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Paper 8: Sentencing Guidelines and Parole Eligibility

Proposal

1 This paper seeks the Cabinet Policy Committee's consideration of the attached advisory report from the Law Commission, which proposes to:

establish an independent sentencing council, for purposes that include drafting sentencing guidelines; and
reform parole to better align the time served in prison with the court-imposed sentence.

Background

2 In February 2006, I invited the Law Commission to contribute to the Effective Interventions project. The Commission was asked to consider:

the advantages of providing greater guidance to judges on the exercise of their sentencing discretion, and appropriate mechanisms for achieving this (including whether New Zealand would benefit from the establishment of a body such as the UK Sentencing Guidelines Council);
the extent to which such guidance can serve as an instrument to enable prison population issues to be managed more effectively; and
whether the parole eligibility component of prison sentences requires adjustment to ensure a closer relationship between the nominal sentence imposed and the actual time served.

3 The Commission's report complements other papers in this suite, by proposing a mechanism for the sustainable management of penal resources; and the retention, rather than the abolition, of parole because there is evidence that parole reduces the risk of re-offending.

The Commission's advisory report

4 The Law Commission has provided an advisory report, which is attached for the Cabinet Policy Committee's consideration. The contents of the report are briefly summarised below.

The nature of the problem

5 The Commission has identified numerous longstanding problems with New Zealand's sentencing and parole arrangements. These are summarised in the Executive Summary of the advisory report, at paragraphs four to eight. In short, they are problems that arise from the extent of judicial sentencing discretion, and parole eligibility at one-third of the nominal sentence.

Sentencing reforms

6 The Commission recommends the establishment of a sentencing council in New Zealand, by reference to similar initiatives overseas. It proposes that, while the council would serve multiple purposes, its primary purpose would be to draft sentencing and parole guidelines. The Commission refers to evidence from the United States, which has a long experience of such bodies, to suggest that they are a proven mechanism for the management of penal resources (see paragraphs 150 to 157 of the Commission's report).

7 The council, according to the Commission, has the potential to solve a number of other problems, such as sentencing inconsistency in New Zealand (see paragraph 25 and the Appendix to the advisory report). The council would be an independent statutory body, with a mix of judicial and non-judicial members. However, the Commission recommends several avenues for governmental and parliamentary involvement. Ultimately Parliament would have the power, by way of a proposed negative resolution procedure, to determine whether each set of draft guidelines proceeds (see paragraphs 80 to 83).

Parole reforms

8 The Commission recommends the retention of parole, for the purpose of reducing the risk of re-offending. However, it proposes substantial reform of the present parole arrangements. A key aspect of the proposed reforms is that prisoners serving determinate sentences (which do not include life imprisonment or preventive detention) of more than 12 months would be required to serve at least two-thirds of the sentence.

9 The Commission considers that the proposals will advance the interests of "truth in sentencing". It predicts that the outcome of this reform will be that prisoners, on average, will serve over 80 percent of their sentence, as opposed to the current 62 percent.

10 Assuming that a neutral prison population effect was desired, it would be necessary to simultaneously implement the proposed sentencing reforms. This is because, according to the Commission, there is no other current mechanism or reform option that can provide the same degree of assurance of the necessary change in judicial sentencing practice (i.e. a reduction in the length of nominal sentences by an average of 25 percent). These matters, and the associated risks, are discussed in the Commission's report (see, particularly, paragraphs 28 to 43 and 134 to 149).

Financial implications

11 s.9(2)(f)(iv) s.9(2)(f)(iv)

Legislative implications

12 If the Law Commission's report is adopted, it will require legislative change. The report proposes that legislation be introduced in November 2006, and passed in July 2007.

Recommendations

13 I recommend that the Cabinet Policy Committee consider the attached advisory report, and:

EITHER

(a) agree to adopt the Law Commission's proposals;

(b) direct the Law Commission to undertake further work; and

(d) decline to consider the proposals further.

If the Law Commission's proposals are agreed to:

2 s.9(2)(f)(iv)

3 s.9(2)(f)(iv)

s.9(2)(f)(iv)

4 s.9(2)(f)(iv)

s.9(2)(f)(iv)

5 s.9(2)(f)(iv)

Hon Mark Burton
Minister Responsible for the Law Commission