5 Sentencing practice

5.1 Introduction
5.2 Scenarios
5.3 Does the amount of information make a difference to the sentence chosen?
5.4 Who changes their sentence based on more information?
5.5 Comparison with overseas research
5.6 Summary

5.1 Introduction

One of the most commonly asked questions in overseas surveys of public opinion on sentencing is: ‘In your view are sentences too harsh, about right or not harsh enough?’ Results of these polls consistently show the public as desiring harsher penalties (Roberts 1992). However, one of the difficulties with questions such as this one is that the public tends to perceive that sentences are more lenient than is actually the case. In addition, when people are asked general questions, they will answer with the worst case in mind (Hough & Roberts 1998). Research that asked respondents the type of criminal they had in mind when giving their opinion of the severity of sentences showed that the majority were thinking of violent or repeat offenders (e.g. Brillon 1988; Doob & Roberts 1983). Most polls also present very little information to their respondents, and the results of such studies do not do justice to the public’s views (Roberts 1992). Several studies have varied the amount of information provided about the offender and the offence and the results consistently show that the more information respondents are given, the less punitive they become (Doob & Roberts, 1983 Doble & Klein 1989). Roberts suggests that if members of the public were exposed to the amount and type of information available to the sentencing judges, their satisfaction with sentencing decisions would increase.

In this section, we examine the survey respondents’ attitudes towards sentencing. Respondents were given a showcard with a list of different sentences (see Appendix 2), which included a short explanation of each option. The showcard contained five prison options of varying lengths, from imprisonment of less than 1 year to life imprisonment. The list also provided a range of community-based options,[7] as well as monetary penalties[8] and other options.[9] Respondents were asked to take some time to familiarise themselves with the sentences listed on the showcard. Firstly, we asked respondents to sentence a person convicted of a crime described in a short one-line statement. They were asked what they thought would be the most appropriate sentence to be served by a person convicted of crimes described in the following ways:

• a man assaulting his female partner;
• burglary with a weapon;
• drunk driving;
• importing heroin with a street value of $100,000;
• fraud of $50,000;
• possession of 10 grams of marijuana.

Next, we presented them with six short scenarios based on the six crimes. Each scenario contained information about the age, gender, occupation and criminal history of the offender. Ideally, we would have liked to vary the details of the information provided to see whether, for example, the age of the offender made a difference to respondents’ choice of sentence. However, such an experimental design would have required a much larger sample and was outside the scope of the current research.

While the scenarios contain some information about the nature of the offence and characteristics of the victim, they are still fairly limited in their descriptions. It was beyond the scope of this exercise to ensure that the respondent had all the information available to them about the case (as, for example, is available to a judge). More information about an offender’s past and current circumstances may influence a respondent’s choice of sentence. Certainly, the results from overseas research suggests that more information available about the circumstances surrounding the crime can make a difference to the sentence chosen (Doob & Roberts 1983; Doble & Klein 1989).

This chapter is broken down into two parts. Firstly, the respondents’ choices of the most appropriate sentence are given for each scenario. Secondly, the sentences chosen in each of the scenarios are compared with those given for the one-line descriptions.

5.2 Scenarios

Respondents were read six scenarios about people who had committed crimes. After they had been read each scenario, respondents were asked to indicate, from Showcard 2, what they thought was the most appropriate sentence. They were able to state up to three sentencing options, but multiple responses were not encouraged.

Where respondents gave more than one sentencing option, their responses were analysed to determine which was the most serious sentence they had chosen. The sentences listed on Showcard 2 (see Appendix 2) are ordered according to the hierarchy of sentence seriousness used by the Ministry of Justice (Spier 1999).

Sentence options were also grouped into four categories: prison (life imprisonment, imprisonment of more than 10 years, imprisonment of between 5 and 10 years, imprisonment of between 1 and 5 years, and imprisonment of less than 1 year); community-based sentences (periodic detention, community service, community programme, supervision); monetary penalties (reparation, fine); and other sentences (disqualified from driving, suspended prison sentence, warning, and no penalty).

Firstly, the findings are presented at the four category level with only the most serious sentence option being included for each respondent. Secondly, the findings are presented at a more detailed level with all sentence options volunteered by respondents being included.

Theft through fraudulent use

John, aged 45, used a client’s money which should have been held in trust, as a $50,000 deposit to buy an apartment for himself. At the time of the offence, John was a partner in a city legal firm. He has no previous convictions.

Figure 5.1 shows that the majority (64%) thought a prison sentence was the most suitable sentence for ‘John’, convicted of theft through fraudulent use. One in five (21%) mentioned a monetary penalty as the most serious sentence.

Figure 5.1 Most serious sentence for ‘John’ – convicted of theft through fraudulent use [10]

Table 5.1 presents more detailed information on respondents’ choice of sentence. Slightly more than two-thirds of the sample (69%) gave only one sentence option for ‘John’, a quarter (26%) mentioned two and a further 5% gave three options. All the sentence options are included in the table.

About half of those who said ‘John’ should go to prison suggested that this should be for a term of between 1 and 5 years. Forty-four percent of respondents thought that ‘John’ should be sentenced to pay reparation, and 5% thought a fine should be part of his sentence. Seventeen percent mentioned reparation as their only sentence option for ‘John’.

Reparation or a fine were commonly mentioned in combination with another sentence. The majority of respondents who gave more than one sentence option thought that reparation should be combined with a term of imprisonment, but a large proportion also mentioned a combination of reparation and a community-based sentence, in particular, community service or periodic detention.

Table 5.1 Sentences selected for ‘John’ – convicted of theft through fraudulent use

Note: Percentages add up to more than 100 because people may have mentioned more than one sentence.

Respondents who thought ‘John’ should be sentenced to a term of imprisonment were most likely to:

• have no formal educational qualifications.

Male assaults female

Peter, aged 32, threw a vase at his partner after a night out drinking with friends. His partner required several stitches to her head and she was off work for 3 days. Peter, a bank clerk, has prior convictions for this type of assault.

Figure 5.2 shows that nearly two-thirds of respondents (62%) thought that ‘Peter’, convicted of male assaults female, should be sentenced to a term of imprisonment, and a third (34%) mentioned a community-based sentence as the most serious sentence.

Table 5.2 shows that the majority of respondents thought that the most appropriate term of imprisonment for ‘Peter’ was between 1 and 5 years (30%) or less than 1 year (24%). About half mentioned that ‘Peter’ should be given a community-based sentence, most frequently supervision, as one of their options.

Figure 5.2 Most serious sentence for ‘Peter’ – convicted of male assaults female

Table 5.2 Sentences selected for ‘Peter’ – convicted of male assaults female

Note: Percentages add up to more than 100 because people may have mentioned more than one sentence.

Three-quarters gave only one sentence option for ‘Peter’, a fifth mentioned a combination of two sentences and a further 5% gave three. Over half the respondents who gave a combination of two or more sentences thought this should be prison and a community-based sentence, primarily supervision.[11] However, about a fifth also mentioned a combination of community-based sentences.[12] About a quarter mentioned a monetary penalty in combination with either a community-based sentence or a prison sentence.

Respondents who thought ‘Peter’ should be sentenced to a term of imprisonment were most likely to:

• be younger;
• be of lower socio-economic level;
• have been a victim of crime;
• have reported a crime to the police.

Respondents who thought ‘Peter’ should be sentenced to a non-custodial sentence were most likely to:

• be older;
• be of higher socio-economic level (legislators/administrators/managers or professionals);
• have not been a victim of crime;
• have not reported a crime to the police.

Driving with excess breath alcohol

Joe, aged 18 and a labourer, was charged with driving with an excess breath alcohol level over twice the legal limit, after a police car chase. Joe has prior traffic convictions.

About half the sample (53%) said that ‘Joe’, convicted of drunk driving, should be sentenced to a term of imprisonment (see Figure 5.3). About a quarter considered ‘Joe’ should be sentenced to a community-based sentence as the most serious sentence and one in five mentioned an ‘other’ sentence. This was most commonly disqualification from driving.

Figure 5.3 Most serious sentence for ‘Joe’ – convicted of driving with excess breath alcohol

The most frequent term of imprisonment for ‘Joe’ was either between 1 and 5 years or less than 1 year (see Table 5.3). A third mentioned a community-based sentence as one of their sentence options, primarily periodic detention or supervision. Two out of five respondents thought ‘Joe’ should be disqualified from driving, although this was most often in combination with another sentence. Only 14% mentioned a driving disqualification as their only sentence for ‘Joe’. About one in 10 (9%) mentioned a suspended sentence as one of their sentencing options.

Table 5.3 Sentences selected for ‘Joe’ – convicted of driving with excess breath alcohol

Note: Percentages add up to more than 100 because people may have mentioned more than one sentence.

Two-thirds of respondents mentioned only one sentence option for ‘Joe’, and 34% mentioned a combination of two or more sentences (22% gave two and a further 12% gave three). About two-thirds of the respondents who gave a combination of two or more sentences thought this should be either prison or a community-based sentence, together with a disqualification from driving. About a fifth also mentioned a combination of a prison sentence and a community-based sentence.

Respondents who sentenced ‘Joe’ to a term of imprisonment were most likely to:

• be male;
• be younger
• be Māori;
• be less educated;
• be at a lower socio-economic level;
• have reported a crime to the police.

Respondents who sentenced ‘Joe’ to an ‘other’ sentence were most likely to:

• be women;
• be older;
• be Pacific Peoples;
• not be in paid employment;
• not have reported a crime to the police.

Smuggling heroin

Mary, a 28 year old single parent, was caught by customs officers trying to smuggle heroin into New Zealand for resale. The heroin was estimated to have a street value of $100,000. She has no previous criminal convictions.

Figure 5.4 shows that the majority (81%) chose to sentence ‘Mary’ to a term of imprisonment.

Figure 5.4 Most serious sentence for ‘Mary’ – convicted of smuggling heroin

Table 5.4 shows that a third of the respondents thought the term of imprisonment for ‘Mary’ should be between 1 and 5 years, and a quarter thought the term should be between 5 and 10 years. A quarter mentioned a community-based sentence as one of their sentence options, although only 9% mentioned it as their only option.

Four out of five respondents (83%) mentioned only one sentence for ‘Mary’, who was convicted of smuggling heroin. Seventeen percent mentioned a combination of sentences (13% mentioned only two and 4% mentioned three). Most frequently, a prison sentence was combined with a community-based sentence. However, a number also mentioned a combination of either a community-based sentence or prison with a monetary penalty.

Table 5.4 Sentences selected for ‘Mary’ – convicted of smuggling heroin

Note: Percentages add up to more than 100 because people may have mentioned more than one sentence.

Respondents who thought ‘Mary’ should be sentenced to a term of imprisonment were most likely to:

• be male;
• be Māori or NZ European/Pakeha;
• not be university qualified.

Respondents who thought ‘Mary’ should be sentenced to a community-based sentence were most likely to:

• be female;
• be university qualified.

Aggravated burglary

Paul, aged 22 and unemployed, broke into an elderly couple’s house. When the elderly man got up to investigate the noise, Paul threatened him with a gun and then fled. He has previous convictions for breaking and entering.

The vast majority (91%) of the respondents thought ‘Paul’, convicted of aggravated burglary, should be sentenced to a term in prison. Only 8% mentioned a community-based sentence as the most serious sentence.

Figure 5.5 Most serious sentence for ‘Paul’ – convicted of aggravated burglary

Table 5.5 shows that two-thirds thought this term of imprisonment should be between 1 and 10 years. A fifth thought that ‘Paul’ should receive a community-based sentence, but only 6% mentioned a community-based sentence as their only sentence option for ‘Paul’.

Table 5.5 Sentences selected for ‘Paul’ – convicted of aggravated burglary

Note: Percentages add up to more than 100 because people may have mentioned more than one sentence.

The majority of respondents (84%) mentioned only one sentence for ‘Paul’. Sixteen percent mentioned a combination of sentences. Where a combination of sentences was mentioned, this was most frequently a term of imprisonment combined with a community-based sentence, primarily supervision or a community programme. Other commonly mentioned combinations included prison and a monetary penalty.

Respondents who sentenced ‘Paul’ to a term of imprisonment were more likely to:[13]

• be men;
• be younger or middle aged;
• be employed;
• have a higher personal income;
• have reported a crime to the police;
• have been convicted of a crime.

Possession of cannabis

Jane, a 19 year old student, was arrested for smoking marijuana after the police were called to a noisy party. Jane was found to have 10 grams of marijuana in her possession. She has no previous convictions.

Figure 5.6 shows that about half (47%) of the respondents thought a community-based sentence was the most appropriate option for ‘Jane’, convicted of possession of marijuana, and a third mentioned an ‘other’ sentence, most commonly a warning.

Figure 5.6 Most serious sentence for ‘Jane’ – convicted of possession of cannabis

In the few cases where a term of imprisonment was considered as an option for ‘Jane’, this was most likely to be one of less than a year (see Table 5.6). Supervision, followed by community service, were the community-based sentences most often mentioned. Thirteen percent considered that a fine was the most appropriate sentence for ‘Jane’.

Only 11% of respondents mentioned more than one sentence option for ‘Jane’. This was most likely to be a combination of community-based sentences or of a community-based sentence and an ‘other’ penalty. Where an ‘other’ penalty was chosen in combination with a community-based sentence, this was likely to be a suspended term of imprisonment or a warning.

Table 5.6 Sentences selected for ‘Jane’ – convicted of possession of cannabis

Note: Percentages add up to more than 100 because people may have mentioned more than one sentence.

Respondents who sentenced ‘Jane’ to a community-based sentence were most likely to:

• be aged 60 or over;
• not be university educated;
• have a lower personal income;
• have not been victims of crime;
• have not reported a crime to the police;
• have not been convicted of a crime.

Respondents who sentenced ‘Jane’ to an ‘other’ sentence were most likely to:

• be younger or middle aged;
• be NZ European/Pakeha;
• be university qualified;
• be employed full time;
• have a higher personal income;
• have been victims of crime;
• have reported a crime to the police;
• have been convicted of a crime.

We undertook further analysis to examine the proportion of respondents choosing custodial or non-custodial sentences across the six scenarios. Seven percent selected a prison sentence for all six scenarios, and 2% selected a non-custodial sentence for all six. In general, however, respondents chose a mixture of custodial and non-custodial sentences across the scenarios.

Thirty percent of respondents tended towards imposing prison sentences (they selected a prison sentence in at least five out of the six scenarios). These respondents were more likely to:

• be Māori;
• be Pacific Peoples;
• be less well educated.

Twenty-two percent of respondents tended towards imposing non-custodial sentences (they selected a community-based, monetary, or ‘other’ sentence in at least four of the six scenarios). These respondents were more likely to:

• be women;
• be older;
• be unemployed;
• not have reported a crime to the police.

5.3 Does the amount of information make a difference to the sentence chosen?

Survey respondents were initially asked to sentence a person on the basis of a one-line description of six crimes, for example: ‘a man assaults his female partner’. We then provided them with a fuller description of the offence and offender in the form of a scenario and again asked the respondents to chose the most appropriate sentence for each crime.

We wanted to assess whether the amount of information provided about the crime and the offender made a difference to the sentence(s) respondents chose. We therefore compared the sentences chosen for each of the scenarios with those chosen for each of the equivalent one-line descriptions. The analysis was based on a hierarchy of sentence seriousness used by the Ministry of Justice (Spier 1999). If the sentence chosen for the scenario was ranked lower than that for the one-line description (e.g. reparation for the scenario, periodic detention for the one-line description) the sentence chosen for this scenario was considered to be less serious. Similarly, if the sentence chosen for the scenario was ranked higher than that for the one-line description, the sentence chosen for the scenario was categorised as more serious.

Figure 5.7 contains the results of this analysis. It shows the proportion of respondents choosing a less serious sentence, the same sentence or a more serious sentence based on the fuller information given in the scenario.

The two scenarios where respondents were most likely to give a less serious sentence involved women as the offenders – ‘Mary’, convicted of smuggling heroin (63%), and ‘Jane’, convicted of possession of cannabis (40%). Only 6% gave ‘Mary’ a more serious sentence, and 17% gave ‘Jane’ a more serious sentence. In three-quarters of the cases where ‘Mary’ was given a less serious sentence in the scenario, this was a shorter term of imprisonment. In the case of ‘Jane’, about two-thirds of the respondents who chose a less serious sentence chose either a community-based sentence instead of a prison term, or an ‘other’ penalty (most often a warning) instead of a community-based sentence. Respondents who chose a less serious sentence for both ‘Jane’ and ‘Mary’ were more likely to be women, aged over 60 and not university qualified.

Figure 5.7 Seriousness of the sentence chosen for the scenario compared with for the one-line description

In the cases of ‘John’, ‘Peter’ and ‘Paul’, a similar proportion gave a less serious sentence for the scenario than for the one-line description as gave a more serious sentence. A third gave ‘John’ convicted of theft through fraudulent use, a less serious sentence based on more information, and 38% gave him the same sentence as they did based on the one-line description. Additional information in the scenario included that he was a lawyer, with no previous convictions. Two out of five respondents who chose a less serious sentence for ‘John’ based on more information gave him a shorter term of imprisonment, and a quarter gave him a monetary penalty instead of a prison term. These respondents were most likely to be Pacific Peoples or Māori and not have been a victim of crime or have reported a crime to the police.

Where a less serious sentence was chosen in the scenario of ‘Peter’ convicted of assaulting his partner, as compared with the one-line description, in most cases respondents chose either a shorter term of imprisonment (44%) or a community-based sentence instead of a prison term (37%). The scenario contained information about the injuries to his partner and that ‘Peter’ had previous convictions for this type of assault. Respondents who chose a less serious sentence for ‘Peter’ based on more information were more likely to be aged 60 or over, whereas those who chose a more serious sentence based on more information were more likely to be middle aged.

Twenty-nine percent chose a less serious sentence when sentencing ‘Paul’ based on the scenario, while 30% chose a more serious sentence. Most commonly, however, respondents gave the same sentence they had given for the one-line description of ‘burglary with a weapon’. Additional information in the scenario included that he had pulled a gun on an elderly couple. Where ‘Paul’ was given a less serious sentence than in the one line description, respondents most commonly chose a shorter term of imprisonment. Interestingly, older respondents were more likely to impose a less serious sentence based on the scenario, which involved elderly victims.

Respondents were most likely to give a more serious sentence based on additional information in the case of ‘Joe’ convicted of driving with excess breath alcohol (43%). ‘Joe’ was twice the legal limit, and his crime involved a car chase. Half of these respondents thought ‘Joe’ should either receive a prison term or a community-based sentence instead of being disqualified from driving. A quarter chose a less severe sentence when provided with more information than in the one-line description ‘drunk driving’. In a third of these cases, the sentence chosen was a shorter term of imprisonment and, in a fifth, a community-based sentence instead of a prison term. About a quarter thought ‘Joe’ should be disqualified from driving rather than be sentenced to a term in prison or a community-based sentence. Respondents who gave ‘Joe’ a less serious sentence in the scenario version were more likely to be women, Pacific Peoples, have a lower personal income and not have been convicted of a crime.

5.4 Who changes their sentence based on more information?

Further analysis was undertaken to determine the characteristics of respondents who were consistently more likely to give a less serious sentence, the same sentence or a more serious sentence in the scenario version compared with the one-line description. Respondents who gave a less serious sentence across four or more scenarios were considered to consistently give a less serious sentence. About one in five respondents (18%) fell into this category. These respondents were significantly more likely to:

• be women;
• be aged 60 or over;
• not be university qualified;
• not be in the paid labour force.[14]

A similar proportion of respondents (18%) fell into the category of respondents who consistently gave the same sentence both in the one-line description and in the fuller scenario. These respondents were significantly more likely to:

• be younger.

Only 6% of respondents gave a more serious sentence in four or more of the scenarios. These respondents did not differ from other respondents based on demographic characteristics.

5.5 Comparison with overseas research

Some overseas research has shown that when asked about specific crimes, the public is not harsher than the courts or at least not as harsh as the polls about general crime would suggest (Roberts & Stalans 1997). Roberts and Doob (1989), for example, found no significant difference overall between the courts and the public in incarceration rates, although, for some crimes, public sentencing preferences were harsher than the courts, while for others the courts were harsher.

Other overseas research has shown a tendency for respondents with a higher educational and socio-economic level to be less punitive (Grabosky et al. 1987; Hough et al. 1988). Hough et al. (1988) also found that women and younger respondents tend to be less punitive. Similarly, we found that respondents with higher educational qualifications and at a higher socio-economic level tended to sentence the offenders described in the scenarios to non-custodial sentences. We also found that Māori and Pacific Peoples respondents were more likely to consistently impose prison sentences, regardless of the type of crime. Respondents aged 60 or over were more likely to sentence someone convicted of aggravated burglary to prison and were also more likely to sentence someone convicted of possession of cannabis to prison. However, we found that overall, older respondents were more likely to impose non-custodial sentences.

Research shows that people become more punitive when the offender being sentenced has previous convictions (Mattinson & Mirlees-Black 2000). To assess the extent to which people think the type of offence, offender age and criminal history should influence sentences, respondents to the British Crime survey were asked to consider the most appropriate way to deal with a 10-year-old or 15-year-old first-time offender or persistent offender. In all scenarios (shoplifting, burglary and serious violent attack), respondents thought the severity of punishment should be more influenced by persistence of offending than by the age of the offender.

Victims appear to be no more punitive than non-victims. Hough and Roberts (1998) and Mattinson and Mirlees-Black (2000) found that victims, including victims of burglary, were just as likely to sentence someone convicted of burglary to imprisonment than non-victims. In this survey, only in the case of male assaults female did victims appear to be more punitive than non-victims. In no other scenario did victims prefer a sentence of imprisonment over non-victims.

5.6 Summary

• With the exception of ‘Jane’ who was convicted of possession of cannabis, in every scenario half or more of respondents thought the person should be sentenced to imprisonment. The rate of choice of imprisonment was highest for ‘Paul’ convicted of aggravated burglary (91%), and ‘Mary’ convicted of smuggling heroin (80%). About two-thirds thought ‘John’, convicted of theft through fraudulent use, and ‘Peter’, convicted of male assaults female, should go to prison, and half sentenced ‘Joe’, convicted of driving with excess breath alcohol, to a term of imprisonment.
• Forty-four percent of respondents thought that ‘John’, convicted of theft through fraudulent use, should be sentenced to pay reparation, and 5% thought a fine should be part of the sentence. Seventeen percent mentioned reparation as their only sentence option for ‘John’. In no other scenario did a monetary penalty feature as strongly.
• About half of the respondents sentenced ‘Peter’ convicted of male assaults female, and ‘Jane’, convicted of possession of cannabis, to a community-based sentence, most frequently supervision, as one of their options.
• Respondents were most likely to give a less serious sentence based on more information in the cases of ‘Mary’, convicted of smuggling heroin and ‘Jane’ convicted of possession of cannabis. Respondents were most likely to give a more serious sentence based on additional information in the case of ‘Joe’, convicted of driving with excess breath alcohol.

Footnotes

7  Periodic detention, community service, community programme and supervision.

8  Reparation and fine.

9  Disqualified from driving, suspended prison sentence, warning (and no other penalty given) and no penalty at all given.

10  The sentences are ordered according to the hierarchy of sentence seriousness used by the Ministry of Justice (Spier 1999). This order has been imposed for this analysis and 'seriousness' does not represent respondents, choice of the most serious sentence.

11  The Criminal Justice Amendment Act 1993 allows the courts to impose a community-based sentence cumulative on a sentence of imprisonment of 12 months or less, provided that the duration of the community-based sentence does not exceed 12 months.

12  Only the community-based sentences of supervision and periodic detention can be combined.

13  Due to small numbers, non-custodial sentences (community-based, monetary, other) were combined for this analysis.

14  Options: unemployed or voluntary worker or not in the paid labor force.