The Sentencing Act 2002
Victim Impact Statements
The Facts upon which the offender is sentenced
The Sentencing Hearing
Pronouncement of the Sentence
The Role of the Court of Appeal
Imposing sentences (the punishment given to an offender) is one of the most exacting tasks undertaken by judges. Sentences must reflect a number of considerations, some of which may be in conflict. The most important considerations are:
- the seriousness of the offending;
- the interests of the victim;
- consistency with sentences imposed for similar offending;
- the personal circumstances of the offender.
The sentencing of offenders convicted of imprisonable offences is generally postponed following conviction, to enable the sentencing judge to have full information to balance these considerations.
As a rule, the judge directs the preparation of a pre-sentence report about the offender's personal circumstances. The police are required by law to obtain an impact statement from the victim. Lawyers representing the offender and the prosecution have the opportunity to prepare submissions relating to sentences imposed previously in comparable cases and to the sentence considered appropriate.top
Until Parliament passed this Act the purposes and principles of sentencing were largely derived from case law. The Sentencing Act defines the purposes of sentencing, but does not require that any particular purpose must be given greater weight than others. The purposes include holding the offender accountable, promoting in the offender a sense of responsibility, providing for the interests of the victim (including by ordering reparation for harm done), denunciation of the offender's conduct, deterrence of both the offender and other persons, protection of the community and assisting in the offender's rehabilitation and reintegration back into the community.
The Act then identifies principles which judges must take into account. These include the gravity of the offending, the culpability (blameworthiness) of the offender, the maximum penalty prescribed for the offence, the desirability of consistency of sentences for similar offending, the personal circumstances of the offender including personal characteristics which may make a sentence disproportionately severe upon that particular person, and whether any restorative justice agreements or terms have been reached.
Restorative justice is an area in which New Zealand has been progressive. Typically restorative justice involves face-to-face contact between the offender and the victim. This process may result in agreement as to how the offender may make amends for his offence, whether by apology, compensation, performance of work or services or any other response which is acceptable to the victim. When, subsequently, the offender is sentenced, the sentencing judge must take account of the restorative justice outcomes when deciding upon the appropriate sentence of the court.top
Judges routinely order a pre-sentence report where an offender pleads guilty to, or is convicted of an offence punishable by imprisonment. Pre-sentence reports are prepared by probation officers, who also supervise offenders living in the community after receiving community-based sentences or after their release from prison.
Pre-sentence reports contain information about:
- The offender's personal background and family (whanau) circumstances;
- The lifestyle and other factors which are considered to have contributed to them committing the offence;
- Recommendations relating to courses of training or treatment which might assist the rehabilitation of the offender;
- An assessment of the risk of further offending;
- A recommendation as to the appropriate penalty, including proposed terms and conditions for the offender's supervision, training and treatment within the community whether immediately or upon release from prison.
A range of programmes designed to assist offenders is available. Straight Thinking is a programme aimed at promoting life skills needed to avoid further offending and STOP is a programme designed to address the causes of violence.
Judges may also ask for psychiatric and psychological reports, which are commonly obtained for offenders who have mental health and/or drug or alcohol addiction problems.top
In previous times victims of crimes did not have defined statutory rights and there were no formal mechanisms for information concerning the impact of the offending upon the victim to be conveyed to the sentencing judge. The Victims Rights Act 2002 addressed these issues. Victims support volunteers are available at courthouses. Victims must be treated with courtesy and compassion, are entitled to information concerning the court process and also enjoy rights of privacy.
In relation to the sentencing of offenders there is a statutory requirement for a victim impact statement to be prepared and provided to the judge. This statement details any physical injuries, property loss and other effects (particularly psychological impacts), suffered by the victim. The statement is either read by the judge before the sentencing, or, with leave of the judge, may be read in open court by the victim and in the presence of the offender before sentence is imposed.top
The facts of the case have a major bearing on the sentence imposed. Where an offender pleads not guilty and the case is the subject of a defended hearing, the judge who presided at the trial will impose a sentence based on an assessment of the facts established by the evidence.
Where an offender pleads guilty, a statement of facts is prepared by the prosecution for the purposes of the sentencing. There may be disagreement concerning the contents of the statement, in which case the judge can direct that evidence is called from relevant witnesses. Based on that evidence the judge will make factual findings which resolve any matters of dispute.top
Offenders are sentenced in open court. Members of the public and media representatives may attend. The judge will read in advance any reports prepared for sentencing purposes including written submissions filed by lawyers representing the Crown (the prosecution) and the offender.
In addition, oral submissions are made at the hearing. This provides an opportunity for counsel to emphasise points of particular importance to their respective cases. Counsel appearing for the Crown may draw attention to particular facts of the case, aggravating features (that the offender was in a position of trust in relation to the victim, that the victim was particularly vulnerable etc), whether the offence is prevalent either nationally or locally, and what form of sentence and sentencing range is considered appropriate in all the circumstances of the case.
Counsel appearing for the offender may emphasise mitigating features (the youth of the offender, extenuating circumstances which existed at the time of the offence etc) and also endeavour to persuade the judge as to the form of penalty and, where appropriate, its length. Counsel may also need to address ancillary issues, including whether leave to apply for release to home detention should be granted (in cases where a sentence of two years imprisonment or less is imposed).top
This follows immediately after the submissions of counsel. The judge orally explains the reasons for, and sentence, to be imposed.
A judge's sentencing remarks need to explain the sentencing decision to various different parties. The offender, of course, is entitled to be told why the particular sentence is being imposed. But in addition the victim, the Crown and the media, are further parties who have a legitimate interest in the sentencing outcome. The judge will also be conscious that the sentence may become the subject-matter of an appeal, in which event the sentencing decision will be scrutinised by an appellate court to ensure that the sentence imposed was arrived at by an application of the correct principles.
A major consideration in arriving at a particular sentence is the need for consistency. Although the circumstances of different cases and different offenders are never the same, it is nonetheless a requirement of sentencing that the sentences imposed by different judges are generally consistent. Because different cases are never identical, individual sentences are required to fall within what is often termed the "available range" of sentence for that offence. There is, therefore, scope for the judge to take account of factors personal to the offender, provided the sentence remains within the permitted range.top
While the Court of Appeal does not sentence defendants, it has a role in correcting sentences which it considers to be wrong and giving sentencing guideline judgments.
The Court of Appeal may correct sentences if, for example, it considers the sentence is outside the available range for the particular offence, or is otherwise wrong (for instance that a principle in the Sentencing Act has not been applied).
It is best placed to give sentencing guideline judgments because of the number of sentencing decisions that Court of Appeal judges review from all parts of the country.
A guideline judgment typically contains a review of the sentences imposed for a particular offence in past cases. The court draws on the past cases to establish a sentencing range, which is designed to promote consistency in future sentences for the same offence. The guideline judgment may also identify and assess common aggravating features of the offence, to guide judges as to where individual cases fall within the available range.
From time to time, particularly where the maximum penalty for an offence has been increased by Parliament or where an offence has become prevalent, the court may reconsider and issue a new guideline judgment to alter the sentencing range for an offence.
There are some offences for which the Court of Appeal has considered it inappropriate to prescribe a sentencing range. The offence of manslaughter is perhaps the best example - the maximum penalty for manslaughter is life imprisonment. The worst cases of manslaughter are near to murder and can attract severe sentences of imprisonment. But a conviction for manslaughter may also result where someone causes the death of another person by a single blow in circumstances where loss of life was not intended, and a sentence less than imprisonment may be appropriate. Given the wide range in possible sentences for manslaughter, it is not possible to define a guideline sentencing range. Judges take guidance instead from earlier cases involving manslaughter of a generally similar kind.top