Sentencing for homicide
The approach of the Sentencing Act 2002
11.3A key policy issue in sentencing is how best to facilitate decisions that respond to the particular facts of the offending and the offender’s personal circumstances while also promoting consistency with cases of a similar nature. Fairness requires that both be achieved so far as possible. However, different people within the community and different judges will have different views on how serious a particular offence is and the degree to which an offender’s personal circumstances reduce their culpability or otherwise justify a more lenient sentence. These questions are inevitably contentious.
11.4Under the traditional common law model, the judiciary has considerable discretion to determine the appropriate sentence in an individual case, subject to the applicable maximum penalty. An alternative approach is to provide more guidance to judges either through statute or sentencing guidelines. At the most directive end of the scale, mandatory sentences might be imposed through legislation – often reflecting a community view about the gravity of the offence.
11.5In New Zealand, the approach to sentencing sits somewhere in the middle of the scale. The Sentencing Act sets out principles that must be taken into account when deciding a sentence, including the gravity of offending, the desirability of consistency and the need to impose the least restrictive outcome appropriate in the circumstances. It also sets out a list of purposes the judge may consider, such as holding the offender to account, deterrence, denunciation, rehabilitation and community protection. The Sentencing Act also lists a number of aggravating and mitigating factors that must be taken into account in determining a sentence. These factors are not exhaustive.
11.6The Act therefore creates a framework for the exercise of judicial discretion, providing guidance on both the purposes of sentencing and factors to be considered in an individual case. The Act is not prescriptive, and the factors do not dictate a particular outcome.
11.7For murder, there is a strong presumption in favour of life imprisonment. The presumption may be displaced if a sentence of life imprisonment would be “manifestly unjust”, but the threshold for displacement is a high one. It is apparent from case law that it will be met only in exceptional cases.
11.8The Law Commission has previously reviewed aspects of sentencing in its Report Sentencing Guidelines and Parole Reform, which considered overall issues of fairness and consistency within our sentencing system. In this review, we are considering the narrower question of whether the existing law allows courts sufficient flexibility to impose sentences that take account of an offender’s experience as a victim of family violence where such offenders kill their abusers.