Abstract

One of the fundamental principles of the criminal law is consistency: like offenders must be treated alike. However, research has shown that when it comes to sentencing in New Zealand, there is in fact substantial regional disparity in the penalty imposed on similarly situated offenders. The situation is unacceptable, and undermines the integrity of the criminal justice system. This article will explore three different mechanisms for guiding judicial discretion in the pursuit of sentencing consistency. It will undertake an analysis of mandatory sentences and the "instinctive synthesis" approach, both of which will be shown to be unsatisfactory. Instead, the article will argue that the establishment of a Sentencing Council with a mandate to draft presumptively binding guidelines is the most appropriate way forward for New Zealand. This option finds the correct equilibrium between giving a judge sufficient discretion to tailor a sentence that is appropriate in the circumstances of the individual case, yet limiting discretion enough to achieve consistency between cases.

Highlights

  • Sentencing ... is founded upon two premises that are in perennial conflict: individualized justice and consistency

  • At the other end of the spectrum lies the "intuitive synthesis" approach, a doctrine that removes constraints on judicial discretion entirely, giving the sentencing judge a wide scope to balance the innumerable factors that make up an individual case and come to a decision that is holistically appropriate in all the circumstances

  • Given the effective failure of the Sentencing Act to guide the application of judicial discretion, commentators such as Ip believe that the sentencing guideline judgments issued by the Court of Appeal are a superior means of ensuring discretion is applied consistently in the criminal sentencing context.[33]

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Summary

INTRODUCTION

Sentencing ... is founded upon two premises that are in perennial conflict: individualized justice and consistency. At the other end of the spectrum lies the "intuitive synthesis" approach, a doctrine that removes constraints on judicial discretion entirely, giving the sentencing judge a wide scope to balance the innumerable factors that make up an individual case and come to a decision that is holistically appropriate in all the circumstances. This approach has been adopted in jurisdictions in the federal systems of Australia and Canada, and is underpinned by the belief that there is no objectively "right". The article will conclude that the establishment of a Sentencing Council is the most appropriate mechanism for guiding judicial discretion and ensuring consistency within the criminal justice system

IMPORTANCE OF CONSISTENCY IN SENTENCING
GUIDING JUDICIAL DISCRETION
A Purposes and Principles of Sentencing
B Guideline Judgments
EMPIRICAL EVIDENCE OF DISPARITY IN SENTENCING
MANDATORY SENTENCES
A Lack of Individualisation
B Reassignment of Discretion to Prosecutors
C Statutory Presumptions
THE NEW ZEALAND SENTENCING COUNCIL
A Sentencing Guidelines
B Implementation of the Guidelines
D Composition of the Council
E Departure from the Guidelines
F Constitutional Uncertainties
Judicial independence
Separation of powers
Should the guidelines have retrospective effect?
Hessell v R – Supreme Court attack on the guidelines
Fitzgerald v Muldoon – A modern day breach?
Findings
VIII CONCLUSION

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