Chapter 11
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.948 An alternative approach is to provide more guidance to judges either through statute or sentencing guidelines.949 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.950
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.951 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.952 The Sentencing Act also lists a number of aggravating and mitigating factors that must be taken into account in determining a sentence.953 These factors are not exhaustive.954

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”,955 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,956 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.
948Warren Young and Andrea King “The Origins and Evolution of Sentencing Guidelines – A Comparison of England and Wales and New Zealand” in Andrew Ashworth and Julian Roberts (eds) Sentencing Guidelines: Exploring the English Model (Oxford University Press, Oxford, 2013) 202.
949At 202.
950See, for example, the observations on the United States’ “grid” sentencing model in Andrew Ashworth and Julian Roberts “The Origins and Nature of the Sentencing Guidelines in England and Wales" in Andrew Ashworth and Julian Roberts (eds) Sentencing Guidelines: Exploring the English Model (Oxford University Press, Oxford, 2013) at 2.
951Sentencing Act 2002, s 8.
952Sentencing Act 2002, s 7.
953Sentencing Act 2002, s 9.
954Sentencing Act 2002, s 9(4). The court is not prevented from taking into account any other aggravating or mitigating factor that the court thinks fit, and a factor referred to in s 9 need not be given greater weight than any other factor that the court might take into account.
955The exception to the discretionary approach is found in the three strikes law, which is discussed below beginning at paragraph [11.72].
956Law Commission Sentencing Guidelines and Parole Reform (NZLC R94, 2006).