2.The Current Sentencing Structure
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:
- the seriousness of the offence
- the culpability (or blameworthiness) of the offender
- the impact on the victim
- the circumstances surrounding the offence which may be unique to the case.
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. (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.)
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:
- that violent offenders should be imprisoned except in special circumstances [violent offenders are those convicted of an offence punishable by two or more years of imprisonment and who either (i) used serious violence or caused serious danger to the safety of another person, or (ii) used violence or caused danger and have a previous conviction within the previous two years for a similar offence punishable by two or more years imprisonment] (s5)
- that people convicted of property offences punishable by seven years imprisonment or less should not be imprisoned, except in special circumstances (s6)
- that the courts shall have regard to the desirability of keeping offenders in the community, and that any term of imprisonment should be as short as is "consonant with promoting the safety of the community" (s7)
- that prison sentences should not be imposed on a person under the age of 16, except for a purely indictable offence (s8)
- there are limitations on combined sentences of imprisonment and a community-based sentence (s8A)
- that custodial sentences may be imposed where the offender is unlikely to comply with other sentences (s9). (This applies even in relation to s6 offences above)
- that reparation shall be considered in all cases and where there is loss of, or damage to, property or emotional harm, reparation must be imposed unless it is "clearly inappropriate" to do so (s11).
Other sentencing directions in the Act are that:
- imprisonment cannot be imposed where a person has not been legally represented [except where they have refused representation] (s10)
- in imposing a sentence a court may take into account an offer to make amends [either financial or by way of service] (s12)
- a court when sentencing may not take into account an offender being affected by alcohol or drugs as a mitigating factor in cases involving violence (s12A)
- there are certain provisions relating to how sentences may be combined or not (s13)
- offenders may call witnesses as to family and cultural background to assist the judge in determining sentence (s16)
- time spent in custody awaiting trial or sentence must not be taken into account when sentencing (s81). (This time is administratively deducted from the sentence imposed.)
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). (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.) 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.
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. (1994 and 1995 saw a sudden downward trend as the percentages dropped to 33 per cent and 30 per cent respectively (Spier, 1996, p65)) 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:
- violent offenders should be imprisoned except in special circumstances (s5)
- people convicted of property offences punishable by seven years imprisonment or less should not be imprisoned, except in special circumstances (s6)
- the courts shall have regard to desirability of keeping offenders in the community (s7).
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).
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.
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.