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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:

  • crime prevention and maintenance of order
  • detection and enforcement (including investigation)
  • prosecution
  • adjudication
  • sentencing/disposition
  • administration of sentences/dispositions.

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:

  • perceived severity of penalties (most usually this is the charge that imprisonment is applied more often than it needs to be)
  • perceived leniency of penalties (particularly in the divergence between statutory maximum penalties and actual sentences)
  • the issue of consistency (i.e. that there is sentencing disparity and arbitrariness in the system due to the highly subjective nature of a process which depends more on the individual responses of judges to particular combinations of facts than the application of rules or guidelines to individual cases).

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.