No 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.

<p>Section 102 of the Sentencing Act 2002 gives judges’ only limited discretion when sentencing for stage-1 murder: the discretion to rebut the presumption of life imprisonment in circumstances where the sentence would otherwise be “manifestly unjust”. This is a high threshold, and the Court of Appeal has said that it will be met only in exceptional cases. The judgment in R v Cunnard is the first time that a person who derived their conviction of murder from a principal offender has had the presumption displaced, and this essay explores whether or not this decision has lowered the threshold to establish manifest injustice. Although Miller J’s judgment conforms to the common features that exist in the few cases where the presumption has been successfully displaced, it is not without criticism. There are issues as to whether an overall assessment of the circumstances of the offence and the offender were made, as well as significant concerns regarding the emphasis the judge placed on sentence parity between co-offenders.</p>

<p>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 paper 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 paper 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.</p>

<p>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 paper 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 paper 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.</p>