences and are assessed as having a propensity to commit further offences of this type constitute a distinct category, because of the extreme harmfulness of their offending. For this reason, the sentencing of offenders defined as dangerous is dealt with separately, in Chapter Seven, although this categorisation is not without its critics (see Brown and Cameron 1995; Brown 1996).

This separation of persistent non-violent offenders from repeat serious violent and sexual offenders is consistent with the changes in the concept of dangerousness over time as discussed by John Pratt (1995). Late last century and until the middle years of this century, dangerousness was associated with habitual and professional offending, usually involving offences against property. After this time, violent and sexual offenders were more explicitly added to the targeted categories, and from the 1970s onwards the focus moved increasingly towards this latter category, until it became the sole focus of protective sentencing measures.

In most jurisdictions, persistent offenders are sentenced more severely than first offenders. Such sentencing can be linked to one of the following rationales:

Mitigation for the first offender can be linked to a rehabilitative rationale (providing the opportunity for self-rehabilitation).

This chapter outlines various approaches to the sentencing of persistent offenders.

6.2. Approaches to the Sentencing of Persistent Offenders

Ashworth has delineated three approaches to sentencing persistent offenders (Ashworth 1992, pp143–50). The first is simply to ignore an offender’s previous record and sentence him or her solely on the current offence(s). The rationale behind this approach is that repeat offenders have already incurred punishment for their earlier offences, and to take them into account at a later date is to punish them twice for those offences. Put another way, the offender’s culpability for the current offence(s) is made no more or less by previous behaviour. To be consistent, this approach has no provision for viewing the absence of a criminal record as a mitigating factor in the sentencing process. Many jurisdictions use this approach in respect of minor traffic and other offending through the use of set infringement fees.

A second approach is founded on the premises that a first offender should receive a discounted sentence; second and subsequent convictions should result in a progressive loss of this mitigation; and the seriousness of the current offence sets the ceiling beyond which the sentence cannot go, no matter how extensive the previous record. The first premise indicates tolerance for human frailty; treating the offence as ‘out of character’. It relates to the just deserts view of sentencing as censure (see 3.1.1); treating people as capable of responding positively to that censure. Repeat offending gradually erodes this tolerance. Questions arise as to whether the first offender mitigation can apply to more serious offences, and how quickly the mitigation may be lost. In response to the former, it could be argued that tolerance of human weakness is more justifiable for minor offending and offences which do not demonstrate a high degree of deliberation. For the latter, one method would be to apply considerations of seriousness, frequency and similarity of previous offending, with mitigation lost more quickly when previous offending shows a ‘settled determination to break the law’.

The third approach is the cumulative principle, whereby sentences become progressively more severe with each new offence. This is normally justified on the grounds that society needs to be protected from persistent offenders (incapacitation), and that ever increasing penalties will deter an offender (individual deterrence). These grounds take precedence over the principle that offenders should be sentenced in proportion to the gravity of the current offence(s). This approach is normally associated with extensive use of imprisonment, as repeat offending causes offenders to escalate up the penalty scale.

The main difference between the cumulative principle and progressive loss of mitigation is that in the latter the seriousness of the current offence provides a definite ceiling. The difference in practice will depend on how firmly such proportionate ceilings are established.

One version of the cumulative principle would be to confine it to the repetition of the same type of offending, where this is taken to indicate a definite pattern of behaviour, in particular, ‘the professional’ offender. The difficulty is in defining the previous offending in such terms as to exclude petty persistent offenders (Ashworth 1992, pp154–7). Such provisions run the danger of replicating the pitfalls of persistent offender legislation in the past. These are clearly illustrated by the Secretary for Justice’s 1964–65 Annual Report to parliament, where with reference to preventive detention, he commented that:


though designed mainly to remove persistent and dangerous offenders from the community for a long indeterminate period, the sentence has been applied to many who are merely irresponsible and inadequate, and its aptness in these cases is doubtful.
(quoted in Webb 1982, p73)

Aside from attempts to protect the public from the professional burglar or car thief, the question arises whether the cumulative principle may be relevant to hate offences (directed against particular races or other identifiable groups of people), or to the person who stalks a former partner or other ‘selected’ victim. The individual offences may in themselves be minor, but the pattern of previous offending could be considered an aggravating factor, as it suggests greater culpability on the part of the offender and greater harm to the victims, especially in terms of the fear created. In such cases, the issue may also be one of prediction of dangerousness, the issues surrounding which are discussed in Chapter Seven.

The deterrence rationale for cumulative sentencing would seem to have little justification given the lack of strong evidence that increases in sentence level increase deterrent effects (see 3.2.3). Cumulative sentencing on the basis of incapacitation is also questionable because of the lack of certainty in predictions of future offending, and in relation to non-serious offending the costs of the incapacitation are likely to far outweigh the costs of the offending itself. It is for this reason that the discussion of incapacitation suggests that the risks of false confinement should be limited by using incapacitative sentences only for the relatively few offenders who are assessed as constituting a grave danger to society or to certain individuals (see 3.3.6).

6.3. Sentencing of Persistent Offenders in New Zealand

The shift away from protective sentencing for persistent offenders irrespective of offence type is illustrated by the history of the sentence of preventive detention in New Zealand. The sentence was introduced in the Criminal Justice Act 1954; replacing the habitual criminal and offender declarations in the Habitual Criminals and Offenders Act 1906. (These provisions had allowed judges to impose an indeterminate reformative sentence of detention following a finite prison term: Webb 1982, pp19–25.) Preventive detention was originally available for a mix of three types of offender: repeat minor offenders; repeat middle range offenders; and sexual offenders against children who had at least one previous similar conviction. Offenders had to be twenty-five years or older, and only convictions since the age of seventeen were counted. The number of previous offences and prison sentences required for eligibility decreased with the seriousness of the past and current offending. The court had to be satisfied that it was expedient for the protection of the public that the offender should be detained in custody for a substantial period. (This same criterion applies currently to the sentence.)

In 1967 preventive detention was abolished except for persons qualifying by reason of sexual offending. (In 1961 the category of child sexual offending had been broadened to include all sexual offending.) One of the reasons the Minister of Justice cited for this change was the inappropriateness of preventive detention for offenders whose record, though long, did not make them a menace to society. (The other reasons related to the stresses associated with an indeterminate sentence, and the difficulty of deciding when release would be justified. (Webb 1982, p74.) Since that time, the focus of the sentence has been on violent and sexual offenders seen as likely to pose further serious harm (see 3.3.2).

6.3.1. New Zealand case law

In New Zealand case law there are two distinct yet related concepts regarding previous offending. New Zealand courts have clearly considered the absence of a criminal record as a mitigating factor, particularly where the person can demonstrate living in the community for many years with a ‘blameless record’, thus justifying a reduction in sentence. There are two sorts of reasons suggested for this approach. One is that persons who have not previously offended may be acting ‘out of character’ and that such people have built up credit (by establishing good character) which reduces their blameworthiness for offending. It follows that as convictions accumulate the credit diminishes. Where there has been earlier offending, credit may still be given (is built up again) for a subsequent significant period of law-abiding behaviour by way of reducing the effect of those previous convictions. The second is that someone offending for the first time may not have been fully aware of the seriousness of what they were doing, and is unlikely to infringe again in the same way if given a second chance in the form of a lesser sentence.

The converse of the above is that New Zealand courts deal with previous offending as a potentially aggravating factor at sentencing. In so doing, the courts have been careful to stipulate that this should not amount to punishing the offender again for previous convictions, and that the sentence must remain in proportion to the seriousness of the current offence(s). The Court of Appeal has stated that previous convictions may be taken into consideration in determining the character of the offender, as part of the process of fixing the sentence for a particular offence committed by a person of that character. Previous offending has also been held to be relevant to determining how offenders may respond to a particular sentence.

Previous offending is an aggravating factor where it shows a “settled determination to break the law” , and where previous convictions of the same type indicate a predilection for that type of offence. An incapacitative or deterrent sentence has been seen as appropriate where there are second and subsequent offences against the same victim, and sentences may be increased for deterrent purposes when repeat offending is taken to indicate that previous sentences were ineffective. Similarly, repeat offending after an earlier lesser sentence may be viewed as the offender’s failure to appreciate that leniency as an incentive to rehabilitation, and a number of previous convictions may escalate the sentence on the basis that anything but imprisonment will be ineffective. This is tempered by the consideration that where an offender has previous convictions for offences similar to the one before the court, the court should refrain from imposing a sentence markedly different from those imposed for the earlier offences. The Court of Appeal has held that previous offences of a more serious nature than the current offence(s) should not lead to a disproportionate current sentence. (See Hall 1993–97, B/177, B/191–B/199–2 for a detailed discussion of the case law; and Hesketh and Young 1994, pp52–3, 58–9.)

6.4. How Some Overseas Jurisdictions Deal with Previous Offending

In jurisdictions where aggravating and mitigating factors are specified in legislation or guidelines, there is also guidance as to the application of previous convictions. Sweden has a general principle of using imprisonment sparingly but, in considering whether imprisonment is appropriate, the court may take account of previous criminality. In so doing, the court is directed to consider the extent of the previous offending, the time elapsed between offending; the similarity between past and previous offending, and the seriousness of past and present offending. In Finland, previous offending counts as aggravating if it is similar to the current offence(s), or if it shows a particular disregard for the law.

As discussed in Chapter Eleven, the American guideline systems incorporate a “criminal history score”, with higher scores leading to longer sentences. In some of these systems, the score is arrived at both through the number of previous convictions and the seriousness weighting of the applicable offences (see 11.4).

The United Kingdom Criminal Justice Act 1991 (prior to amendments made in 1993) provided at s29 that the offender’s previous convictions or his or her response to previous sentences should not increase the seriousness of the current offence (in effect setting the ceiling at the seriousness of the current offence); but that the circumstances of previous offences may be relevant in assessing the seriousness of the current offence(s) if those circumstances shed light on (“disclosed”) aggravating features of the current offence(s). This latter point created an exception to the previous point in allowing the ceiling to be exceeded for ‘professional’, as opposed to opportunist, offending. Other examples where it was seen as applicable were:

“Other offences” included both previous convictions and offences of which the offender was convicted on the same occasion as the current offence. Amendments to the Act in 1993 substituted a new s29 which removed the limitations on the relevance of previous convictions by providing that “in considering the seriousness of the offence, the court may take into account any previous convictions of the offender”. That part of s29 allowing the “circumstances” of previous offences to be taken into account was repealed. There is therefore now nothing in the new s29 specifically enabling the court to take into account the circumstances of previous offences, as opposed to the mere fact of conviction. On a common sense interpretation the courts could be expected to consider the available information about the facts of previous offences in order to assess the relevance of those offences to the current offence, but the situation may not be as clear cut as that (Ashworth and Gibson 1994, p104).

6.4.1. ‘Three strikes and you’re out’

Recent legislative initiatives in the United States indicate a return to the concept of protective sentencing on the basis of repeat offending, rather than on the assessment of future risk of causing severe harm, as is discussed in Chapter Seven. In 1993 and 1994 Washington and California enacted laws which require a person who has committed serious offences on three occasions to be sentenced severely for the third offence. This is commonly called “three strikes and you’re out”. The Washington Persistent Offender Accountability Act requires that a third serious offence receive a sentence of life imprisonment without parole, or a death sentence if the crime is one of aggravated murder in the first degree. The purpose of sentencing three-time serious offenders to life is expressed as improving public safety, reducing the number of serious repeat offenders at large, setting proper and simple sentencing practices that both victims and persistent offenders can understand, and restoring public confidence in the criminal justice system. The Act provides that offences such as drunk driving, promoting prostitution, and petty theft are deemed sufficient to qualify an offender for a mandatory life sentence. As such it appears to return to the previous association of persistence with dangerousness, irrespective of offence seriousness.

Under the Californian Penal Code, a convicted offender who has two or more previous convictions for defined offences will be sentenced to a minimum term of imprisonment for whichever is the greater of:

The term of imprisonment must not be merged with any other term of imprisonment imposed, but must be served in addition to it. A prior conviction must not be discounted by the judge by reason only of:

The Californian law also provides for a doubling of the prison sentence for a second strike.

These provisions of the code are entrenched and cannot be amended except by a statute passed in each house by two-thirds of the members or by a statute approved by the electors.

At least twenty-two states now have some version of the three strikes law. In addition federal crimes are subject to a three strikes law due to enactment of federal legislation in 1994. Variations from state to state (other than those relating to lengths of imprisonment and the possibility of parole) mainly relate to whether or not the term imposed on the repeat offender is mandatory (with some such as Connecticut, Indiana, Kansas, and Maryland retaining a degree of judicial discretion), and the number and types of felony offences to which the legislation applies (Dickey 1996, appendix). With the exception of California, these laws have been infrequently used, either because they have been drafted very narrowly or because prosecutors have had little recourse to them owing to other severe sanctions in place. In June 1996 the California Supreme Court in the case of People v Romero ruled, in respect of that state’s three strikes legislation, that judges who consider a mandatory twenty-five years-to-life sentence to be too harsh may impose a lighter sentence. Six of the seven justices of the Supreme Court also held that the mandatory nature of the three strikes measure violated the clause in the state constitution setting out the separation of legislative and judicial powers. The decision followed a number of widely publicised cases in which Superior Court judges in California refused to comply with the law when it came to giving a life sentence for a non-violent felony like burglary or drug possession. In some cases juries pleaded with judges to reduce third felony charges to misdemeanours or disregard prior convictions in order to circumvent the mandatory three-strikes sentence. The law does give prosecutors the power to ask a judge to disregard a previous strike “in the furtherance of justice” and impose a lesser sentence than the “mandatory” one, but is silent on whether judges can take such action on their own volition, an omission that had brought several conflicting rulings by state appellate courts. The Romero case involved a third-time offender who pleaded guilty to possessing 0.13 grams of cocaine and whose previous ‘strikes’ involved residential burglary and attempted residential burglary. The Superior Court Judge ruled that twenty-five years imprisonment would be cruel and unusual punishment and sentenced Romero to six years. A Court of Appeals overruled that sentence and the defence lawyers appealed to the Supreme Court (Guardian Weekly, 30 June 1996).

6.5. Summary

  1. Sentencing guidance needs to be clear about how previous offending, or the lack of it, should influence the level of sentence.
  2. Neither deterrence nor incapacitation provide a sound rationale for cumulative sentencing of offenders purely on the basis of persistence. Previous offending may, however, increase the culpability of the offender and harmfulness of the offending and thus act as an aggravating factor to increase the sentence.
  3. Principles and issues for consideration in respect of the treatment of past offending are:

(a) Whether the seriousness of the current offence should always provide the upper limit for the current sentence, or whether circumstances can be defined when previous offending may take the sentence beyond this because it indicates a particular pattern of behaviour for which incapacitative sentencing is desirable, e.g. professional offending, hate crimes, stalking?

(b) Whether there should be mitigation of sentence and a presumption against imprisonment for first-time offenders, except when the offending is seriously harmful?

(c) Whether there are circumstances in which significant convictions-free periods should negate or reduce the effect of previous convictions?

(d) Whether previous similar offences should be given more weight than previous dissimilar ones?

(e) Whether previous serious offences should be given more weight than previous minor ones?

7. Sentencing ‘Dangerous’ Offenders

7.1. Who is a Dangerous Offender?

Although the concept of dangerousness is generally understood, it is useful to make clear what is meant by dangerous in this discussion. Individuals may be defined as dangerous where they are assessed as posing a substantial risk of grave harm to the public or specific individuals. Following the definition used by the Law Commission in their 1994 report, Community Safety: Mental Health and Criminal Justice Issues, “grave harm” can be further specified as “death, serious personal injury and sexual assault, where the infliction of the harm is unlikely to be accidental” (Law Commission 1994, p18). The limitation of dangerousness to this type of offender is consistent with international opinion, which Pratt describes as moving from the 1970s onwards almost exclusively to a focus on repeat violent and sexual offenders (Pratt 1995, p13).

This discussion is confined to the sentencing of those who have been convicted of an offence or offences, and who are assessed as dangerous under the definition provided above. Such sentencing usually goes under the name of protective sentencing, because it is specifically designed to protect the public from the risk of future serious harm from the offender. This discussion does not extend to provisions to deal with non-offenders who are judged as likely to be dangerous. Nor does it extend to persons classified as having a mental disorder in terms of the Mental Health (Compulsory Assessment and Treatment) Act 1992. These persons are dealt with according to the provisions of that Act.

Dangerous offenders typically constitute a small group in numbers, but the potential extreme harmfulness of their conduct means it is necessary to give them specific consideration in the discussion of sentencing policy. This view is reflected in the special legislative provisions of many countries which allow such offenders to be detained longer than is proportionate to their conviction offence(s), often for an indeterminate term. Such confinement is justified on the basis of predictions as to their likelihood of committing future offences of the type which makes them ‘dangerous’ (see Ashworth 1992, pp159– 70; Pratt 1995, pp3–31). In essence, they are subject to the incapacitative provisions discussed in section 3.3 above.

7.2. Protective Sentencing in New Zealand

Imprisonment is the main means of achieving incapacitation of violent and sexual offenders. Section 5 of the Criminal Justice Act requires that serious violent offenders be imprisoned except in “special circumstances”, and s5A specifies that “the need to protect the public” shall be a factor in determining the length of such sentences. Preventive detention is the specific sentence for dangerous offenders, although it is seen by the courts as the sentence of last resort. (The conditions for the imposition of preventive detention are discussed at 3.3.2). The Court of Appeal has held that for offenders who qualify for the sentence of preventive detention, where possible a lengthy finite sentence should be imposed in preference (see for instance, R v Pratt (CA61/78, 8 August 1978) [1978] BCL 792). In such cases finite sentence lengths may be extended beyond levels proportionate to the conviction offence(s).

Protection of the public or specific persons from the particular offender is similarly a consideration in parole decision-making (Criminal Justice Act, s104). As explained in section 3.3.2, there is provision to require a dangerous offender to remain in prison beyond the final release date, which is at two thirds of the sentence imposed (s105).

There is no provision in New Zealand law to hold a person perceived as dangerous in prison after his or her finite sentence has expired. The only means to impose such indefinite protective confinement is at the sentencing stage through the imposition of preventive detention. This sentence keeps running even if the person is released on parole, and recall proceedings can be instituted if the person’s behaviour gives cause for concern.

Balancing these provisions for protection of the public through the imprisonment of dangerous offenders, are the human rights provisions which limit arbitrary and excessive punishment and detention. Of greatest relevance to the issue of protective sentencing are the following provisions of the New Zealand Bill of Rights Act 1990:

These rights are not absolute. Section 5 expressly provides that the rights conferred by the Act may be limited by law to the extent that this can be “demonstrably justified in a free and democratic society”. There is, however, a strong incentive on parliament not to introduce legislation which is inconsistent with the Bill of Rights Act. With respect to protective sentencing, this suggests at a minimum that there should be clear standards and conditions for the imposition of such sentences.

7.3. Issues

The central dilemmas of protective sentencing are discussed in section 3.3 on incapacitation. These primarily relate to the ethics of sentencing people for longer than is proportionate to their current offence(s) on the basis of predictions of their likelihood of committing dangerous offences in the future. This is especially problematic because of the general difficulty of predicting offending, and the added difficulty in predicting serious violence due to the relative rarity of such events. (See section 3.3.4 for a fuller discussion.) The 1981 Floud Report’s conclusion that the prediction of violent offending has at best a 50 per cent success rate appears to still hold true. This level of accuracy is well below the normal standard of proof for a criminal conviction, that is proof beyond reasonable doubt. Furthermore, protective sentencing on the basis of predictions of future behaviour runs counter to the fundamental right to be presumed innocent until proven guilty. In fact it creates the reverse presumption. In effect, protective sentencing deprives certain individuals of rights basic to our criminal justice system.

This departure from the standard principles is advocated on the basis of the risk of extreme harm which these offenders are seen to pose. The fact that these offenders have shown through past behaviour that they are capable of, or highly likely to carry out, extremely harmful actions justifies tipping the balance away from the offenders’ rights and towards the rights of their potential victims. This public protection balance has been clear in the courts’ exercise of the discretion to impose preventive detention on eligible offenders. Although the judge must weigh up all the facts and circumstances of each case, the requirement to consider whether prolonged detention is “expedient for the protection of the public” is held to be the “predominant or paramount consideration, to which other factors and the offender’s personal interests should be subordinated: R v Freeman [1955] NZLR 718 (CA)” (Hall 1993–97, D/795/2).

Each society must make a moral decision as to how far to tip the balance between the rights of the offender not to be put at risk of excessive confinement through inaccurate predictions, and the rights of potential victims to be protected from convicted offenders who are assessed as likely to commit further very dangerous offences. In making such decisions it must be recognised that dangerous offences are also committed by people who have not previously been convicted, or whose previous convictions have not led to a suggestion that they be considered for protective sentencing. This essentially limits the protection available from protective sentencing. There is, nevertheless, a reasonable degree of consensus as to the need for some type of protective sentencing provisions. As the Law Commission noted in its 1994 report:


There appears to be almost universal agreement that there is a small group of individuals who will repeatedly cause serious harm. The public rightly expect the law to protect them so far as possible from that harm.
(Law Commission 1994, p20)

Although some form of protective sentencing is justified, a number of issues remain to be resolved. These relate to eligibility for protective sentences, prediction methods, and the required degree of accuracy. The form of protective sentences must be determined, that is whether imprisonment or some other form of confinement and supervision is necessary, and whether protection is achieved through long finite sentences or indeterminate sentences. Given the lack of accuracy in predictions and the intrusion on offenders’ rights not to be punished for the likelihood that they will commit further offences nor receive additional punishment for previous offences, there is a strong case to be made for substantial procedural protections of the rights of those eligible for, or subject to, protective sentences. These issues are discussed below.

A further issue with protective sentencing has been noted by the Law Commission, namely that it is likely to have a disproportionate effect on Mäori. This occurs because Mäori are convicted of violent and sexual offences in almost the same numbers as Pakeha despite comprising only about 13 per cent of the population, and Mäori are more likely to be reconvicted (Law Commission 1994, p20).

7.3.1. Eligibility for protective sentences

The difficulties of prediction and the extreme nature of protective sentencing mean that its use should be limited to a defined group of offenders, and then only applied on the exercise of discretion and/or when certain conditions are met. Age, and past and present offence criteria are often used to determine eligibility for protective sentencing. Automatic imposition of protective sentences on people who meet these criteria would not be desirable for several reasons. Such sentencing is justified on predictions about each offender’s propensity to reoffend in a dangerous manner which requires individualised assessment and justification, especially as such sentencing infringes on offenders’ normal rights in the criminal process. A further disadvantage is that offence categories often have wide definitions covering a broad range of conduct from the very serious to not so serious.

If the provision is to be used against stalkers (who may represent extreme danger to a particular individual), or people who commit hate crimes against certain ethnic or social groups, the qualifying offences may need to include offences which are of a lesser degree of seriousness but which form a pattern of behaviour which indicates a propensity for future dangerousness.

7.3.2. Prediction methods and accuracy

The Floud Committee concluded that there was no particular statutory test of dangerousness which could be applied because of:


The nature of predictive judgments, the limited scope for precision and confidence in such judgments, [and] the widely varying characteristics of the relatively few offenders likely to meet the qualifying conditions.
(Floud in von Hirsch and Ashworth 1992, p128)

They accordingly argued for “the exercise of a broad discretion” in protective sentencing decisions, rather than reliance on predictions only.

As noted in 3.3.4, actuarial (statistical) prediction is gaining ground over clinical predictions, although clinical prediction remains predominant in the legal system, perhaps because it is seen to allow for more individualised decisions. Given that neither type of prediction has a high degree of accuracy, it may be that individual sentencing decisions would be best informed by combining the best available knowledge from both types. Information from actuarial prediction models could be made available to the sentencing judge in addition to a clinical assessment of the offender in an attempt to ensure that such decisions are taken on the best information possible. The final decision would be a matter of judicial discretion aided by these assessments, and perhaps with the guidance of specific criteria as discussed below at 7.3.5.

7.3.3. Type of sentence

Protective sentencing is most often pursued through the imposition of an additional term of imprisonment or imposition of an indeterminate sentence. Both options are used in New Zealand for offenders eligible for preventive detention as discussed above (section 7.2).

This is also the case in England and Wales, where the Criminal Justice Act 1991 allows the courts to depart from proportionate sentencing for incapacitative reasons in two instances. A custodial sentence may be imposed on any offender if the court is of the opinion “that only such a sentence would be adequate to protect the public from serious harm from [that offender]” (s1(2)(b)). This applies when the current offence(s) are minor and not of themselves warranting imprisonment, but are indicative of future dangerousness. Secondly, when imprisoning an offender aged twenty-one or more whose current offence is a violent or sexual one, the term may be extended beyond the proportionate sentence. The additional sentence shall be of the length “necessary to protect the public from serious harm from the offender” (Ashworth 1993, p163). The court must give reasons when exercising this power. The maximum penalty is the upper limit on the length of sentence.

The England and Wales Criminal Justice Act 1991 also makes life imprisonment available for many major crimes, including manslaughter, rape, robbery, wounding with intent, and arson, on condition that the offender has a history of mental disturbance and is considered likely to reoffend. The criteria still to be applied in such cases are those set out in a 1967 case, R v Hodgson (52 Cr App R 113), and are that:

In determining the gravity of the offence, no threshold has been set but subsequent court decisions suggest that it must be grave enough to warrant a sentence of at least seven years imprisonment. For instability to be inferred there does not need to be a mental disorder in terms of the legal definition, but there must be more than a personality disorder. Medical evidence is not essential (though normally relied on), and instability can be adjudged from the circumstances of the current offence, particularly in cases involving serious violence. Possible consequences to others are more likely to be deemed specially injurious if the future offences involve rape rather than arson (Ashworth 1992, pp167–169).

The trial judge sets an initial period of imprisonment when passing a life sentence, after the expiry of which the Home Secretary must release the offender, so long as the Parole Board is satisfied that the protection of the public does not require the offender’s further confinement.

The system of automatic release, unless there is good reason not to, is the reverse of the presumption of preventive detention. With both presumptions, the decision turns on the exercise of discretion guided by predictions of future behaviour, and parole authorities make the ultimate decisions as to the length of custody. Placing the onus on the state to justify further detention establishes a higher threshold at the parole stage.

The question arises whether protective sentencing is best pursued through the addition of a protective element to sentences which remain finite, or through specific protective sentences which are either indeterminate or eligible for indeterminate extensions, or through a combination of these options. Determinate sentencing with protective additions is not such an extreme restriction on liberty and is in keeping with the principle of using the least restrictive feasible option. Such an option keeps to the fore an awareness of the extreme exercise of state power entailed in protective sentencing. Indeterminate sentences do provide much greater potential for protection given that even if the offender is released, the sentence and eligibility for recall can continue for the rest of his or her lifetime. One potential difficulty is that this may lead to people being confined far beyond the period when they would have ceased to offend, possibly remaining in prison until very elderly. To a lesser degree this same issue arises if long finite sentences are imposed.

Retaining both options is desirable as this provides greater flexibility. Allowing protective finite sentences means that the less restrictive option would be considered in eligible cases, and the indeterminate sentence reserved for those most likely to pose the greatest risk. Given that even finite protective sentences will be lengthy is it desirable that there is provision for parole review after a specified period for both these sentences and for indeterminate sentences. Regular parole reviews of finite sentences could take place once the proportionate aspect of the sentence had been completed, with parole reviews of indefinite sentences occurring after a set period such as the ten years or judicially imposed minimum non-parole period which currently exists for preventive detention.

A further issue is how far protective finite sentences should be able to go beyond the upper limit of proportionality. For instance, the Floud Committee called for the additional protective time to be “proportional to the gravity of the anticipated harm and to the court’s estimate of the duration of the risk” (Ashworth 1992, p162).

7.3.4. Type of confinement

Protective sentencing is most often thought of as achieved through lengthy periods of imprisonment. The question arises whether the risk of victimisation for other citizens necessarily requires a dangerous offender’s prolonged imprisonment if public protection can be obtained by something less restrictive for the offender such as home detention or intensive supervision. On the other hand, very restrictive surveillance in the community over a prolonged period of time may present a hardship which is equal to, if not worse than, imprisonment.

Another option is to provide that the incapacitative confinement (on top of what is proportionate to the offence) should be civil confinement. This addresses the problem that extending the sentence symbolically increases the blame-worthiness attached to the conduct beyond what is merited (see von Hirsch and Ashworth 1992, p105). The ‘civil confinement’ could be in more comfortable conditions than a normal prison, although tight security would presumably still be necessary given the perceived dangerousness of the residents.

The State of Washington has a civil detention scheme for offenders defined as “sexually violent predators”. This allows an application to be made for the indefinite civil confinement of such offenders, with the decision made at a full defended hearing before a judge, or jury on request, and the requirement for the state to prove beyond reasonable doubt that the person is a sexually violent predator. Any such offender is then committed to a secure (non-prison) facility with the requirement that his or her case be examined at least once every 12 months. The scheme applies to persons who are about to be released or have been released from prison. To qualify as a sexually violent predator the person must have been convicted of a crime of sexual violence, or have been charged with such a crime and found incompetent to stand trial or not guilty by reasons of insanity. The person must also suffer from a mental abnormality or personality disorder which makes them likely to commit sexual crimes. Challenges have been mounted against the scheme regarding whether it is fundamentally a civil or a criminal measure and accordingly whether prohibitions against double jeopardy and retrospective laws apply. Other issues include whether the definitions are arbitrary in the sense of being circular, that is, relying on evidence of sexual violence to establish abnormality and hence a proclivity for sexual violence. (For further discussion see Law Commission 1994, pp88–93).

7.3.5. Procedural safeguards

The potential harshness of protective sentencing, in terms of very lengthy or indeterminate prison sentences, requires that this type of sentencing more than any other should be subject to strict criteria for application, procedural safeguards, and review provisions. For instance, the Law Commission has commented on the particular desirability of consistency in the imposition of a sentence as harsh as preventive detention, noting that better information on judgments and appeals, sentencing guidelines, and statistical information would assist to this end (Law Commission 1994, p87).

The Law Commission has developed a set of principles against which to consider the issues of dangerousness in the criminal justice and mental health systems. The principles are:

(i) Any power to detain a person must not be arbitrary. The power must be justifiable in a free and democratic society. The justification must rationally relate to the purpose – in this case, the protection of members of the public from physical harm. Any limit on liberty should be the least restrictive needed to achieve its purpose.

(ii) In addition, whether a power to detain people or to place other restraints on their liberty is arbitrary turns on:

(iii) Any proposal for a power of detention based solely on predictions of harmful behaviour must deal with the widely accepted opinion that predictions of dangerousness are likely to have only a 50 per cent rate of accuracy. The person’s past offending behaviour provides the best available means of prediction.

(iv) In principle and in practice, the law providing for detention does not solely depend on judgments of dangerousness. Rather it recognises two principal ways in which individuals considered to be dangerous may be prevented from causing physical harm to members of society:

(v) A power of detention which essentially depends on a disability has to be justified against the prohibition of discrimination on the grounds of disability.

(vi) A detained person must not be subjected to cruel, degrading, or disproportionately severe treatment or punishment. As well, everyone has the right to refuse to undergo medical treatment, although certain compulsory treatment might be able to be justified.

(vii) Any assessment of management options for dangerous people should take account of the social and economic costs as well as the benefits of the options, including the implications of any proposals for Mäori and other ethnic groups (Law Commission 1994, pp30–31).

It follows from these principles that the imposition of protective sentences should be subject to criteria related to public protection from offenders assessed as dangerous. Additionally, it is necessary to have procedures to ensure that decisions are made with the benefit of appropriate assessments, and that natural justice is accorded to the offender in that he or she is able to put his or her case and respond to information before the court.

The legislative provisions for preventive detention specify a general criterion for imposition of the sentence on repeat offenders (that the judge is “satisfied” that protection of the public requires such prolonged imprisonment). For offenders who qualify by virtue of a first conviction for sexual violation, the legislation contains the more stringent test that the judge must be satisfied that there is a “substantial risk that the offender will commit a specified offence upon release” (Criminal Justice Act 1985, s75).

In its considerations of these statutory criteria (particularly for repeat offenders) the Court of Appeal has identified a number of factors. The factors held by the Court to be relevant to the consideration of the likelihood of dangerous reoffending by an offender eligible for preventive detention are:

The issues concern whether there are other relevant criteria, and whether these or any amended criteria should be formalised in legislation or other forms of guidance. A further possibility is a requirement for judgments to show that each criterion has been considered, and to give reasons as to how the criteria were met or not met.

This last point leads onto the issue of whether there should be specified procedures to be followed before protective sentences can be imposed. For first-time sexual offenders eligible for preventive detention there is a legislative requirement for a psychiatric report before sentencing. There is no such requirement for repeat violent or sexual offenders, although such reports are normally obtained.

Given that protective sentencing is done on the basis of predictions of future behaviour there is some justification for making it a requirement that reports are obtained from psychiatrists and/or psychologists, and that information from actuarial predictions is also considered.

Further procedural safeguards as advocated by the Floud Committee are:

Another possibility is provision for review of the sentence (finite or indeterminate) at the point when the proportionate part of the sentence has expired, providing the proportionate split is specified at sentencing.

Even with the specification of criteria and procedures, inaccurate predictions will not be avoided. The development of criteria for the imposition of protective sentences is, nevertheless, one means of increasing consistency as it establishes a common means of addressing the issues. Criteria articulate the purposes of such sentencing and, in combination with set procedures, help to address the ethical issues involved in impinging on offenders’ rights not to be sentenced for something which they may do in future.

7.4. Summary

  1. In order to protect the public from offenders who may constitute a long-term threat of a particularly serious nature, longer than normal incapacitation is sometimes justified. This is normally achieved through imprisonment, and may take the form of longer than proportionate finite sentences or indeterminate sentences, of which preventive detention is an example.
  2. This suggests that the definition of sentencing rationales or purposes must allow for protective sentencing (incapacitation) in some circumstances.
  3. Issues for consideration include:

(a) The type of probable future offending which will qualify for protective sentences and why.

A starting point is the definition of dangerous offenders as individuals assessed as posing a substantial risk of grave harm to the public or specific individuals, where ‘grave harm’ constitutes death, serious personal injury, and sexual assault, and where the infliction of the harm is unlikely to be accidental.

(b) The specification of eligible offences and offending patterns.

(c) Whether protection of the public is best achieved through finite sentences longer than may be justified by the conviction offence, indeterminate sentences, or a combination of the two?

(d) Whether confinement in prison is necessary, or whether civil confinement, home detention, or intensive supervision are preferable for the purely protective element of the sentence?

(e) Whether criteria for the application of protective sentences should be formalised in legislation or other forms of guidance?

(f) Whether psychiatric, psychological, actuarial, and other forms of reporting should be required to aid the exercise of sentencing discretion?

(g) Whether procedural requirements should be formalised in legislation on matters such as:

(i) the giving of reasons

(ii) limitation of the protective element in finite sentences to a period proportionate to the predicted harm

(iii) a requirement to state the proportionate element of finite protective sentences

(iv) prior notification to defence counsel of the possibility of a protective sentence

(v) automatic referral to the Court of Appeal for review

(vi) parole review when the proportionate period expires?

8. Sentencing Multiple Offenders

8.1. Introduction

Multiple offenders are those convicted of a number of offences arising from a single incident and those convicted of offences committed on separate occasions over a period of time, but all dealt with at the one trial. There may be a wide variety of crimes of varying degrees of seriousness, or crimes of a similar nature, and the period over which the separate offences took place may be a lengthy one or one of a few hours. The high proportion of cases which involve more than one offence and, in some instances, numerous offences, means that any sentencing guidance must provide for the particular issues raised by multiple offenders. In addition, this sentencing is a frequent cause of public confusion and disquiet about the sentencing process, especially in view of lack of understanding and/or acceptance of the three main approaches, namely concurrent and cumulative sentencing and the application of the totality principle.

As a preface to the discussion of these issues it should be noted that prosecution charging practices are of particular relevance to the sentencing of multiple offenders. When faced with such offenders, the prosecution has a discretion as to whether to charge all the offences, the most serious of the alleged offences (which may or may not still enable the court to take other offences into account in sentencing), or to press a general encompassing charge. Any attempt to constrain sentencing discretion in this area would be particularly vulnerable to subversion through changes in prosecution practices so as to achieve a fitting result in the eye of the prosecution, unless prosecution discretion in such cases were also constrained.

8.2. Cumulative and Concurrent Sentencing

The most obvious approach where an offender is being sentenced for more than one offence is to simply impose one sentence for each offence and total up the sentences (cumulative or consecutive sentencing). The problem with this is that it may encourage prosecutors to bring as many charges as possible even in the case of a single incident, if this will lead to longer sentences than single (encompassing) charges with aggravating features. This would greatly increase the complexity and duration of trials. Another problem is that it could lead to prison sentences for a series of offences which taken as a whole would not merit such a sentence.[7]

The other main approach is to impose separate sentences for each offence but have the offender serve them concurrently.

In New Zealand statutory guidance on cumulative and concurrent sentencing is limited to the permitted combinations of different kinds of sentences (Criminal Justice Act 1985, ss8A, 13, 73). There is no statutory guidance as to considerations to take into account in deciding whether sentences are to be cumulative or concurrent. Such considerations have emerged from case law.

8.2.1. The single transaction rule

The general rule and starting point is that where each offence is a separate transaction and unrelated to the others in time, subject matter, and modus operandi, a cumulative sentence is preferable. Cumulative sentences have nevertheless been considered appropriate where the offences are virtually simultaneous but involve different types of criminality (Hall 1993–97, D/759–2).

Where the offences arise out of the one course of conduct or activity and are truly connected with each other (part of a single transaction), then the sentences for those offences should normally be concurrent. In determining whether offences are part of a ‘single transaction’, relevant questions are whether the offences are related by time, subject matter, or pattern so as to constitute the invasion of the same legally protected interest, for instance, they are all property offences (Hall 1993–97, D/753–2). The rationale for concurrent sentences in such cases is that cumulative sentences would in effect be punishing the offender twice for the one wrongdoing.

As Hall notes, “there is no hard and fast rule” which can be applied in every instance. The particular facts of the case may make it difficult to determine the ‘one transaction’ rule, and the judge’s view of the gravity of the conduct, as well as the available maximum sentences, will be relevant (Hall 1993–97, D/754).

The English courts have held that the single transaction rule does not apply when offending is accompanied by firearms offences, assault against law enforcement officers, or subsequent attempts to pervert the course of justice. The rationale is that cumulative sentences are necessary to mark the gravity of this offending and for deterrent purposes (see Ashworth 1992, pp193–4).

One arguable point is whether offences are classified as a single transaction when they are committed against the same victim, even if distant in time. Ashworth argues that for some offences the same victim criterion should override the requirement for proximity in time, for instance with respect to occasional acts of fraud against a single employer over a long period (Ashworth 1992, p194–5). In some cases, the English courts have viewed a series of thefts in the course of a day on different premises (i.e. with separate victims) as a single course of criminal conduct, and sometimes separate sexual offences over time involving the same victim will attract cumulative penalties. Particular instances where this question is relevant are where domestic violence or incest is involved, as this often concerns a lengthy pattern of offending against the same victim(s).

8.3. The Totality Principle

A further consideration is that sometimes cumulative sentences might add up to an extremely long term of imprisonment, which may even exceed the offender’s future lifetime or give a longer sentence for a number of burglaries or car conversions (as examples) than would be given in a rape case. The courts have accordingly evolved a ‘totality principle’. Under the totality principle the sentence for each offence should be decided on as if in isolation. The judge then considers the total sentence as against the general level of gravity of the individual offences. If the sentence is deemed excessively harsh or disproportionate, the judge achieves a fitting result by making some or all of the sentences concurrent, and/or by progressively reducing the cumulative sentences for each additional offence. The totality principle is also applied when sentencing an offender who is already undergoing a sentence (Hall 1993–97, D/745/2–753/2).

The England and Wales Criminal Justice Act 1991 actually states this principle by providing that nothing in the Act “shall prevent the court ... in the case of an offender who is convicted of one or more other offences, from mitigating his sentence by applying any rule of law as to the totality of sentences” (s28(2)(b)).

The application of the totality principle calls for assessment of proportionality between offences, as is the case with just deserts. It is a more difficult assessment than that which applies to single offences, requiring comparisons for instance between the appropriate overall sentence for a number of burglaries as opposed to one rape. To aggregate the sentences for the burglaries so that the total equated to, or exceeded, the normal sentence for rape would result in a loss of proportionality between these two offence types. Hence the totality principle is applied to assess how the total conduct compares with other offences which would attract a similar level of sentence. The principle is that the aggregate sentence is kept below a level which would normally be imposed for much more serious crimes than the ones being sentenced. The totality principle is most often applied to prison sentences and fines, but also has relevance to community-based sentences, where the practical burden of multiple obligations must be recognised.

English academic, David Thomas has argued that the total sentence should be no more than the normal sentence for the most serious of the offences under consideration (see Hall 1993–97, D/746). This principle has with some exceptions generally been viewed with little favour by the New Zealand courts which have preferred an approach adopted by the Court of Appeal in R v Williams [1988] NZCA 70; (1988) 3 CRNZ 409 (CA) whereby the sentence for the major offence should reflect the total appropriate for the whole course of criminal conduct, and that concurrent sentences for the lesser sentences should then reflect the gravity of each offence (see Hesketh and Young 1994, pp68–9; and Hall 1993–97, D/746–747/2). Other possible principles for the length of the total sentence are that the aggregate sentence should not exceed the maximum sentence for the most serious of the offences, and that the total sentence is fitting to the offender’s record and prospects (and that mitigating factors are taken into account).

8.3.1. The totality principle and deterrence

The objection often raised to the totality principle is that it amounts to discounting for bulk offending. This is seen to weaken the deterrent effect of sentencing. The effective sentence for each additional crime progressively decreases, meaning there is no inducement for an offender after offending once to refrain from crimes of the same or different sort at a slightly later date. This assumes that offenders are rational and well-informed calculators of the cost/benefit of committing offences and that the likely sentence is a major determinant of offending behaviour. This is by no means certain, as discussed in section 3.2 above. A related point is that additional offending may lead to increased chances of detection, which may be a deterrent at least as significant, if not more so, than the actual length of sentence.

The totality principle is an example of proportionality and the principle of restraint combining to temper the pursuit of deterrence through heavier sentences. The courts have, nevertheless, recognised a need to balance totality with deterrence and adequate denunciation of the conduct involved. The New Zealand courts would seem to be in sympathy with the South Australian judgment that those who continue to commit serious offences must not be allowed, through concurrent sentencing on the basis of totality, to escape long terms of imprisonment (see Hall, 1993–97, D752).

8.4. Total Sentence Option

An alternative to concurrent or cumulative sentencing is the option of imposing a single sentence upon conviction on more than one count. The Crimes Act 1961, s340(7) allows this, provided that the sentence is justified by any one of the counts. This in effect amounts to sentencing only for that count. New Zealand courts have held the single sentence option to be “undesirable”, and present practice involves cumulative or concurrent sentences for each count (see Hall 1993–97, D/744).

The single sentence option is used in Germany, the Netherlands, Austria, Finland, and Sweden. It is more accurately described as a ‘total sentence’ in that it is intended to reflect the totality of the offending, rather than one particular offence as in the New Zealand provision. In Finland, where there are multiple offences, the courts are directed to pass one single sentence for the main offence and the secondary sentences are treated as aggravating circumstances (Törnudd 1994, p13). A practical advantage of the single sentence option is that it makes it easier to calculate parole and remission.

The ‘total sentence’ option was recommended by the Canadian Sentencing Commission on the basis that the practice of concurrent and cumulative sentencing was too obscure and confusing. It was also justified on the observation that the courts had shown themselves to be more interested in the appropriateness of the final sentence than in the actual process by which it was calculated. The proposed process was nevertheless not simple. As with the normal application of the totality principle, the court would first decide the appropriate sentence for each offence and place this on the offender’s criminal record. These individual sentences would be appealable. The totality principle would then be applied to arrive at the final sentence. A formula was suggested for the upper limits of these ‘total sentences’, namely the lesser of the sum of the maximum penalties for each offence or the maximum for the most serious offence plus one-third. For practical reasons, normal consecutive and concurrent sentencing would apply where the offender was already serving a sentence (Canadian Sentencing Commission 1987, pp218–27).

This proposal possibly has greater integrity and clarity than the normal operation of the totality principle in that it actually is a sentence to reflect the gravity of all the offences, rather than a series of separate sentences which are so combined and/or so reduced so as to add up to the appropriate totality. A further advantage is the recording of the actual deserved sentence, which at least retains the expressive function of sentencing for each individual offence. This is something which could be required to be recorded even under the normal operations of the totality principle through cumulative and/or concurrent sentencing.

The total sentence concept may not be inappropriate in New Zealand, given that the Court of Appeal has affirmed that it will not interfere with the individual components of a sentence so long as it correctly reflects the overall criminality. In R v Swain (CA158/92, 8 July 1992) [1992] BCL 1501, the Court stated “Precisely how the total sentence was made up in a formal sense is unimportant so long as it accurately reflected the culpability involved” (see Hall 1993–97, D/761). Where sentences are applied concurrently, the Court has stated that each sentence should properly reflect the gravity of the offending. The rationale for this is provided in the Williams case cited above, namely that the offender is not only entitled to know the Court’s view of “the seriousness of each offence, but it is also important that records of the sentences imposed give some indication of the gravity of each offence as such records may be relevant to further consideration of the facts of the case by another Court or for the purposes of the Criminal Justice Act 1985” (e.g. parole) (Hall 1993–97, D764–766).

8.5. Summary

  1. Sentences for several offences being heard at the one time can be either cumulative or concurrent. New Zealand has virtually no statutory guidance on the application of these options.
  2. Concurrent sentences are usually imposed when the offences at issue are deemed to be part of a single transaction, especially if constituting invasion of the same legally protected interest.
  3. The totality principle is used by the courts to ensure that aggregate sentences for a number of offences do not become disproportionate to sentences for more serious offences, nor a crushing burden on the offender. The total sentence may be reduced accordingly.
  4. Issues for consideration include:

(a) Whether legislative or regulatory guidance should be provided as to when cumulative and concurrent sentencing is appropriate, including guidance on the single transaction rule?

(b) Whether a single total sentence is a more accurate reflection of the sentencing process under the totality principle than the current practice of combinations of concurrent and cumulative sentences?

(c) Whether the individual sentence applied for each offence should be recorded to mark denunciation of that conduct, irrespective of whether that sentence stands, is amended under the totality principle, or replaced by a total sentence?

(d) Whether legislative or regulatory guidance should be provided as to the upper limits of any combined sentence under the totality principle or a single total sentence?

9. The Role of Victims in Sentencing

9.1. Introduction

Victim input into sentencing decisions is most in keeping with the objective of restitution, which places the victim and what the victim has suffered at the centre of the sentencing process. It also reflects the common sense perspective that it is the victim who has suffered so his or her views should count. Examinations of the role of the victim in sentencing often focus on the assessment and awarding of compensation, often through an agreement between the victim and the offender. (See section 3.5 for discussion of the principle of restitution, and Ministry of Justice 1995 for analysis of restorative justice options for New Zealand). Victim participation in the sentencing process may, nevertheless, have goals additional to, or quite different from, compensation or reconciliation. Victims may seek to ensure that the court and the offender are aware of the impact the offence has had on them. They may seek to ensure that the offender is properly punished, that opportunities for rehabilitation and forgiveness are provided, or to make certain that they and others are protected from further harm from the offender. This chapter discusses the possible roles of victims in the sentencing process. It does not refer to pre-trial procedures or victims’ roles as complainants or witnesses.

In recent years there has been increased attention to the needs of victims in the criminal process. This attention has focused on the primary victims of crime. Primary victims are defined as those who are directly affected by the offender’s actions and who suffer physically or emotionally or experience some loss of, or damage to, their possessions. For certain types of offences, such as corporate or business fraud, the primary victims of any one offender may be numerous. Primary victims also include family members of victims of homicide.[8] Secondary victims, that is people who suffer through their relationship with the primary victim (family, friends, work colleagues) or through witnessing the crime, have nowhere to the same extent been included in the formulation of rights for victims of crime.

9.2. New Zealand Legislation and Practice

The Victims of Offences Act 1987 and the Criminal Justice Act 1985 provide for limited victim input into the sentencing of adult offenders. These provisions do not include a legal right for victims to make representations either directly or through a legal representative as to what sentence an offender should receive.

9.2.1. Victim impact statements

Section 8 of the Victims of Offences Act requires victim impact statements to be made available to the sentencing judge in order that the judge “is informed about any physical or emotional harm, or any loss of or damage to property, suffered by the victim through or by means of the offence, and any other effects of the offence on the victim”. This information is to be conveyed to the judge “either by the prosecutor orally or by means of a written statement about the victim”.

Section 8 does not provide guidance to the court as to how the information contained in a victim impact statement is to be used in determining sentence. Nor have the courts themselves developed guidelines on the central question of the weight to be given by a sentencing judge to the consequences of offending as set out in victim impact statements. The approach seems to be that the victim impact statement is one of the numerous factors that need to be taken into account in determining the gravity of the offending and the culpability of the offender in whatever way the judge considers appropriate (see in particular Lowe v Police (1988) 3 CRNZ 199 cited by Hall 1993–97, D169–170; also Hall 1992, pp157–9). The courts have been explicit that it is not appropriate for there to be a suggestion to the court from the victim as to punishment, with the exception of a plea for clemency (see R v B, unreported, 14 June 1989, HC Dunedin S.8/89, cited in Hall 1992, p161 and Hall 1993–97, D173).

Another important point about victim impact statements is that, as a general rule, they should not include any aggravating circumstances relevant to the determination of sentence except those encompassed by a plea of guilty or proved in the course of the trial. Further circumstances may only be included if they can be substantiated by the prosecution (Hall 1992, p149).

9.2.2. Victims’ influence regarding compensation and reparation

The Criminal Justice Act contains several provisions by which the victim may influence sentence. Section 12 allows the sentencing judge to take account of any offer of compensation to the victim (whether financial or by way of the performance of any work or service) made by, or on behalf of, the offender. When determining the weight to be given to such an offer, the judge may consider the extent to which the offer is accepted by the victim as “expiating or mitigating the wrong.”

Victims may also have input into the determination of reparation orders. Sections 22 and 23 provide that where the court requires further information to satisfy itself as to the nature of the emotional harm, or the value of the loss or damage incurred by the victim, and it is clear in property cases that the sum involved is going to exceed $500, the court may order the preparation of a report by a probation officer or some other designated person. This person must firstly seek agreement between the offender and the victim as to the amount that the offender should pay. If no agreement is reached the officer estimates the value in property cases or states that the matter is unresolved. There is no requirement for the victim to meet the offender, and generally the officer acts as an intermediary between them. (For further discussion of the legislative provisions for compensation and reparation and their use in New Zealand see sections 3.5.3 to 3.5.4).

9.3. Should Victims Have Direct Input Into Sentencing?

Arguments for victims to have a direct input into sentencing include:

  1. It goes some way to incorporating the concerns of the wider community (which is most likely to identify with the victim and feel threatened by the offender). It would be a way for the justice system to indicate to the community that it recognises that behind the impersonal role of the state is an individual with a personal interest in how the case is resolved.
  2. It is also seen to balance such rights as the offenders have regarding consideration of their circumstances at the sentencing stage through pre-sentence reports and s 16 of the Criminal Justice Act 1985. (This section provides for an offender appearing for sentence to call witnesses to speak about his or her cultural background, the way in which it may relate to the commission of the offence, and the positive effects it may have in helping to avoid further offending. See 10.4 for further discussion.) This ‘re-balancing’ could increase public satisfaction with the sentencing process.
  3. Victims may be assisted to come to terms with their trauma through participation in sentencing. Such participation may signal state recognition of the central position of the victims and thereby decrease feelings of marginalisation and lack of control. This may in turn encourage future victims to be more co-operative with the prosecution process and more likely to report crime.
  4. It may promote the rehabilitation of the offender through having to face the full extent of the victim’s reaction to him or her.
  5. At times, victim participation in sentencing may act as a further check on the use of imprisonment. For instance, victims may oppose imprisonment because they are satisfied with reparation and/or may have some sympathy for, and not fear further victimisation from, the offender. This is probably only realistic if the offender has shown remorse and there was some sort of victim/offender mediation. If it does not reduce imprisonment it may still lead to an increase in restitution sentences.

Arguments against victims making submissions on sentences include:

  1. It would compromise the role of the state in its assumption of responsibility for dealing in a detached and equitable manner according to the rule of law with those who break the rules of society. Offences against individuals are viewed as wrongs against the whole of society. They are dealt with by an arm of the state rather than by an interested private party because this will better ensure that proper procedures for establishing guilt are followed and that any sentencing of a proven offender is fair and just, and not motivated by revenge.

This system has been chosen because its ethical basis lends more stability to society compared with one in which victims can determine sentencing in a retaliatory fashion. It also means the wider needs of society in respect of the offence and offender are taken into consideration, e.g. the need to protect others from future harm from the offender or to denounce certain conduct. These needs will not necessarily be fulfilled in addressing the primary victims’ needs.

  1. Inconsistencies in sentences would arise due to the differing attitudes of victims towards their offenders (e.g. vindictiveness or mercy), or if sentences reflect the amount of information and co-operation the victim is prepared to give to the process. This has implications for the fairness, humanity, and denunciatory function of the sentencing system.
  2. A particular difficulty is the relative weight to be given to the unforeseen (as distinct from the intended or likely) results of an offender’s conduct. That is, should one offender receive a much more severe sentence because the victim suffered unusually serious side-effects, or another receive a lighter sentence because the victim responds particularly well to counselling?
  3. There are practical difficulties with regard to the extent that judges would feel able to take into account a victim’s views because of a victim’s lack of objectivity in many instances. Questions arise as to the degree to which the facts in victims’ statements should be put to the test. Not allowing a defence challenge is unfair to the offender, but cross-examination of the victim could amount to another form of victimisation.
  4. Victims’ expectations could be raised and they could lose considerable faith in the system when it does not fully take into account their wishes through the need to balance victims’ perspectives with competing rationales, objectives, and established sentencing practices.
  5. It could lead to sentences in general becoming more punitive which would have considerable resource and humanitarian implications.
  6. It could lead to more intimidation of victims, or retaliation by offenders or their supporters.

9.4. Victim Participation in Sentencing in Overseas Jurisdictions

In most states in the United States and at the federal level, legislation provides for the use of victim impact evidence at sentencing. This evidence incorporates a statement from the victim on the harmful consequences of the crime on his or her life. In some states, it may include the victim’s views on an appropriate sentence for the offender. Some states also give victims the right to appear before the court and address it on the subject of the offender’s sentence. Sometimes there are procedural limitations (e.g. a statement is only to be made available when there is a pre-sentence report), or the request for, or use of, statements is at the discretion of the judge. In other instances, the participation of victims in respect of sentencing goes beyond the letter of the law to include expressing an opinion to the court as to how the offender should be sentenced where no such legislative entitlement exists (Ashworth1993, pp504–5).

Research in the United States has indicated that the victim impact statements have not resulted in more severe sentences. One study showed that in sexual assault cases the sentences were explained by legal variables, such as offence characteristics and prior record, with no weight being given to victims’ recommendations. Another study showed that for more serious offences in general, victims’ expressed preferences for the offender to be imprisoned did not influence the courts’ selection of imprisonment or probation, and descriptions of the impact of the crime on the victim had a smaller effect on the selection of sentence than legal variables, and no effect on the term of imprisonment when that sentence was imposed (Erez 1990, pp27–8).

The United States has generally low proportions of victims submitting victim impact statements. A major survey of thirty-six states revealed only 27 per cent of victims made such statements, with slightly over half of those including a view as to what sentence the offender should receive (Ashworth 1993, p504). To the extent that victims have used the process, they have not been found to be harsher towards offenders than the public at large (whose attitudes are generally more punitive than is the practice of the courts). One study showed one third of victim impact statements in felony cases requested imprisonment for the offender (Erez 1990, p25).

In South Australia, victim impact reports are put before sentencing judge for the purpose of meeting the victim’s right to “have the full effects of the crime on him or her made known to the sentencing court” in accordance with that jurisdiction’s principles of victims’ rights. Any additional information “that may aid the court in sentencing including the restitution or compensation needs of the victim should also be put before the court by the prosecutor” (Declaration of Victims’ Rights 1986 quoted in Erez and Roeger 1995 (b), pp364–5). South Australia’s Criminal Law (Sentencing) Act 1988 states that victim impact material must be provided to the court by the prosecutor “for the purpose of assisting a court to determine sentence for an offence” (s7). It does not extend to including the views of the victim concerning the appropriate sentence.

Research in South Australia has found that the inclusion of victim impact statements did not result in disparity or undue severity of sentence. Indeed, analysis of sentencing patterns revealed no discernible effect. It was surmised this may be because the victim impact statements often contain information which judges may have been able to get from elsewhere, although it became more accessible through the statements. There was no increase in the awarding of restitution, which was attributed to the lack of resources among many offenders.

Possibly as a result of this lack of influence, victim satisfaction was not high. For victims who knew the sentence, the level of the sentence was the greatest determinant of their satisfaction. Unfulfilled expectations on sentencing increased dissatisfaction, and over two thirds of those who knew the sentence of their offender thought it too lenient. They wanted more use of imprisonment, licence revocations, community service, and especially more compensation orders (Erez and Roeger 1995(a), pp5–6).

Other fears about victim impact statements were not fulfilled. They did not increase the court time per case; challenges from the defence were rare and usually on money issues, and these were often resolved by agreement between counsel; and defence counsel were reluctant to cross-examine victims, especially on their mental trauma, as they were afraid it would harm their case (Erez and Roeger 1995(a), p5).

There are indications of caution as to the role of victim impact statements in sentencing and the merits of victims expressing their views on the appropriate sentence. The United States Supreme Court held in Booth v Maryland that victim impact statements are inadmissible in capital (death penalty) cases, on the basis that the jury’s decision could be swayed by “irrelevant factors such as the degree to which the victim’s family is willing and able to articulate its grief.” The Court did not express an opinion on use of the statements in non-capital cases (Wright 1991, p23). The British Victim Support organisation has stated that “there is no evidence ... that most victims would like the responsibility of deciding an offender’s future” (quoted in Wright 1991, p23). In the South Australian survey, there was agreement from legal professionals that victims should have an input into sentencing, but disagreement on how or to what degree. Notably, they objected to victims expressing a preference for a particular sentence (Erez and Roeger 1995(a), p7).

On the other hand, the growing movement for restorative justice options includes advocacy of more opportunities for victims and offenders to reach agreements as to the appropriate response to the offending, sometimes under the umbrella of court processes, and sometimes in an independent process. (See Ministry of Justice 1995 for further discussion).

9.5. Meeting Victims’ Needs

Arguments for a greater role for victims in sentencing are often tied to meeting victims’ identified needs in the criminal process. The Canadian Daubney Committee has identified these needs as being centred on:

Certainly in the case of restitutional orders there are good practical reasons for the victims’ specific input to be sought (as is currently the case with reparation in New Zealand). Similarly there are good reasons for sentencing decisions to take account of any offers of recompense, or the achievement of reconciliation between victim and offender, provided that this does not allow wealthy offenders to buy their way out of deserved sentences, and that there is no evidence that the victims’ agreement came under duress. A relevant question here is whether court processes should do more to encourage such victim/offender agreements, and if so what limits or safeguards should there be.

There is also a strong case to be made that sentencing decisions should not be made without the benefit of information of the effects on the victim (which is the purpose of the victim impact statement ). Questions arise as to whether victims’ needs in this respect would be better met through the chance to personally address the court on the effects of the offence, although only if the victim is willing to do so. Also at issue is the relative weight to be given to the victim’s statement of the effects of the offence as opposed to other considerations at sentencing.

The victim’s sense of marginalisation from the sentencing process could be lessened by ensuring greater transparency in the process. This could be achieved through articulation of the purposes of sentencing, including any special objectives or rationales which apply to the case at hand. The giving of reasons for decisions and the provision of feedback on how and why the victim impact statement did or did not influence sentence might also be useful. Accompanying procedures would be necessary to ensure this information is properly conveyed to the victim. There is an issue as to whether provision for feedback should be given in every case or only in specified serious cases. If the former were required, this could be resource intensive and, given the routine nature of most sentencing, provide little meaningful information to victims.

Perhaps the most significant question is whether victims’ needs would be better addressed by allowing victims to address the court as to the appropriate sentence for the offender, or to have this included in the victim impact statement. If this occurs, the issue is what weight should be given to the victim’s view on sentence. An associated question is whether victims’ frustration would be increased if they did not see their recommendations put into effect. As with feedback, there is the issue of whether any right of victims to address the court should be allowed in every case or only in certain types of cases.

9.6. Summary

  1. Aside from when an offender makes an offer of compensation to the victim or the victim’s views on the amount of reparation are sought, victims of crime in New Zealand do not have any direct say in the sentencing of offenders. The effect of a crime on the victim is, however, made known to the sentencing judge by means of a victim impact statement and is one of the factors taken into account when a sentence is determined.
  2. There are arguments relating to community responsiveness, hearing both sides of a case, and victim satisfaction in favour of the courts including victims’ views in their determination of offenders’ sentences, although other philosophical, ethical, and practical arguments can be made against such inclusion.
  3. A number of states in the United States permit victims to have a direct say as to what sentence the offender should receive. Only a small percentage of victims who have this right choose to exercise it. There has not been an increase in the severity of sentences where victims have had a say.
  4. Issues for consideration include:

(a) Whether court processes should do more to encourage victim/offender agreements as to the appropriate response to offence(s), and if so what limits or safeguards should there be?

(b) Whether victims in all or some cases should have the chance to personally address the court on the effects of the offence if they wish?

(c) Whether guidance is necessary as to the relative weight to be given to the victim’s statement of the effects of the offence as opposed to other considerations at sentencing?

(d) Whether articulation of the purposes of sentencing, the giving of reasons for decisions, and the provision of feedback on how and why the victim impact statement did or did not influence the decision (in all or selected cases) would increase victim satisfaction with the sentencing process?

(e) Whether victims in all or some cases should be allowed to address the court as to the appropriate sentence for the offender, or have this included in the victim impact statement? If this occurs, what weight should be given to the victim’s view on sentence as opposed to other considerations?

10. A Mäori View of Sentencing

10.1. Introduction

Any discussion of reform possibilities in the area of sentencing cannot overlook issues which have particular bearing on the sentencing of Mäori offenders. The starting points are the Crown’s special obligations to Mäori under the Treaty of Waitangi, and the considerable over-representation of Mäori in New Zealand’s prisons and corrections populations in general compared to their percentage in the general population. This imbalance is replicated in respect of indigenous peoples in Canada and Australia and racial minorities in Britain and the United States. In 1995 Mäori offenders accounted for just over half (51 per cent) of the non-traffic cases in New Zealand which resulted in imprisonment, for 48 per cent of cases resulting in a sentence of periodic detention and for 62 per cent of the cases resulting in community programmes (Spier 1996, p58). It is often asserted that bias in the sentencing process is accountable to a large extent for this problem, although it is very problematic to show that this is in fact the case in a systematic way that controls for variables such as age, criminal history, seriousness of offending, and legal representation.

The debates as to the causes of over-representation of minorities in prison both here and overseas have tended to focus more on the stages of the criminal justice system than on issues of the incidence of offending and offending patterns of the indigenous or minority groups in question. As has been pointed out elsewhere, this emphasis serves a number of political agendas both for minorities and governments (LaPrairie 1990, p430). For indigenous peoples it lends force to arguments in favour of a need for a parallel system of justice if the system of the dominant culture can be shown to be irrelevant or discriminatory in respect of them, which in turn may serve the larger goal of the development of self-government. For the governing interests it draws attention to the criminal justice system and away from inequalities in society which can only be addressed through major social and economic restructuring.

In New Zealand there have been studies that have controlled for some significant variables in testing for any bias towards Mäori offenders at the sentencing stage. When Gronfors (1973) controlled for socio-economic factors and seriousness of offending, he found that first offenders who were Mäori were still significantly less likely than non-Mäori first offenders to be discharged without conviction. Neill (1983) found no difference in sentencing according to ethnicity once type of remand, seriousness of offence, previous record, and age were accounted for. McDonald’s analysis of 1983 Justice statistics, taking type of offence into account but not seriousness of offence and previous convictions, found that Mäori offenders received more severe sentences (McDonald, 1987). Lovell and Norris (1990), using a cohort of New Zealand males born in 1957, came up with a finding that, even controlling for nature of offence, age, and prior offending, Mäori between the ages of ten and twenty-four appearing in court were more likely than non-Mäori to receive a custodial sentence. (See Crime Prevention Unit 1995, for summary of this literature.) Deane undertook a statistical analysis of the sentencing of offenders in two district courts for three types of offences (the files for one court covering 1989 and those for the other covering 1991) in an attempt to examine the extent to which gender and ethnicity influenced sentencing decisions. There were no significant differences in sentences for the different ethnic groups (Mäori, Pacific Islands, and Pakeha). Regression analysis was carried out to test whether or not there was an ethnicity effect on the sentencing of drug offenders and property offenders over and above the effect of the offence factors themselves. Offenders who committed multiple offences were excluded. The analysis found three factors were influential in determining the sentences for both sets of offenders. These were the type and seriousness of the offence and previous convictions, which explained 30 per cent of the variance. The pre-sentence report recommendation accounted for another 5 per cent of the variance. Ethnicity was not found to be a significant factor in predicting the sentence (Deane 1995).

It may be that the issue of the Mäori imprisonment rate does need to be principally viewed as one of social and economic marginality. This may also act against Mäori offenders at the sentencing stage in terms of their suitability for community-based or financial sanctions, and in terms of Mäori communities’ ability to provide and sustain community-based programmes or other alternatives to imprisonment. If that is the case then, even though the criminal justice system is not the vehicle for major social and economic restructuring, there is still the possibility that institutional changes within the various stages of the system, including sentencing, could reduce the impact of social and economic disparities between groups. At the sentencing stage, this could involve the development, with Mäori communities, of viable alternatives to imprisonment and the other available sentences and orders, which would be particularly appropriate to Mäori offenders.

10.2. Mäori Perspectives

Moana Jackson in his 1988 report, The Mäori and the Criminal Justice System, He Whaipaanga Hou, discusses the concept of cultural remedies for “criminal” behaviour (pp217–18). He cites the example of muru, a traditional form of redress in Mäori society prior to, and for several decades following, European settlement. Muru was extracted from the perpetrator of a wrongdoing by way of the transfer or seizure of the perpetrator’s goods or taonga or those of his or her family, or through service, depending on the extent of the offence. Negotiations usually preceded this course of action, so that the amount or form of compensation had largely been agreed beforehand.

Muru is one way through which utu may take place. The larger concept of utu is not an easy one to define and does not simply equate to punishment or revenge. There are several dimensions to its meaning, some of which have nothing to do with punishment at all. It can be about rewards or the exchange of gifts for instance, depending on the situation out of which the need for utu arises. At one level it does include punishment or retribution for the disturbance of social relationships (see Walker 1990, pp69–70; Patterson 1991; and Pratt 1992, pp35–6). Other sanctions included banishment and death.

Mäori customary society and philosophy, which encompassed a legal order, had a concept of whanaungatanga, or kinship. This assumes the primacy of kinship bonds in determining personal action, responsibility, mana (status and self-esteem), and social rights. From the lore of utu came responsibilities for the ongoing performance of social obligations, and from the concept of manaakitanga came the need to respect and look after others or, conversely, not to benefit oneself at the expense of others. The traditional Mäori legal order was values-based rather than rules-based, with an adherence to fundamental principles and beliefs that enabled disputes to be settled without the intervention of an outside agency. This customary law did not depend on rules written down by a particular body of leaders which could only be changed by that same body, but on broad principles governing relationships between people that were general enough for their application to be changed over time in response to changing circumstances (see Durie 1994). Mäori chiefs had considerable discretion in relation to the measures used to seek redress.

10.3. Differences Between Mäori and European Perceptions

As the preceding discussion indicates, there are some fundamental differences between how a eurocentric legal system responds to crime through court-based prosecution and sentencing, and traditional Mäori concepts and practices involved in utu and muru. These differences were evident from the earliest colonial days when British penology was introduced to New Zealand. The sanction of imprisonment which involves removing offenders from the public sight and which was becoming a cornerstone of British justice was totally alien to the generally public nature of Mäori sanctioning practices. These Mäori practices were systematically made illegitimate through a legal process largely completed by 1900 (Pratt 1992, pp39–68).

Of the differences between Mäori and European concepts, one of the most radical and hardest to understand is that while sentencing is a response to offending against a prohibition laid down in law (which is generally intentional offending), utu does not commonly relate to what are considered offences in traditional Mäori law (i.e. breaches of tapu), but to insults and injuries to other people which reduce their mana. Socially harmful behaviour (hara) was that which caused any imbalance in the social equilibrium, and a distinction between civil and criminal matters did not arise. Utu is essentially a mechanism for restoring or maintaining mana, and a mechanism for maintaining harmony and balance. This may be a collective matter involving kinship groups or an individualist one, more commonly the former.

This leads to further differences. Whereas European law tends to focus on individual blameworthiness, Mäori will often regard a whanau or other kinship group as the rightful recipient of, and/or the party responsible for extracting the utu. The counterpart to this is that utu may be exacted from any individual member of an offender’s group, irrespective of whether they were involved in the wrongdoing. The original action over which utu is demanded need not be an intentional one, since under the concept people must accept responsibility if they are capable of affecting another’s mana and do so. Nor do mitigating circumstances come into consideration as a reason for avoiding utu. Decisions as to the form the utu should take in any particular case are not made by an independent authority but by the parties themselves, which would normally mean negotiations between the kinship groups involved.

Utu in general does not aim to reform or rehabilitate the erring party. Given Mäori conceptions of kinship, the concept of muru can, nevertheless, incorporate the idea of group responsibility, thereby bringing an offender back into the communal fold, which does have a rehabilitative element. It can be viewed as retributive, but also as a means of redressing a wrongdoing when it takes the form of muru involving relief or compensation for the wronged party. There is also sometimes an emphasis on reconciliation, with the utu not being unwelcome or unpleasant. The interests of the victim and his or her whanau or iwi were critical in the administration of this form of justice.

Despite these differences there are some points of similarity with European concepts underlying sentencing. The sense of utu as restoring harmony can be compared with the concept of sentencing as punishment that is necessary to restore a disrupted balance (see 3.1.1). The sentencing rationale of restitution is also of relevance here, as it addresses the idea of restoring a disrupted balance in a more concrete sense (see 3.5.1). Notions of victims, offenders, and their supporters getting together to discuss the appropriate response to an offence are discussed in the Ministry of Justice’s 1995 discussion paper on restorative justice. These concepts are also of relevance to the discussion of victims’ roles in sentencing (see Chapter Nine).

The discussion in the preceding chapters on sentencing by the courts is, nevertheless, at odds with much that is critical to a traditional Mäori concept of justice. Sentencing is a response to legally defined offences, and is imposed by an institution of the state rather than being a response to wrongdoing decided through discussions by the parties themselves. The foregoing discussion is predicated upon a particular notion of criminality and criminal liability different from that in Mäori law, i.e. one of individuated criminal responsibility rather than collective responsibility and indirect liability. This leaves to one side the even more difficult issue of how criminal behaviour is defined, as a European system of criminal law is obviously very different from one that would be based on mana and tapu.

10.4. Criminal Justice Act Provisions

Although the sentencing stage is unlikely to be the best place to address the problems of cultural discrimination in the administration of criminal justice, it is important that sentencing at least not exacerbate any inequities and preferably be able to have some corrective influence. The limitations as to the effect that the sentencing stage can have stem from the fact that sentencing follows a number of earlier stages in the criminal justice system which select and process offenders. This means the disproportionately high number of offenders serving custodial sentences who are Mäori may not be due to any systematic bias at the sentencing stage.

The Criminal Justice Act 1985 does, however, attempt to make the sentencing process more open to Mäori and minority cultural perspectives in an effort to address cultural bias. This is by means of s16 and other sentencing provisions, although the Act is viewed with some scepticism by Mäori (see Jackson 1988, pp244–5, who sees problems both in the legislation itself and in its interpretation and implementation in culturally insensitive ways). Section 16 allows an offender appearing for sentence to request the court to hear witnesses he or she wishes to call, who will speak about his or her ethnic or cultural background, the way it may relate to the commission of the offence, and the positive effects it may have in helping to avoid further offending. The court shall hear that person unless it is satisfied that, because the penalty is fixed in law, or for “any other special reason”, it would not be of assistance. It is not immediately apparent what would constitute a “special reason”, although there is nothing to indicate that judges are declining to hear cultural witnesses. The relevance of a particular cultural witness to the sentencing process may be to assist the court, in its determination of what might be an appropriate community-based sentence, through giving advice about community resources relevant to the offender’s culture that could be involved in the sentence.

Cultural considerations have had some influence on the nature of some of the community-based sentencing provisions in the Criminal Justice Act. In particular, the definition of a “programme” in s2 allows for Mäori communities to assume responsibility for offenders, albeit within confines sanctioned by the formal justice system. The definition states that a programme may include:


Placement [of offenders] in the care of members of an appropriate ethnic group, such as a tribe (iwi), a subtribe (hapu), an extended family (whanau), or marae, or in the care of any particular member or members of any such group, such as an elder (kaumatua).

This is particularly relevant to the sentence of community programme, but also has relevance for parole orders. Also relevant in terms of allowing a response more in keeping with Mäori values, are s12 which allows for an offer of compensation to be taken into consideration when sentencing, and sections 22 to 25 which provide for reparation.

Although the existing sentencing system includes these provisions, as the above discussion on the Mäori view of responses to wrongdoing makes clear, a court adjudicative process is far from being an ideal context for these dispositions to gain cultural acceptability by Mäori. Furthermore, the existence of these provisions does not appear to have alleviated the problem of Mäori over-representation in the corrections system.

For reasons of completeness, it should be noted that that there have also been some procedural adaptions in the criminal justice system which more closely accord with Mäori concepts and practices. The most significant is probably the introduction of family group conferences for young offenders under the Children, Young Persons and Their Families Act 1989 that involve meetings with the youth offender, his or her family, and victims to work out a satisfactory resolution to the offence. Some pilot schemes have been set up in three districts involving enhanced diversion procedures for adult offenders who are referred to community panels. The panels develop community-based options and programmes for the offenders. One of these schemes, running in Auckland since April 1996, is called the Whanau Awhina programme. It is targeted specifically at Mäori and is based at the Hoani Waititi marae with panellists who are members of the marae whanau. There have also been, in recent years, some locally-based and informal initiatives by Mäori, outside of the courts altogether, that have involved marae-based hearings to deal with some types of offending which the victims did not want dealt with by the police.

10.5. Summary

  1. Mäori are significantly over-represented in the corrections population.
  2. Although the sentencing system may not be the primary cause of this over-representation, nor the best place to address it, the sentencing system should, nevertheless, not exacerbate any inequities and preferably should have a corrective influence.
  3. There are considerable differences between traditional Mäori and European views of crime and how to respond to it, especially in terms of intentionality, individual versus group responsibilities, and the Mäori emphasis on maintenance of social relationships and negotiation between victim and offender groups to determine appropriate responses. This means that despite some provisions in the Criminal Justice Act which provide for a Mäori perspective, there are fundamental differences between court-based prosecution and sentencing and Mäori concepts.
  4. Issues for consideration include:

(a) Whether there should be further review of the issue of alternatives to imprisonment that would be culturally appropriate to Mäori offenders in an effort to address the high rate of Mäori imprisonment? This would involve looking at the appropriateness and current use of community-based sentences in respect of Mäori offenders.

(b) How should such a review take account of the important respects in which traditional Mäori concepts of justice and law differ from concepts intrinsic to the New Zealand legal system?

(c) Should victims and the offender’s whanau have a greater role in the sentencing of Mäori offenders, and if so how could this be achieved?

11. Forms of Guidance

11.1. Introduction

There are essentially three issues which arise in addressing how sentencing policy is to be developed. These are:

The starting point for the first issue is whether there ought to be an overall rationale, purpose, or policy stated in any sentencing guidance; a number of stated rationales or goals; or no stated rationale at all. In the event that a criminal justice system decides to formulate sentencing guidance, and whatever means are chosen to achieve this, a logical first step is the establishment of (an) overall purpose(s) or policy(ies) for sentencing (whether or not these are stated). It may also be desirable to establish rationales or goals for individual sentencing decisions, including rationales or goals specific to particular types of offence and/or offender. The means of guidance should then be chosen so as to properly communicate, or at least be consistent with, these rationales and policies, and to ensure that as far as possible sentencing decisions are based on these. In principle it should be possible to achieve plurality in sentencing aims. This was discussed in section 3.6.

This chapter deals with the second issue, that of the means of sentencing guidance.

11.2. Issues in Developing Sentencing Guidance

An important issue to be confronted arises from the near certainty that the more restrictive any guidance is on the sentencing discretion of judges, the greater the likelihood that the decision-making power of prosecutors will increase. When there is more certainty of sentence for any particular offence, the nature of the charge laid increases in significance and prosecutors can effectively choose the sentence by choosing the charge. This suggests that perhaps charging and plea-bargaining guidance needs to be developed to operate in tandem with any sentencing guidance, depending on how prescriptive the latter is.

A related issue is the extent to which early release on parole, remission of sentence, or review of sentence should be incorporated in any sentencing guidance system. An absence of guidance to structure the decision-making power of parole boards and correctional authorities may simply introduce indeterminacy and inconsistencies at the end of the sentencing process rather than at the courtroom stage, and transfer power from the judiciary to those other bodies.

A further point is that the development of sentencing policy and guidance, and the means to implement it, needs to be accompanied by ongoing monitoring to determine whether the desired results are being achieved, and whether amendments are necessary. Mechanisms are also needed to ensure adequate provision of information to judges, for instance through a sentencing information system and/or seminars.

The remainder of this chapter outlines options as to possible forms or systems of guidance. The means of sentencing guidance is a different issue from that of where the responsibility for guidance formulation should lie (as discussed in Chapter Twelve). The forms of guidance could in principle be provided by any one of the following: the legislature (through statutes); sentencing commissions; ministerial directive; or the judiciary at appellate stage. All of the options discussed could to a greater or lesser degree operate in conjunction with appellate guidance (if they were not being provided by the appellate courts in the first place), and indeed often rely on appeal judgments for their further development and more specific application. This is particularly relevant to guidance systems which establish principles and policies and presumptive sentences. A mix of principles (in this case incorporated in legislation), presumptive sentences and judicial development through appellate review was proposed by the Canadian Sentencing Commission (1987), the Victorian Sentencing Committee (1988), and the Australian Law Reform Commission (1988). The same mix was established in the England and Wales Criminal Justice Act 1991. Here the Court of Appeal was given the explicit roles of developing the legislative principles, shaping sentencing practice in the lower courts, and providing the means to pursue consistency in sentencing practice.

11.3. Mandatory and Minimum Sentences

The most restrictive way of governing the sentencing process is through the use of mandatory sentences. These require judges to apply a particular sentence for every conviction for a certain crime. This gives the judiciary no discretion to adjust a sentence according to aggravating or mitigating circumstances, so that there is no distinction between like offences of varying severity. Considerations of culpability cannot be taken into account in sentencing, so the least serious incidence of an offence is treated exactly the same as the worst possible case. This is potentially a problem depending on the extent to which offence categories are broad or narrow. No distinctions are made on the basis of the characteristics of the offender such as his or her personal characteristics, past offending, previous sentences, or the effect of a particular sentence on the offender.

An only slightly less restrictive approach is the prescribing of mandatory minimum sentences, which the courts can exceed but not go below. Depending on the level at which the minimum is set, this can lead to unduly harsh penalties for offences of least culpability. For serious criminal conduct, mandatory minimum sentencing laws are often redundant, in that such offenders are, in any case, likely to receive prison sentences longer than the mandatory minimum. Another variation is that contained in California’s Determinate Sentencing Act of 1976 under which there is a standard sentence for each offence, together with an aggravated sentence and a mitigated sentence. This means a choice of three prison sentences for the most serious crimes, although for others the judge has an initial choice of prison, probation, or jail (short custodial sentences).

The history of these sorts of determinate sentencing regimes in overseas jurisdictions (particularly the United States) shows a significant degree of circumvention by judges, prosecutors, and juries where the sentences are considered by those parties to be excessively harsh for offenders of minor culpability. There is an increased incidence of plea bargaining. In return for guilty pleas, prosecutors will charge lesser offences which do not carry a minimum sentence. Judges and juries will opt for ‘sympathy’ verdicts, with the former also adopting increasingly strict interpretations of technicalities and procedural rules in order to discharge cases. All these practices have tended to have an inbuilt racial bias to the disadvantage of minorities. Except where a favourable plea bargain is achieved, defendants tend to make more vigorous efforts to avoid conviction and to delay sentencing where a mandatory sentence applies. This results in higher not-guilty plea rates, and trial rates (including appeal rates), and case processing times increase. Research on mandatory sentencing laws in the United States during the 1970s showed a decline in conviction rates for those arrested after the enactment of such laws. This tended to offset increases in the imprisonment rates for those convicted, so that the overall probability that defendants would be imprisoned remained about the same, although the length of sentences for those convicted did increase. Hence there were increases in the prison population (Tonry 1992, pp253–67).

In conclusion, findings suggest that mandatory sentencing laws, at least in the way they have operated in the United States (where there often seems to be an imbalance between the gravity of the crimes covered and the severity of the sentences), are not an especially effective approach to achieving certainty and predictability in sentencing. One commentator has gone so far as to say that mandatory minimum sentences “are to sentencing uniformity what a meat axe is to brain surgery” (Wallace 1993, p13).

A variation on mandatory sentences that avoids many of their undesirable side effects is to make them presumptive, so that judges have authority to disregard them and impose some other sentence if there are significant mitigating circumstances (which the sentencing judgment would have to set out). Presumptive mandatory sentences do, however, suffer from the same problem as the use of maximum penalties as a guide to day-to-day sentencing practice where (as in New Zealand) substantive offence categories are very broad and encompass behaviour of widely varying degrees of seriousness. Where this is the case, injustices could only be avoided if substantive offence categories were defined much more narrowly (with all the attendant difficulties discussed in Chapter 2) or if departures were so frequent as to make the presumptive sentences meaningless.

Alternatively, the sometime harshness of mandatory sentences could be ameliorated by having them attended by more discretion for corrections or parole officials when it comes to determining the release date of those serving such sentences.[9]

11.4. Numerical Sentencing Guidelines

Numerical guidelines are less restrictive than mandatory sentences, but still leave little room for judicial discretion. They can assume various guises, but essentially establish presumptive sentences or sentencing ranges according to various combinations of specified offender and offence characteristics. Judges are permitted to depart from the guidelines provided that reasons are given. The constraints on judges are clearly dependent on the breadth of the ranges set down, and the variety of circumstances under which departures are permitted or not permitted.

Probably the most quoted example of numerical guidelines are those introduced in 1980 for prison sentences for felonies (more serious offences) in the state of Minnesota by a sentencing commission. There is a two dimensional grid with (serious) criminal offences divided into ten categories along the vertical axis and seven offender groups (split according to previous convictions) across the horizontal one. A line appears on the 70 cell grid and those cells appearing above it carry a presumption of non-imprisonment, while for offenders whose circumstances place them below the line, the presumptive sentence is one of imprisonment. (In the United States ‘imprisonment’ refers to custodial sentences of twelve months or more, administered at state level, and does not include custodial sentences of less than twelve months, which are jail sentences administered at the local level). The cells below the line indicate a single fixed sentence in months, although they also include a sentencing range of around 8 per cent either side of the fixed figure, with the range being widest for the longer prison terms. For ease of illustration, a copy of the grid is included as an appendix to this paper.

The judge may depart from the range on the basis of “substantial and compelling circumstances” which must be specified in writing and there are non-exclusive lists of mitigating and aggravating factors to use in this regard. There is also a list of factors that a judge is not permitted to take into consideration as reasons for departing from the guidelines. This list includes ‘status’ factors such as race, sex, employment situation, residence, and marital circumstances. Both the defence and the prosecution have a right of appeal against sentence if it is outside the presumptive range.

A second variety of numerical guidelines is that instanced by the Federal Sentencing Guidelines produced by the United States Sentencing Commission of 1984, which took effect on 1 November 1987. Like the Minnesota guidelines there is a sentencing grid, although this one has forty-three rows for offence categories and six columns in which to place the offender’s criminal history score. The cells where columns and rows intersect indicate a sentencing range with the minimum and maximum incorporating a range of usually six months for the least serious offences and as much as eighty months for the most grave ones. Federal judges may depart from the guideline ranges only if the case involves “an aggravating or mitigating circumstance of a kind or to a degree, not adequately taken into account by the Sentencing Commission in formulating the guidelines”. No personal characteristics such as the offender’s age, employment record, family life, or number of dependants can be taken into account in order to reduce the length of a sentence.

The offence level is arrived at by starting at a certain base score related to the category of offence and then adding and subtracting points for various aggravating and mitigating characteristics to arrive at a final offence score between one and forty-three. For example, the offence of burglary has a base score of twenty. If the offender discharged a gun, seven points are added; if the crime resulted in bodily injury two points are added; if it was serious bodily injury another two. If the amount stolen was $10,000 or less no points are added; if the sum was between $10,000 and $50,000 one point is added; if between $50,000 and $250,000 it is an additional two points; if between $250,000 and $800,000 then three are added, and so on up to a maximum of seven points. So if the burglar fired a gun, caused serious bodily injury, and stole $300,000 then an offence score of thirty-four is applied. If this is a first offence then the sentence must fall between 151 and 188 months. If the offender has a long criminal record, e.g. four on the scale of one to six, then the sentence must fall between 210 and 262 months.

The only factors a judge may use to reduce the guideline sentence are the offender’s “acceptance of responsibility”, i.e. a guilty plea, which can earn a modest reduction, and if the offender is willing to provide “substantial assistance” to the government, i.e. to turn state’s evidence and inform on others, which can bring a major reduction.

The guidelines are complex, run to over 200 pages, and are being constantly amended. One distinctive feature of them, not replicated in any other American sentencing commission, is that sentences are to be imposed on the basis of what the Commission calls “actual offence behaviour” or the “real offence”. In reality this is presumed behaviour rather than proved or admitted behaviour. Judges are routinely required to sentence offenders for “relevant conduct”, which was not admitted in a guilty plea or proved at trial, and may even be conduct of which the offender was acquitted. The conduct in question need only be established by a preponderance of evidence rather than proved beyond reasonable doubt. The rationale for this approach was to undermine prosecutorial attempts to manipulate the guidelines through plea bargaining. To get around this, prosecutors will engage in “hidden plea bargaining” which they do by defining the “base offence” downward to bring about a reduction in penalty, and covering their tracks so that the “real offence” cannot be determined. Thus, in return for a guilty plea, the prosecutor will agree to charge the defendant with robbery without the use of a weapon even though one was carried. Some judicial frustration has been expressed over the guidelines as judges come to see themselves as mere rubber stamps without any meaningful judicial role (Tonry 1993(a), pp133–5; Rothman 1994, p37).

Numerical guidelines and mandatory sentencing have been widely employed in the United States. It is important to note that this has occurred in the context of jurisdictions which do not have a strong history of appellate review, such as to a greater or lesser degree exists in New Zealand, Australia, and Great Britain. In addition, some states have elected judges, who may sentence with an eye to electoral considerations. These factors may in part account for the relatively heavy-handed approach of some states in adopting mandatory sentencing or numerical guidelines as the means to pursue sentencing consistency and the desired sentencing policies.

A third type of numerical guidelines involves assigning a starting sentence to an offence category, or else assigning several starting sentences, which are related to key distinctions as to the degree of seriousness of the offence. The starting sentences can be varied according to the presence of aggravating or mitigating factors from a specified list. This form of guidance has been provided by certain judgments of the English Court of Appeal and to a lesser extent by New Zealand’s Court of Appeal in drug and sexual offending cases. There is, however, no reason why this style of guidance involving starting points could not emanate from a sentencing commission or be written into legislation. It leaves considerable room for judicial discretion as no precise value is put on the detailed factors related to the crime.

Any guidance system which establishes numerical ranges for presumptive sentences needs to take account of the tension between wide ranges which make it easier to accommodate the individual circumstances of cases but leave more room for disparities, and narrow ranges which reduce disparity but make sentencing a blunter instrument and less able to respond to individual differences in offenders and offences. Significant to this issue is the strictness of the policy on departures up and down from the presumptive sentences. Some systems set limits (sometimes expressed in percentage terms) as to how much sentences can go outside the ranges. Often the aggravating and mitigating factors that can be taken into account (or those that cannot) are listed. Greater consistency with respect to departures may be achieved if judges are required to give reasons when departing from the presumptive sentence, or to specify how the case meets the departure criteria. These reasons could then be subject to appellate review.

11.5. Presumptive Dispositions

Presumptive dispositions allow for greater judicial discretion than numerical guidelines, but may be slightly more restrictive than general policies and principles, depending on how specifically they are framed. To some extent this sort of sentencing guidance has been incorporated in New Zealand’s Criminal Justice Act 1985 via those sections which direct that violent offenders be imprisoned except in “special circumstances”, and that most property offenders should receive a non-custodial sentence, except in “special circumstances”. The special circumstances provisions of these sections, nevertheless, allow for wide discretion as to the application of these presumptions. Violent offenders have received non-custodial sentences because of “special circumstances” relating to the absence of a previous record, good rehabilitative prospects, or the fact that the offence resulted from a significant degree of provocation. The presumption against imprisonment of property offenders has been rebutted by “special circumstances” such as the prevalence of the offence in a certain locality, the fact that the offence involved large sums of money or a breach of trust, or the presence of a number of previous convictions for a property offence.

The English Criminal Justice Act 1991 provides that a custodial sentence shall only be imposed if either the offence or offences are so serious that only such a sentence can be justified, or else a custodial sentence is needed to protect the public from serious harm from the offender. When it comes to non-custodial sentencing, the fine is the presumed sentence for most offences. A more severe community-based sentence must be justified by the court, must match the seriousness of the offence, and must be the one most suited to the offender.

In 1987 the Canadian Sentencing Commission proposed a system of guidance that would assign offences into one of four categories of presumed sentence: custody; community sanction; qualified custody (custody unless it was a minor instance of the offence and the offender had no relevant criminal record); and qualified community sanction (community sanction unless it was a serious instance of the offence and the offender had a relevant criminal record). Guidelines would be developed for custodial sanctions, the presumptive non-custodial sentence would be a fine in most cases, and non-custodial sanctions would be regarded as sentences in their own right, rather than as alternatives to imprisonment.

Presumptive dispositions are likely to give greater guidance if accompanied by legislative statements as to sentencing principles and policies, as outlined in the next section.

11.6. Use of Principles and Policies

General sentencing principles (which may be laid down by the executive, the legislature, a commission, or through judicial rule making at the appellate level) allow individual judges to shape the sentencing tariff within an explicit framework of principles. The essence of this approach is to provide judges with general instructions which list the factors that determine the seriousness of the offence and the considerations that will determine the eventual sentence.

This style of guidance was adopted in the Swedish Criminal Code of 1988. Proportionality was selected as the leading rationale for sentencing. The seriousness of the offence (the harm or potential harm involved in the crime) and the culpability of the offender (the degree of his or her personal fault) determine the “penal value” of the offence, which together with the offender’s criminal record (in some circumstances) establish whether a custodial or non-custodial sanction is appropriate. Where the crime of conviction “has considerable penal value” the offender, as a general rule, can expect to be imprisoned irrespective of the absence of any criminal record. Lesser offenders are to be given non-custodial sanctions even if they are recidivists, and offenders convicted of crimes in the middle range of seriousness are to be imprisoned if they have accumulated a significant criminal record. A fine is the first sanction of choice for crimes of low penal value and for crimes of intermediate penal value, except where the defendant’s prior criminal record is extensive. The legislation lists aggravating and mitigating factors relating to the harm and culpability of the conduct, and sets out the circumstances in which other aims such as deterrence and rehabilitation may be considered in sentencing. For instance, it authorises deterrent penalties for drink driving in excess of what the conduct’s penal value would indicate. Specific guidance on sentence ranges is not provided, but has been left up to the judiciary to develop as they apply the principles (von Hirsch 1987; 1989; Jareborg 1995).

In the Australian state of Victoria, the Sentencing Act 1991 codifies the principles which are to govern sentencing. The legislation states that sentences may only be imposed to either punish, deter, rehabilitate the offender, express denunciation of the offence, protect the community from the offender, or a combination of any of the preceding purposes (s5(1)). When sentencing the judiciary are obliged to have regard to:

A hierarchy of sentencing options is set out, with a direction that the least severe disposition which will achieve the purpose of the sentence is to be used in each case (s5(3)–(7)). The Act lists considerations for judges to have regard to when determining the character of an offender (s6).

Drafting sentencing principles for legislation is exacting work, since the principles and the criteria for their application must be stated with some precision. This requires time and expertise and the routine methods used for drafting legislation may not be appropriate. In the case of the Swedish sentencing legislation, the work was done over a period of several years by a study commission, which was assisted by a working group of penologists familiar with the sentencing literature and with sentencing reforms in other jurisdictions.

11.7. Sentencing Information Systems

These are the least restrictive means of providing sentencing guidance and may be viewed by some as falling short of guidance in strict terms. Some overseas jurisdictions (Canada, New South Wales, and some parts of the United States) have introduced computer-based information systems which provide statistical information on sentencing decisions. The systems vary, but the common aim is to convey empirical data on previous sentencing decisions on an offence basis. The systems do not have the force of legal authority and are not designed to impose constraints on judicial discretion. The intention is that access to the information will assist sentencers to learn of any common approaches in terms of how different sentences and different degrees of sentences apply to like offences. This in turn is meant to achieve greater consistency in sentencing.

The New South Wales Sentencing Information System (SIS) has been available state-wide since 1993. It operates two data bases:

A third data base of local sentencing facilities and programmes available to the courts for the referral of offenders is being developed.

The statistical data base comprises data collected by the New South Wales Judicial Commission on sentences passed by the courts in the previous two years (although where the number of cases is small, older data are retained on the system). It indicates an overall distribution of sentences per offence (selected according to one or more case characteristics), and more detailed information about the use of a particular sentence (e.g. amounts of fines, terms of imprisonment) (Spears 1994, pp1107–9)

If a sentencing information system is to produce consistency in sentencing, it must have the confidence of the judiciary (and so be fully utilised for day-to-day sentencing decisions), and have information which is appropriately classified and of sufficient quantity. It is critical to the operation of the system that offence categories match up with their critical mitigating and aggravating factors and key offender characteristics. This in turn highlights the fact that there has to be some prior agreement with the judiciary as to what are the key variables to be used in sentencing, which may or may not be done in the context of a formal guideline system. The New South Wales SIS operates in a non-guideline jurisdiction which relies on appellate review. The existence of guidelines will in most cases limit the number of factors that need to be included in any accompanying sentencing information system. In any event, the capacity to subdivide data meaningfully is totally dependent on there being enough cases within each subcategory so that those with unusual features do not distort the statistical picture.

A variant on sentencing information data bases is judicial seminars and information exchange on matters such as new legislative provisions, significant appellate decisions, and practice in the sentencing of common offences.

11.7.1. A sentencing information system in New Zealand

In 1990 the Courts Consultative Committee (made up of a number of judges and representatives from the Law Commission, New Zealand Law Society, Department of Justice, and the community) set up a Sentencing Statistics Sub-committee which produced a report proposing the establishment of a sentencing information system based on the Canadian and New South Wales models. There would be a computerised data retrieval system which would provide empirical information in graphical display form on the range and type of sentences imposed for offence subcategories. This was the sentencing range subsystem and was to be based on the Wanganui Computer data base. The system would also have a similar case subsystem, based on sentencing statistics return sheets. This would enable judges to make case comparisons according to mitigating and aggravating characteristics. The system would also provide material on the legislative constraints and guiding principles applicable to sentencing, and have a principal appellate decision subsystem for accessing Court of Appeal decisions relevant to whatever case was under consideration. Consideration of this report by the then Department of Justice concluded that there were several technical and financial difficulties which precluded its implementation at the time.

The Department for Courts has since produced a sentencing digest in electronic form (on CD–ROM and disk) as a resource for judges and their support staff. (A hard copy is also available.) The digest (available since October 1994) consists of summaries of selected sentencing judgments assembled according to Acts and sections of Acts. The summaries offer information on sentencing levels with respect to particular offences and include the maximum penalty for each offence, and references to any relevant principal appellate judgments. The full text of Full Court High Court judgments and guideline judgments of the Court of Appeal are also included. It is updated quarterly.

11.8. Summary

  1. Means by which sentencing guidance, other than that provided by appellate judgments, can be provided to the courts include:

(a) mandatory or mandatory minimum sentences

(b) numerical sentencing guidelines

(c) presumptive dispositions

(d) codification of principles and of criteria as to their application

(e) sentencing information systems.

All except the last of these impose some degree of constraint on judicial discretion.

  1. Any guidance systems which result in greater sentencing certainty through the reduction of judicial discretion are likely to increase prosecution and parole authorities’ influence on sentence length in the absence of accompanying guidance in these areas.
  2. Presumptive systems will ensure consistency and individual fairness to a greater or lesser degree depending on the policy on departures from the presumptions and any requirement to give (appealable) reasons for departures.
  3. Appellate review is necessary to complement all systems except mandatory sentences, as a means to further elucidate principles, policies, and presumptions, and as a means of providing further guidance to the lower courts. For instance, appellate review could develop, and define the criteria for, reasons for departure from presumptions.
  4. Guidance systems must be accompanied by provisions for monitoring and amendment, and information systems for judges to ensure that the intended results are achieved and to help facilitate this.
  5. Issues for consideration include:

(a) Whether greater sentencing guidance than that currently provided is necessary?

(b) If so, what form is most appropriate to the New Zealand situation?

(c) If there is to be greater sentencing guidance, should there also be greater parole and prosecution guidance?

(d) How would any guidance system be implemented and monitored?

12. Allocation of Responsibility for Sentencing Policy and Guidance

12.1. Introduction

This chapter discusses options as to where sentencing guidance should be formulated. Discussion centres on the three arms of government: the executive (cabinet ministers and their advisers); the legislature or parliament; and the judiciary. Options raised are:

Various combinations of these options are also possible.

12.2. The Respective Roles of Parliament and the Judiciary

Over the years parliament has passed legislation setting down maximum penalties for new offences and periodically altered existing maximum penalties. Current legislation also includes general restrictions on sentencing, but falls short of providing a framework of sentencing principles or a methodology for how to select a sentence from within the available range (see Chapter Two). This has by default given the judiciary considerable discretionary powers which over time have become more circumscribed by the decisions of judges themselves.

In view of the fact that many sentencing decisions involve placing restrictions to a greater or lesser degree on a person’s liberty, and because sentencing represents the state’s response to crime on behalf of the community, sentencing must be considered to be of considerable public interest. This public interest is likely to be of the view that it is imperative, for the integrity of the system, that individual fairness be exercised. Public confidence in the courts’ fair dispensation of justice can probably only truly be obtained if the public can come to comprehend more fully the factors which judges take into account in sentencing and how those factors affect the amount or type of sentence.

One argument (closely related to the above assertion) for greater executive/legislative involvement in sentencing is based on the ‘rule of law’ principle. The line of argument is that considerable discretion at the sentencing stage of the criminal justice system, which arises if the legislature provides little guidance other than maximum penalties and there is little in the way of rules or guidelines from the appellate courts, does not accord with the requirement that the law be administered according to clearly articulated standards which are in the public arena and laid down in advance.

Essentially there is a balancing act to be performed. On the one hand, it is probably not desirable for judges to be left the task of formulating the wider policy issues related to sentencing. These would include consideration of matters such as prison and prosecution policies which inevitably must constitute part of any coherent sentencing strategy, or at least be taken into account in strategy formulation. On the other hand, justice and fairness would be compromised if parliament and the executive were to make provisions that totally remove judicial discretion, the exercise of which helps ensure that individual sentencing decisions take account of the particular circumstances of the case.

The maintenance of judicial independence is often invoked as a reason for parliament leaving considerable sentencing discretion in the hands of the judiciary. The principle of judicial impartiality in administering justice to individuals means that it is unacceptable for any pressures to be placed upon a court to decide a specific case one way or the other, and that the act of sentencing is undertaken only by judges. This does not, however, give the judiciary a constitutional entitlement to a particular sphere of policy. In this case it is sentencing policy, which it can be argued is not qualitatively different from other policy areas, such as taxation and social welfare entitlements.

As discussed in 2.4.1, judicial discretion was increased by the legislature when it created broad-band offences, each with a statutory maximum to cover the worst possible case of the offence. Parliament has kept the power to set down and periodically alter those maximum penalties and also the power to set mandatory and minimum penalties (as evidenced by the mandatory life sentence for murder and the minimum disqualification periods for various driving offences). This latter power is not considered unconstitutional in our jurisprudence and in fact the issue of specific penalties has survived a constitutional challenge in the Australian High Court in Palling v Corfield ((1970) [1970] HCA 53; 123 CLR 52). The basic constitutional position appears to be that the limits of judicial discretion are no more and no less than what parliament determines they shall be.

This still leaves the issue of the respective roles of the judiciary, parliament, and the executive in the area of sentencing policy and guidance. If there is an acknowledged need for greater structuring in the sentencing process, can it most successfully be accomplished through judge-led initiatives (such as guideline judgments, judicial education, and sentencing information systems); through the state playing a more interventionist role, either through mandatory sentences or statutory guidelines that considerably reduce the leeway of judges’ sentencing decisions; through ministerial sentencing directions; or through the establishment of a sentencing commission or council? A commission could be given the task of formulating presumptive guidelines or some other role in the determination of sentencing policy and/or in influencing sentencing decisions.

12.3. Sentencing Guidance from Parliament

Chapter Two discussed the limitations of the sentencing guidance provided by the Criminal Justice Act 1985. In particular, there are no principles in that legislation that provide judges with a systematic and structured method for assessing the relative seriousness of offences, indicating what term of imprisonment within the range available is appropriate, or when a community-based or monetary sentence should be imposed, and what that sentence should be. One way of obtaining more explicit sentencing guidance is for parliament to introduce clearer sentencing guidelines in legislation.

If the legislature is to take up the challenge of sentencing reform and assume greater responsibility for providing sentencing guidance there still remain important questions of detail as to the respective roles of parliament and the judiciary and the possible role of a parliamentary-appointed sentencing committee or commission (which also involves the issue of the composition of any such body). First of all, should sentencing guidance be embodied in legislation to any greater extent than a statement of general principles? Should the determination of what that guidance comprises be a matter of ordinary government policy (to be determined by the executive and its advisers), or are superior results likely to be achieved if the task is delegated to a special committee or commission or to the judiciary to formulate recommendations for change?

Sentencing guidance directly created by the executive and voted on by parliament has the major drawback of being subject to the distorting effects of political pressures. These may lead to contradictions within a policy (trying to reduce the use of imprisonment on the one hand and locking away violent offenders for longer periods on the other), or at least to a compromised policy.

On the issue of legislation, to incorporate a detailed sentencing framework in a statute has the advantage of the policy being seen to emanate from the democratic process. One disadvantage is that legislation has a tendency to be subjected to piecemeal amendments so that from time to time sentencing provisions for only certain offences will be changed without due consideration of the overall conceptual framework. Additionally, the legislative process can be a slow one when it comes to making significant modifications, which become necessary in the light of new information or experience. The latter point could, however, be a favourable one for this option, because the process of passing legislation means that, in most cases, the sentencing changes would be open to public scrutiny and submissions from a wide range of perspectives at the select committee stage.

12.4. Ministerial Directions

An alternative to comprehensive sentencing guidance in legislation is giving the Minister of Justice power under legislation to issue sentencing directions to the judiciary. A similar ministerial power to give directions has existed since 1985 in relation to parole for inmates serving indeterminate prison sentences (Criminal Justice Act 1985, s98), although to date it has never been used.[10]

Such directions would presumably be from the executive alone without having to be voted on by parliament. In this sense they would be less democratically based than sentencing guidance contained in legislation. This power, if used, would probably mean that the resultant sentencing guidelines would be more susceptible to political influences and issues of the day than would be the case if guidance had to be incorporated in legislation or developed by a sentencing commission. Not only would the guidance change in response to short-term issues of public concern (for instance, particular types of cases being highlighted by the media) but also with changes of government and/or minister. Changes could be effected with relative ease compared with having to amend legislation. The power could become an instrument by which ministers seek to achieve political gains by reacting to high profile issues, coming close to undue ministerial interference with the independence of judicial decision-making. This possibility could not be entirely eliminated even if the legislative power prohibited directions which could influence individual sentences of any particular offender or offenders (as in the existing parole provisions). Such fluctuations would not put sentencing policy on a consistent and stable footing. Even if the directions had to be gazetted and tabled in parliament, or monitored by a parliamentary committee with a reporting role, public knowledge of, and accessibility to, them would not be to the same extent as is the case with legislation.

12.5. Development of Sentencing Policy and Guidance by the Judiciary

A traditional source of sentencing guidance is the body of case law in respect of the ranges of sentences imposed for particular offences, including the more specific guidance provided by courts hearing appeals of sentence. The principal advantage of this guidance is that since it is developed by the judiciary themselves, it is perhaps more readily accepted and adhered to than guidelines from other sources. This guidance can also be modified or altered in the face of changing situations more promptly than is the case with legislation. Judicially-developed guidance is, of course, more insulated from political pressures than legislative or executive guidance.

Despite the development of a more structured form of guidance from the appellate courts to lower courts there are a number of features of the appellate system that mean that the overall impact of judicial self-regulation in controlling sentencing disparities is circumscribed. These are outlined below.

  1. In general, appellate decisions are limited because they are dependent upon the particular cases which the prosecution or defence choose to appeal. These will be cases when a sentence is considered to be manifestly inadequate or excessive or wrong in principle. As such appeal courts are likely to be dealing with the more serious or atypical cases and accordingly, while this presents them with some ability to develop guidelines in relation to sentencing for serious offences and to the use of imprisonment, it will severely limit their ability to give guidance on everyday property offences and the use of community-based sanctions or monetary penalties.
  2. Guideline judgments in particular tend to occur only for a small number of cases where the offence is serious and the courts see a ‘tariff’ sentence as appropriate and possible to prescribe, and/or the case has unusual features. The majority of day-to-day sentencing decisions that need to be made for common offences or for typical instances of offences are unlikely to be covered by this method of guidance, and there are almost no guideline judgments on the application of other than custodial sentences. For some categories of offences such as arson and manslaughter the courts have repeatedly said that the circumstances vary so widely that it is impossible to provide general guidelines.
  3. An examination of appellate judgments does not reveal a consistent rationale or consistent principles that can be applied to sentencing in the same way as legislative guidelines. Appeal courts have generally restricted their consideration to the particular case in front of them, although sometimes they have discussed sentencing for particular classes of offences. Where general principles or supporting rationale are discussed their applicability in subsequent cases will not always be clear cut. That a few guideline judgments have resulted in greater consistency with regard to some categories of offences is perhaps due to the overall primacy given in these cases to the importance of deterrence or denunciation as a principle of sentencing. Appellate judgments in general do not, however, emphasise this consideration. Nor do they usually provide (unless they are guideline judgments) effective direction as to the manner in which aggravating and mitigating factors are to be balanced or reconciled in order to arrive at an overall assessment of an appropriate penalty. This is understandable given the pressure of other court business and judges’ limited time to peruse and consider sentencing research and theory.
  4. Since appellate judgments generally examine decisions on a case by case basis and the judgments rarely go beyond the points raised by a particular case to establish a sentencing structure for particular classes of offences, it is a slow process to build up a significant collection of guidelines. This is made more so by the fact that the preparation of guideline judgments is time-consuming and places pressure on the resources of the courts. The inclination of judges to adopt this approach is thus constrained.
  5. There is some doubt as to the status of appellate court decisions on the appropriate level of sentences. Unless they involve general points of principle they will not have the same binding force as rulings on points of statutory interpretation. This is because any rulings on particular sentences are always limited to the particular facts of the case in question.
  6. Judicial decisions cannot take into account considerations in other areas of the criminal justice system that may be relevant to sentencing policy, e.g. corrections and prosecutions policies.

The report of the Canadian Sentencing Commission argued that appeal courts are not adequately structured to make policy on sentencing since “They are structured to respond to individual cases that are brought before them rather than to create a comprehensive integrated policy for all criminal offences” (Canadian Sentencing Commission 1987, pxxiv).

The appeal process can most probably ensure a measure of consistency in the sentences given for some serious offences, but this is not the same as having an overall policy framework on sentencing.

12.6. Sentencing Commissions

The establishment of sentencing commissions or councils needs to be viewed as a separate issue from the type of sentencing guidance that may eventually emerge from them. To argue, for example, that the particular sentencing guidelines produced by the United States Federal Sentencing Commission may be fundamentally flawed is not the same as arguing that a commission per se such as the United States one is an unwise option. There are in general two types of sentencing commissions:

The advantage of the former, as a permanent body, is that it provides for continuous monitoring, evaluation, and updating of the guidelines which it has produced. These are long-term and ongoing requirements not best left to ad hoc bodies or government departments, which have competing priorities and may lack the necessary degree of autonomy from the various agencies in the criminal justice system, and certainly lack autonomy from political, i.e. executive, direction. In addition, government agencies are not representative of the various professional and community interests involved in sentencing, although they may seek to remedy this through consultation processes. The major disadvantage is the cost of administering such a commission.

Most commissions in the United States have formulated ‘prescriptive’ guidelines intended to change sentencing practices, rather than ‘descriptive’ guidelines which set out past sentencing practices with a view to having them applied with greater consistency.

Whether they have been set up by governments to come up with reform proposals or to take responsibility for formulating authoritative sentencing guidelines, sentencing commissions in overseas jurisdictions have generally comprised a mixture of judges, criminal justice professionals from across the sector (particularly the correctional service), members of the legal profession on both the prosecution and defence sides, some academics, community representatives, and departmental advisers.

Advocates for the establishment of sentencing guidelines of one sort or another by appointed sentencing commissions have generally been motivated by the desire to remove sentencing from politics and to insulate the criminal justice system from popular pressures. It was argued that sentencing commissions, like administrative bodies with delegated rule making authority in other areas (e.g. the Securities and Exchange Commission and the Food and Drug Administration in the United States), would bring expertise and rational decision-making to bear on complex partisan-based and agenda-driven disputes over sentencing, and adopt comprehensive, long-term approaches to the subject. Liberal reformers anticipated that sentencing disparities would be reduced (particularly in respect of racial and gender differences), prison sentences would be imposed more sparingly, and alternatives to prison used more frequently, once decisions on sentencing were removed from judges with wide discretionary powers, from overly cautious parole boards, and from legislators with short-term concerns about pleasing constituents,

Other potential advantages were seen to be:

A disadvantage for some was the lack of democratic process in the formulation and altering of sentencing guidelines by commissions.

12.6.1. The United States experience of sentencing commissions

There is no doubt that in the United States sentencing commissions, through their guidelines, have altered sentencing practices and patterns in their jurisdictions. (Where there is considerable disagreement is over the merits of those guidelines.) It is clear that in a large number of cases judges’ sentences conform with the guidelines, with departure rates being low. The important qualification is that this adherence is in terms of offence-of-conviction rather than actual offence. In the case of the Federal Sentencing Guidelines, for example, research has disclosed that plea bargaining distorts guideline application in at least 25 to 35 per cent of cases (Tonry 1993(b), p150). A further cautionary note is that conformity to guideline ranges does not always mean there will be sentencing consistency even in terms of offence-of-conviction because some commissions have made their guideline ranges quite wide for each offence (e.g. three or four years).

The history of the Washington State Sentencing Commission shows that commissions will not necessarily insulate sentencing from politics. In that particular case, the commission and the state legislature between them ratcheted up penalties for drug and sexual abuse offences in response to pressures from prosecutors and public outrage over some high media profile offences in 1989. Similarly with the Minnesota Sentencing Commission in 1989 when it raised the prison terms for violent crimes and drug dealing in its numerical sentencing guidelines. It may be that lessening the discretion of judges and parole boards through the establishment of a commission with delegated authority to amend its own guidelines will make sentencing more a political issue, with sensational crimes more likely to lead to long-term changes in sentences. While a highly publicised case may result in a judge giving a harsher than usual sentence in that particular case, a commission’s response may result in an increased penalty for all future crimes in a particular category.

No legislative delegation of rule-making authority to administrative agencies can forever or completely insulate policy from partisan political influence, even if this was desirable. Powerful and determined political forces can override or subvert an agency’s policies either directly, by means of legislation, or indirectly through informal political pressure or the appointment of new commissioners who are in sympathy with the particular political group’s point of view. Politicians appoint the members of commissions, control their budgets and powers, and have the ultimate authority to accept or reject the end products. It has been said that at most a commission may constitute a modest fire break, allowing the less strong initiatives at the political level to be resisted, if this is the inclination of the commission (von Hirsch in Clarkson and Morgan 1995, p166).

In conclusion, the record of sentencing commissions in the United States is neither consistently good nor bad. Some twenty commissions have been established at one time or another since 1978. Some decided not to develop guidelines or did develop them and could not get them ratified by the state legislature, resulting in the commissions being disestablished. Some commissions’ guidelines have not been respected and so had little influence, while in other cases the reverse is true. There are limits to the extent that they can be empirically-based policy-making bodies and resist political pressures. They have had limited success in developing guidelines for non-custodial sanctions, or in controlling the plea/charge bargaining process. It has been difficult to assess their true impact on sentencing disparities because of a critical shortage of outside empirical evaluations (see Alschuler 1991; Tonry 1993(b), pp152–63).

It also must be remembered that translating sentencing rationales into practices that can guide the day-to-day realities of the criminal sentencing system is far from straightforward. The fourteen member New York State Committee on Sentencing Guidelines, which was riven with internal dissent, took two years to produce a report which had hopelessly compromised recommendations and dissenting opinions which drew attention to the doubtful wisdom of some of the decisions (see Griset 1994). New York legislators never acted on the committee’s recommendations, which had met with widespread opposition upon their release. This highlights a further potential difficulty with sentencing commissions: that of ending up with a group of people of differing ideological persuasions who will simply stake out their separate positions on every aspect of a guideline system.

Nevertheless, as a sentencing reform strategy the guideline-setting commission is one of the more widespread, and has been regarded as deserving of trial or at least examination in other jurisdictions (e.g. Australian Law Reform Commission 1987; Canadian Sentencing Commission 1987). The main reason for this is undoubtedly because their one undisputed achievement has been to change sentencing practices.

12.7. Summary

  1. In sentencing there is a balance to be struck between the roles of the executive, parliament, and the judiciary. This balance must include consideration of wider policy issues such as the extent to which imprisonment should be used and the desirability of greater public understanding of the sentencing process, as well as the need to be able to take into account factors which affect the seriousness of individual offences.
  2. Although parliament on its own can set mandatory penalties for all offences this is unlikely to deliver fair and equitable sentences responsive to the individual circumstances of cases.
  3. If there is to be more explicit guidance than the provision of maximum penalties, then the questions become what should be the respective roles of parliament, the executive and the judiciary, and should there be a separate specialised body with a mandate to develop guidelines.
  4. Judicially-developed guidance is likely to lead to consistency in some areas, particularly with more serious offences, as well as being accepted by the judiciary and insulated from political pressures. It is unlikely, however, to provide guidance on the sentencing of the broad range of everyday offences, and it is not particularly suited to the provision of consistent overall sentencing policies and principles.
  5. Sentencing commissions can take the form of temporary bodies like commissions of inquiry with a mandate to make recommendations on the determination of sentencing policy and principles, or ongoing bodies with a mandate to establish guidelines and continue to monitor, evaluate, and make modifications when necessary to those guidelines.
  6. Sentencing commissions are not always free from political pressures and their task is a difficult one which may be made more difficult by differing ideologies of commission members.
  7. It has not been conclusively determined whether sentencing commissions in the United States have brought about greater genuine offence-based sentencing consistency than was the case with more unfettered judicial discretion.
  8. Some issues for consideration when reviewing where the responsibility for sentencing policy and guidance should rest are:

(a) Whether the development of guidance is the responsibility of the executive, subject to the scrutiny and voting of parliament (i.e. guidance in legislation)?

(b) Whether the executive should have legislative authority to issue sentencing directions to the judiciary?

(c) Whether guidance additional to any provided in legislation and/or by the executive should be the responsibility of the judiciary, particularly through sentencing appeal decisions?

(d) Whether responsibility for sentencing guidance should be delegated through legislation to a representative sentencing commission, with a greater or lesser degree of direction as to the policies and principles to be pursued?

Appendix

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[1] Three other influences, to a lesser extent, regulate sentencing and promote consistency: pre-sentence reports prepared by community corrections officers; counsels’ submissions on sentence; and general discourse and interaction among members of the judiciary.

[2] Between 1993 and 1994 the average prison sentence imposed increased substantially again (by 17 per cent), but this no doubt reflects the courts’ response to the increase in the maximum sentence from 14 to 20 years in September 1993.

[3] 1994 and 1995 saw a sudden downward trend as the percentages dropped to 33 per cent and 30 per cent respectively (Spier, 1996, p65)

[4] Statistics as at 1 October 1996 from the Department of Corrections.

[5] The England and Wales scheme required the courts to assess the seriousness of the offence in terms of a number of units and then multiply that by a dollar figure, which was the offender’s weekly disposable income divided by three, so that offenders were being penalised by being deprived of a set proportion of their income for a particular number of weeks (determined by the nature of the offence).

[6] In 1993/94 the total cost for the management of prisons in New Zealand (both sentenced and remand facilities) was $206.02 million. This can be itemised as follows:

(i) operating costs 33.26m (16.1 per cent)

(ii) personnel costs 116.06m (56.3 per cent)

(iii) capital charges 39.85m (19.3 per cent)

(iv) depreciation 15.77m (7.7 per cent)

(v) leave provision 1.08m (0.5 per cent)


[7] The England and Wales Criminal Justice Act 1991 addressed this by allowing the court to aggregate only two of the offences of any case in determining whether only a custodial sentence could be justified. This two offence rule was abolished in 1993 and the courts may now combine any number of offences to justify imprisonment.

[8] This is the definition used in New Zealand’s own Victims of Offences Act 1987. Section 2 defines a victim as:

a person who, through or by means of a criminal offence (whether or not any person is convicted of that offence), suffers physical or emotional harm, or loss of or damage to property; and, where an offence results in death, the term includes the members of the immediate family of the deceased.


[9] This has the potential disadvantage that mandating certain sentences in legislation but allowing these to be subsequently changed, possibly according to administrative needs, can be seen as undermining the intention of the legislation and thus the credibility of the administration. Discretion is transferred from the judge to another authority and there is potential for discrimination in the exercise of this discretion.

[10] Section 98(1) requires the Parole Board, when exercising its functions and powers, to have regard to “the policy of the Government and ... to comply with any directions relating to that policy given to it in writing signed by the Minister”. Section 98(2) further stipulates that the Minister cannot give a direction to the Board in respect of “any particular offender or offenders”.

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