Contents

Chapter 11
Sentencing for homicide

The purposes of sentencing

11.11Sentencing is not meant simply to punish. It is also intended to promote community protection and assist offenders to rehabilitate and reintegrate.957 To this end, pre-sentence reports include information on the offender’s rehabilitative needs and future risk of offending.
11.12The courts in the cases we have reviewed have consistently addressed the defendants’ prospects of rehabilitation and risk of reoffending. In R v Erstich,958  R v Raivaru959 and R v Wharerau,960 the defendants’ youth and prospects of rehabilitation and reintegration were found to warrant sentence discounts. As for risk of reoffending, there are examples in both directions. In some cases, low risk has mandated a less restrictive penalty,961 and in one case the Court considered a lengthy sentence might actually increase the risk of reoffending, because in an adult prison the defendant would be exposed to “older criminals who may lead you further astray”.962
11.13Among cases in which the risk of reoffending was considered to be higher are R v Wihongi and R v Rihia – the two most recent murder cases – and in both, risk was relevant to the length of the finite term of imprisonment. In Wihongi, fresh evidence about the appellant’s risk contributed to the Court of Appeal’s conclusion that the finite term should be increased,963 and in Rihia, the Court noted the need for “community protection” in determining sentence.964
957Sentencing Act 2002, s 7(1).
958R v Erstich (2002) 19 CRNZ 419 (CA).
959R v Raivaru HC Rotorua CRI-2004-077-1667, 5 August 2005. 
960R v Wharerau [2014] NZHC 1857 [Wharerau (HC)]; and Wharerau v R [2015] NZCA 299 [Wharerau (CA)].
961For example, R v Wickham, in which the sentencing Judge saw no need to impose a sentence that protected the community from the defendant, as it was “extremely unlikely that you will ever reoffend”: R v Wickham HC Auckland CRI-2009-090-010723, 20 December 2010 at [31].
962R v Raivaru, above n 959, at [32].
963The Court concluded, in the particular circumstances of Ms Wihongi’s case, that “the sentencing principle of community protection is better met by a longer finite sentence, providing a longer period of imprisonment (during which treatment can be provided to Ms Wihongi with a view to reducing future risk). It would also provide a longer period during which some supervision with the possibility of recall is available.”: R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775 at [98].
964R v Rihia [2012] NZHC 2720 at [30]–[32].