Analysing Sexual Offence Sentences: An Empirical Approach
| Author | A P Simester,D I Simester |
| Published date | 01 December 1990 |
| DOI | 10.1177/000486589002300406 |
| Date | 01 December 1990 |
| Subject Matter | Original Articles |
AUST &NZ
JOURNAL
OF
CRIMINOLOGY (December 1990) 23 (269-283)
ANALYSING SEXUAL
OFFENCE
SENTENCES:
AN EMPIRICALAPPROACH
A P* and D 1** Simester
269
The
judiciary
have
frequently
refused
to
compare
sentences,
stating
that the
circumstances
of
the
offenderandoffence
vary
so
greatly
that
there
isno
workable
basis
uponwhich todo so. This
article
presents
an
empirical
model that
seeks
to identify and quantify the
relative
significance
of
various
mitigating
and
aggravating
factors
which
affectsexualoffence
sentences.
The
results
suggest
thatit
is
possible
to
develop
such a
model.
In
doing
so, theyoffer
evidence
as to the
current
approach
to
sexual
offence
sentencing
of
theNewZealand Court
of
Appeal.
Introduction
The
requirement for .a consistent application of sentencing principles has
been
judicially recognised on many occasions.1Although such consistency is necessary to
preserve public confidence in the administration of justice,
there
is, however, a
reluctance to formalise these principles:"
It is only by allowing the sentencing authorities a wide discretion that they are enabled to take account
of the innumerable factors affecting the nature of the offence, the circumstances of the offence and the
circumstances of the offender, all of which should ordinarily be weighed in determining the appropriate
sentence in the particular case.
For
this reason
the
courts have expressed areluctance to compare sentences from
different cases,
and
have preferred to
treat
sentencing as a subjective matter;
thereby securing
the
flexibility to tailor asentence according to
the
nature of the
offence itself
and
to
the
circumstances
of
the
particular offender."
Nevertheless,
the
twin goals of flexibility
and
consistency
need
not
conflict: one
may be flexible in a consistent manner. Given
that
sentencing is
dependent
upon the
circumstances
of
the
offence and of
the
offender, individual sentences may be
expected to be consistent according to
the
presence or absence
of
the
various factors
that
constitute such circumstances.
This article develops the above statement, and investigates
the
evidence
supporting a"flexible tariff" approach - so roundly dismissed by Lord Reid in DPP
v
Ottewell"
-to sentencing for crimes of a sexual nature" in the New Zealand Court
of Appeal.
The
following propositions
are
developed:
(i) It is possible to extract from
the
cases a model of consistent sentencing,
founded on a "flexible tariff" basis, which will demonstrate in a systematic
manner
the
effect of surrounding. features upon individual cases.
(ii) As acorollary, it is possible to compare sentences, provided
the
presence or
absence
of
mitigating and aggravating circumstances is taken into account.
If a model of
the
type suggested in proposition (i) can be established, then it is
submitted that proposition (ii) follows. Additionally, it is implicit in the first
proposition that the judicial approach to sentencing is intuitively, even if not
explicitly, to vary individual sentences from average levels in a systematic fashion,
according to the mitigating and aggravating features of each case.
Our
article describes the development
of
such an empirical model. By doing so, it
contends that propositions (i) and (ii) are valid. Additionally, the specific
*Assistant Lecturer, Faculty of Commerce, University of Auckland NZ.
** Research Fellow,
Department
of Marketing, University of Auckland NZ.
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