Sentencing Reform in New Zealand: An Analysis of the Sentencing Act 2002
| DOI | 10.1375/acri.36.3.249 |
| Date | 01 December 2003 |
| Published date | 01 December 2003 |
| Author | Julian V. Roberts |
An Analysis of the Sentencing Act 2002
Julian V. Roberts
University of Ottowa, Canada
Sweeping changes have recently been made to punishment practices in
many western nations. A number of these have reflected punitive,
penal populism. The purpose of this essay is to examine recent reforms
in New Zealand which reflect a philosophy of “bifurcation” with respect
to the punishment of offenders. Harsher treatment is introduced with
respect to the more serious forms of offending, while at the same time
other elements of the Sentencing Act represent a more rational and
moderate approach to sentencing reform. The Sentencing Act 2002 intro-
duces a number of changes to the sentencing process in New Zealand.
This article reviews some of the more important elements of the Act,
beginning with the legislated statement of the purposes and principles of
sentencing. The statutory purposes include the goals of rehabilitation,
deterrence and incapacitation that have been cited in similar statements
in other jurisdictions. The author explores the significance of various
components of the Sentencing Act in light of experience in other juris-
dictions such as Canada and England and Wales. In a number of areas the
New Zealand statute offers a superior alternative to statutory language
adopted in other countries.
Although vast, the international literature on sentencing reform has to date paid
scant attention to developments in New Zealand (although see Thorp, 1997).1 This
will surely change as a result of the Sentencing Act 2002 (hereafter the Act) which
became law in 2002. Together with the Parole Act 2002, it replaces much of the
Criminal Justice Act 1985, and constitutes the first comprehensive sentencing
reform in many years. These reforms follow a government review of sentencing
policy which resulted in a comprehensive discussion paper published in 1997
(Ministry of Justice, 1997). The New Zealand legislation will be of interest to all
other common law jurisdictions, several of which, like England and Wales are
currently reviewing their sentencing framework (Secretary of State, 2002). As any
sentencing scholar will attest, other countries have had only mixed success in
achieving the goals of sentencing reform, such as reducing the use of incarceration
Address for correspondence: Julian V. Roberts, Professor of Criminology, Department of
Criminology, University of Ottawa, 25 University Street, PO Box 450, Station A, Ottawa,
Ontario, Canada. Email: jvr1@sympatico.ca
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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VOLUME 36 NUMBER 3 2003 PP. 249–271
JULIAN V. ROBERTS
in a principled way (e.g., Clarkson & Morgan, 1995; Freiberg & Ross, 1999; Tonry,
1996; Tonry & Hatlestad, 1997).
Background:The Context of Sentencing Reform
Sentencing reform inevitably develops in a context of social reaction to crime, and
reflects a myriad of influences that scholars are only recently coming to explore and
understand (e.g., Garland, 2001). It is now clear that the wave of punitive policies
in the United States (US) and other jurisdictions with respect to diverse categories
of offenders has not been provoked by rising crime rates, as some of the most
punitive policies have emerged in the 1990s, during a period of declining crime
statistics (see Roberts et al., 2003 for a discussion). Other forces are at play, and this
observation appears to hold true for New Zealand as well (see Brown and Young
(2000) for a thorough examination of penal policy in this country).
Crime Trends in New Zealand
Over the past three decades, New Zealand has experienced the same general
pattern of crime trends found in other western nations.2 The crime rate rose
steadily during the period 1970–1992, from 55 incidents per 1000 population to
132 in 1992, an increase of 140%. Between 1962 and 1995 the crime rate tripled.
As with other countries such as Canada, in 1992, the crime rate stabilised and
actually declined slightly to 111 reports per 1000 population in 2000. Violent
crime statistics also show some evidence of decline during the 1990s, falling from
4.2 to 3.5 offences per 1000 population. The homicide rate has varied little,
although it declined over the period 1985 to 2000. The rate of sexual offences
also remained stable during the 1990s. Thus while New Zealand did not experi-
ence the significant (and annual) declines in crime rates seen in Canada and the
US in the 1990s, nor did crime rates continue to escalate as they had done in
previous decades.
However, these statistics, drawn from the New Zealand statistical agency, may
not be the ones that carry the greatest weight among politicians and the public.
The lobby group called “Sensible Sentencing Trust” cites other statistics such as a
4850% increase in murder over the past 50 years and a 108% increase in violent
crime over the past decade. Such statements help to propel a populist penal agenda,
and confirm public perceptions of an ever-increasing crime problem for which the
criminal justice system has no effective response (Sensible Sentencing Trust,
2002).3 Political parties, too, have eschewed careful analysis of crime statistics in
favour of inflammatory statements about the level of crime. The New Zealand First
party for example, precedes its law and order policy platform with the assertion that
“New Zealand has changed from being safe to a crime-ridden, ill-disciplined and
violent society” (New Zealand First, 2002). Statements such as these may be
responsible for what Brown and Young (2000) describe as “increasing levels of
public concern about crime and dissatisfaction with what is perceived to be great
leniency in the sentencing of offenders” (p. 3).
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SENTENCING REFORM IN NEW ZEALAND
The Referendum on Criminal Justice
The winds of penal populism that have been blowing across western nations (see
Roberts et al., 2003) have also come to New Zealand. The most striking example of
this is the criminal justice referendum held in 1999. In an era characterised by the
manipulation of public opinion, the New Zealand referendum stands as a paradigm
example of a leading question. Respondents were asked the following question:
“Should there be a reform of our justice system placing greater emphasis on the
needs of victims, providing restitution and compensation for them and imposing
minimum sentences and hard labour for all serious offenders?” This questions
preposterous concatenation of support for victims and hard treatment for offenders
means that respondents cannot support victim assistance without simultaneously
endorsing a highly punitive stance towards serious offenders.
Wording the question in this way guaranteed the result anticipated by the
sponsors of the question: fully 92% of the populace responded affirmatively.
Although this referendum will stand for years as a classic example of how not to
sound public opinion with respect to criminal justice policy, it has had an impor-
tant impact on the tenor of the debate in New Zealand. Previous election
campaigns had included discussion of criminal justice issues (e.g., Pratt & Treacher,
1988), but they became central to the 2002 campaign, and the 1999 criminal
justice referendum is in considerable measure responsible for this state of affairs.
Political Responses to Crime
Ignoring the leading nature of the question, the political parties rushed to align
their criminal justice policies with the direction advocated by the referendum.
ACT New Zealand affirmed its support for tougher sentencing and argued that
“92% of New Zealanders voted for tough penalties, and more concern for victims.
Labour’s Sentencing Reform and Parole Reform Act does the opposite” (ACT,
2002). In its electoral platform, ACT advocated a number of American-style
justice reforms, including the abolition of all forms of early release, mandatory
DNA profiling, cumulative sentencing and providing victims with the right to
comment on sentencing. This last proposal goes much further than victim impact
schemes in other common law jurisdictions, where victim input at sentencing is
generally restricted to conveying information about the effects of the crime.
Several parties advocated natural life sentences for the most serious offenders,
and mandatory minimum sentences for violent offenders (see Clark, 2002, for
further discussion). Finally, as will be seen later in this article, although most
elements of the Sentencing Act 2002 are inconsistent with a punitive and populist
perspective, the government apparently felt that it was important to acknowledge
the referendum. Thus the official summary of the Sentencing Act 2002 lists the ways
in which this Act (and the companion statute, the Parole Act) responds to the
1999 referendum on criminal justice (see Ministry of Justice, 2002, p.2). In
addition, the Minister of Justice stated in a press release that taken together, the
Sentencing and Parole Acts “respond to the public concern expressed by the refer-
endum” (cited in Clark, 2002). The government clearly wanted the Victims Act,
the Sentencing Act and the Parole Act to be seen as an integrated package which
reflected widespread public concern about crime.
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
251
JULIAN V. ROBERTS
In a similar vein, the New Zealand First party promised increased use of manda-
tory minimum sentences of imprisonment for violent offenders, despite the growing
international evidence calling these sentences into question for violating consensual
sentencing principles such as...
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