New Zealand Law Commission
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138 NEW ZEALAND JUDGES CURRENTLY HAVE NO DISCRETION in sen-
tencing a defendant who has pleaded or been found guilty of murder. The penalty for murder is mandatory: a sentence of life imprisonment with a non-parole period of at least 10 years. Until 1961, the mandatory penalty for murder was death. The partial defence of provocation mitigated the harshness of the mandatory death sentence by reducing murder to manslaughter. Provocation and infanticide now play this role with regard to the mandatory life sentence.
139 Several law reform bodies have recommended replacing the mandatory sentence for murder with a sentencing discretion. In New Zealand, the Criminal Law Reform Committee recommended abolishing both the mandatory life sentence for murder and the partial defences (with the exception
of infanticide). These recommendations were embodied in the Crimes Bill 1989, which was never enacted. In its 1991 report on that Bill, the Crimes Consultative Committee supported the Criminal Law Reform Committee’s recommendations. It considered that the principal arguments in favour of a sentencing discretion for murder (and the abolition of partial defences) were:
• it recognised the varying degrees of culpability that exist among those who commit homicide and who are outside the defence of provocation;
• a sentencing discretion may well encourage guilty pleas where the offender does not contest liability for the killing; this would reduce the length and expense of such trials;
• a sentencing discretion should reduce the temptation for a jury to bring in a lesser verdict when the appropriate verdict, on a proper consideration of the law, would be murder;
• the culpability attaching to murder is not so inherently different by comparison with other grave crimes of violence as to require a mandatory penalty. It is often a matter of chance whether a person faces a charge of attempted murder or serious wounding rather than murder.
140 On the other hand, those who support the mandatory life sentence for murder argue that it recognises the gravity of the crime. It also is said to give better protection to the public because assessment of dangerousness is made by a parole board before release and there is a life-long power of recall.
141 Discretionary sentencing does not appear to result in substantially shorter time actually spent in prison as compared with mandatory life sentencing.
142 The introduction of a sentencing discretion for murder would not necessarily require the abolition of the partial defences, although it does remove the main reason for having them. Both the House of Lords Select Committee on Murder and Life Imprisonment and the Criminal Law Revision Committee recommended that diminished responsibility and provocation be retained whether or not the sentence for murder was to become discretionary. The four Australian states that have introduced a sentencing discretion for murder have also retained various partial defences.
143 The main argument in favour of retaining the partial defences is that they permit the community, as represented by the jury, to make judgments about an individual’s level of culpability for intentional homicide. This is said to enhance the public’s confidence in the criminal justice system and increase community acceptance of sentences imposed. Mitigating facts will be more thoroughly explored if they are elements of a partial defence than if they were relevant to sentencing only. It is also argued that it is harsh to label the offender a murderer when there are mitigating circumstances.
144 Arguments for abolishing partial defences are:
• that they are not necessary in the absence of a mandatory penalty for murder;
• the defences themselves have been the subject of criticism (as discussed above);
• the labelling argument is overstated and the time and expense involved in running complicated defences simply to avoid the stigma of a murder conviction is unwarranted;
• the current procedure for exploring provocation and other mitigating factors at sentencing is adequate.
Question 9: Should the current mandatory life sentence for murder be replaced with a sentencing discretion?
Question 10: If a sentencing discretion for murder is introduced, should the partial defences be abolished?
Question 11: If the answer to question 10 is no, which partial defences should be retained or introduced?
145 Currently, judges can increase the non-parole period to more than the 10 year minimum when sentencing for murder. One way of giving judges a sentencing discretion without abolishing the mandatory life sentence would be to allow them to also set a non-parole period of less than 10 years. This would have the advantage of allowing the effective period of incarceration to be reduced in a deserving case, yet retaining the life-long power of recall as a backup.
Question 12: If the mandatory life sentence is retained, should judges be given a discretion to set non-parole periods of less than 10 years?
146 This Bill was introduced in 1996. It defines as murder in the first degree, culpable homicide that is intended and is committed in a particularly sadistic, heinous, malicious or inhuman manner. Murder in the second degree is defined in the same terms as the existing definitions of murder. Murder in the third degree is culpable homicide committed under provocation or the influence of alcohol or drugs. Manslaughter is defined as culpable homicide not amounting to murder in the first, second, or third degree.
147 The primary aim of this categorisation is to distinguish among different levels of culpability and to allow for “bands” of sentencing. First degree murder would attract a mandatory penalty of imprisonment for the rest of the offender’s natural life. Second degree murder would attract a mandatory penalty of life imprisonment and be subject to the existing parole provisions. Third degree murder would attract a maximum penalty of life imprisonment. Manslaughter would attract a maximum penalty of 10 years imprisonment.
148 The Bill would permit the jury, in a homicide case, to make recommendations about the length of sentence and the terms and conditions of an offender’s detention and parole. The judge would be required to have regard to the jury’s recommendations.
149 The Bill does not address any of the issues discussed above relating to battered defendants. In the main, it merely replicates current legal concepts of culpability. The Bill could, in fact, worsen the position of some battered defendants, as there are certain features of homicides committed by battered defendants, such as premeditation and the use of particular modes of killing, which may be interpreted as coming within the definition of first degree murder.
150 We mention this Bill for completeness, but do not favour its implementation for the reasons given in our 1996 submissions:
... the Bill in its current form would create new problems in an already complex area of the law. The proposed redefinition of murder and manslaughter complicates the law by introducing difficult distinctions. This complication, coupled with a wide power for juries to make statements related to sentencing, increases the danger of inconsistent and compromised verdicts. It also significantly changes the role of juries and makes their task more difficult. Significant problems in the existing law of homicide are not addressed by the Bill, and in some cases are compounded. Reform of the law of homicide needs greater consideration than is achieved by the Bill.
The amendments to the Bill proposed in the interim report of the Justice and Law Reform Committee do not alleviate these concerns.
Ministry of Justice sentencing project
151 The Ministry of Justice is currently undertaking a comprehensive review of all aspects of sentencing and there will be a Sentencing Reform Bill before the House of Representatives in 2001. We understand that penalties for murder will be addressed in the context of that review.