Sentencing Reform in New Zealand: An Analysis of the Sentencing Act 2002

Article excerpt

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 introduces 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 jurisdictions 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.

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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 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 experience 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. …