CRJU 301 Sentencing theory and practice Notes PDF

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CRJU 301 Sentencing theory and practice Notes20/02/Criminal Justice system broken? - Incarceration rates per capita - Overpopulation of Maori - Prisoners with mental health/ substance abuse issues 91% - Population continues to grow - No space to put prisonersWhat does the Minister mean by ‘Broken’? ...

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CRJU 301 Sentencing theory and practice Notes 20/02/19 Criminal Justice system broken? - Incarceration rates per capita - Overpopulation of Maori - Prisoners with mental health/ substance abuse issues 91% - Population continues to grow - No space to put prisoners What does the Minister mean by ‘Broken’? - Are people being convicted of things that should not be criminal offences? - Are people being imprisoned or punished wrongly? - Are certain groups being unfairly targeted? - Are there things that aren’t crimes, but should be?

PUNISHMENT THEORY: What are we trying to achieve by punishing? - Any justification for punishment requires us to justify a system which does not try to punish all offenders (prosecutorial discretion), and will inevitably punish some who are innocent - It is unlikely that we will ever agree on ‘the one’ justification: - Different offences/offenders may require different types of punishment - Conflicts between values that we seek to advance, eye for an eye vs rehabilitation - No straight approach Justifications: - Eye for an eye - Prevent similar conduct in the future - It is not fair that the offender benefits - Rules have to be obeyed - To prevent people taking law into their own hands Are we punishing for what has been done, or future events? Is that fair? Why do we punish? - ‘Moral Blameworthiness’ - You chose to put yourself into that position Traditional Punishment theories: Consequentialist Theories - Prospective Focus: Impose punishment to achieve a future consequence - Legitimacy of punishment derives from the social benefits of this future consequence - Stops crime from being committed in the future Retributionalist Theory - Retrospective Focus: Past act was deserving of punishment - Looking at conduct that brought you to this position - Kant- can only look at the nature of the act not the consequences

Consequentialist Theories: - Deterrence - Incapacitation - Rehabilitation - Based on the concept of utilitarianism “the proper course of action is that which maximises utility” Punishment is justified on the basis that - It contributes to an independently identifiable good - It is efficient- costs resulting from punishments are less than the benefits, and no better alternative is available Punishing someone is a wrong in itself: - Therefore, to justify punishment, it must be proportionate and effective - Proportionate to the crime committed, fair - Effective enough to send the message General Issues with Utilitarianism - It devalues the importance of autonomy of the individual and respect by society for that individuality. - It treats sentencing of the offender as primarily aimed at achieving a social outcome. Does it permit Telishment? - Rawls debate – problem, doesn’t matter whether they’re guilty or innocent - Bentham debate – everyone loses faith in the system when they find out the innocent have been convicted, too much of a social cost - Losing the individual because you’re too worried about the big picture Deterrence - Prevent them or others from doing it in the future - Beccaria, Bentham, Posner theories Issues: Economic Efficiency requires three elements: - Certainty – know they will be punished if they do something wrong - Severity – what is the punishment going to be? If it’s not severe enough it doesn’t matter, does the crime pay outweigh? - Celerity – how quickly are you going to be caught and punished? - Limits relevance of personal circumstances - Jardin v R, drug dealer punished harshly, appealed to SC and they agreed it was too harsh, only could take personal circumstances into account a little bit, societal message more important - Ignores reality that people aren’t making a conscious choice - Person may be sentenced more harshly due to matters outside of their control - Moeke v R, minor gang related offending, penalty imprisonment, due to deter the neighbourhood which the problem has enlarged - Impossibility of measuring effectiveness of this theory - Identification of the most effective penalty

Incapacitation - You can’t commit crime if you cannot physically commit crime, e.g. prison - Hugo Black, isolation of the dangerous has always been one of the main points of the CJ system

Rehabilitation - Offending is not an inherent characteristic, human behaviour is the product of antecedent causes, it can therefore be corrected - If you can address the problems, you can go back to that state of goodness you were born with - Correctional rehabilitation, drug/mental problems addressed - Relational rehabilitation, makes them feel like part of the community

Scenario: Imagine that X is being sentenced for theft. It is revealed that the underlying cause of the offending is X’s drug addiction. There are two options for sentencing: a) A term of imprisonment, to be served in a prison. (3mth) b) A term of imprisonment, which can be served in a drug rehabilitation programme. (7mth) Which would you choose? Rehab - Serve a sentence more than 2 years all the rehab options are available to prisoners - Less than 2 years can only serve time R v Ward - Some prisoners would welcome the help, others would contest it, have to be careful it doesn’t look like the judge is punishing twice as much for the crime Issues with rehabilitation - Programs are individual, focus on skills, education - Doesn’t focus on family rehab, counselling to work through the issues of the repercussions of the crime - Issues with drugs, ordering from a judge usually doesn’t do anything, unduly controlling - Proceeds on an inaccurate model of human behaviour - Privileges discretion over accountability - Disproportionate restrictions on liberty - Can’t evaluate effectiveness, only recidivism - May be aimed at certain groups

Retribution: - Focussing on punishing for the action that took place - Retrospective - ‘Eye for an eye’ Theory - Immanuel Kant, Groundwork of the Metaphysics of Morals (1785) “Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime, for a human being can never be manipulated merely as a means to the purpose of someone else.” Justifications 1. Restoration of society’s equilibrium 2. Restoration of society’s moral order

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Immanuel Kant, as a society there is a moral obligation to ensure all that offend are punished Emile Durkheim, the social contract, we exist by having this agreement between us about what is and isn’t acceptable - Furman v Georgia, we punish because if we don’t people will take it upon themselves 3. Honours the autonomy of the offender - Georg Hegel, we recognise your free choice and punish to respect you and recognise you as a human being

Retribution or Vengeance? - Retributionalist theory is justified, vengeance isn’t - Would hope society would stop the point where retribution becomes vengeance - Retribution focus, punishment on what the crime deserves - Vengeance focus, retaliation Retribution requires: a) That the person is morally culpable or a rational actor b) That the punishment is proportionate to the crime John Rawls - It is morally fitting that a person who does wrong should suffer in proportion to his wrongdoing Immanuel Kant - Punishment ought to be ‘pronounced over all criminals in proportion to their internal wickedness’ Retribution is more about communication: Robert Nozick - Retributive punishment is an act of communicative behaviour.. The message is: this is how wrong what you did was… Antony Duf - Punishment should communicate to offenders the censure they deserve for their crimes, and should aim through that communicative process to persuade them to repent those crimes, to try to reform themselves, and thus to reconcile themselves with whom they wronged How do you reconcile conflicts amongst the four theories? - Different levels of crime fit with different theories - Advocate for different punishments

Dominant Theory: USA: -

1860s – 1960s, Williams v New York 1949 Main idea rehabilitation not retribution 1984 Senate Report for Sentencing Reform Bill, everyone doubts rehabilitation Miller v Alabama 2012, for most pf the 20th C emphasised rehab, by 1980’s impose longer sentences and reduce availability of parole, is about retribution and incapacitation 2012 Draft of Model Penal Code, suggests a shift from a singular emphasis on the philosophy of retribution, to a hybrid approach to retribution and incapacitation

VIC, AUS: - Sentencing Act, punishment, rehabilitation, deterrence, a combination - Warner, having a list of conflicting purposes is a theory which we are going to have to live with

UK: -

2003 CJA, incorporate all 4 theories Ashworth, the effect of this is that it allows judges to do whatever they want, because one of the theories is going to justify it. Should be the opposite find theory which is appropriate and then work towards a sentence.

NZ: Sentencing Act, Purposes of sentencing , s7 The purposes for which a court may sentence or otherwise deal with an offender area) To hold the offender accountable for harm done to the victim and the community by the offending; or retribution b) To promote in the offender a sense of responsibility for, and an acknowledgement of, that harm; or rj c) To provide for the interests of the victim of the offence; or restorative justice d) To provide reparation for harm done by the offending; or rj e) To denounce the conduct in which the offender was involved; deterrence/retribution f) To deter the offender or other persons from committing the same or a similar offence; or deter g) To protect the community from the offender; or incapacitation h) To assist in the offender’s rehabilitation and reintegration; or rehab i) A combination of 2 or more of the purposes in paragraphs (a) to (h) No Hierarchy - S(2) to avoid doubt, nothing about the order in which the purposes appear in this section implies that any purpose referred to must be given greater weight than any other purpose referred to - No theory is more important than the other - Some sections in sentencing Act give priority to certain offences e.g. s9A Where does this leave us? - Start with s7 - Judge may select one or more of the principles and apply them - Different principles may point in different directions Carran v Police - Whata J, [26] the purposes and principles of sentencing most obviously in play are the need to denounce and deter this offending, rehabilitation and the requirement to impose the least restrictive sentence. I am also mindful of the importance of maintaining consistency between sentences involving similar offending How does this affect consistency/ faith in the justice system? - “By legislating to give judges a choice of sometimes mutually inconsistent options, Parliament is effectively leaving it to individual judges to follow their preferences, rather than applying the same standard over all cases tried before the courts. Arguably, we are substituting sentencing according to the particular judge for the more constitutionally desirable sentencing according to law.”Ashworth

6/03/19

Sentencing: Options for sentencing Diversion: - Not a ‘sentence’ as individual is convicted - Charge dismissed, conditional on specific terms being met - Entered onto file as receiving diversion Principles of Sentencing: - Section 8(g) Sentencing Act: least restrictive outcome that is appropriate in the circumstances to be imposed (should seek all other options before imprisonment). Edward v Police - Appealing sentence on the basis the judge didn’t follow s8(g) - Should’ve seen all other options before the highest Exceptions - Three strikes sentencing regime - Specific language of offence might direct sentence of imprisonment (don’t have to consider lower ones) Sentence Hierarchy: S10A (2) the hierarchy of sentences and orders, from the least restrictive to the most restrictive, is as follows: a) discharge or order to come up for sentence if called on; b) Sentences of fine or reparation; c) Community based sentences of community work and supervision; d) Community based sentences of intensive supervision and community detention; e) Sentence of home detention; f) Sentence of imprisonment.

Other forms of Punishment: - Name and Shame (including refusal to grant name suppression) - Injunctions - Non-Association Orders, prohibiting you from being around certain people - Disqualification from licensed activity Combinations of Sentences: - S19 allows for the imposition of combinations of sentences in respect of one or more offences

Kiro v R

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If give combination of reparation and custodial, moderation of term of imprisonment should be considered Consideration of the sentence as a whole If two people commit the same offence, the punishment should be equal and fair

Starting point in sentencing: - S8 Impose least restrictive sentence 11Discharge or order to come up for sentence if called on (1)If a person who is charged with an offence is found guilty, or pleads guilty, before entering a conviction and imposing a sentence the court must consider whether the offender would be more appropriately dealt with by— (a)discharging the offender without conviction under section 106; or (b)convicting and discharging the offender under section 108; or (c)convicting the offender and ordering the offender, under section 110, to come up for sentence if called on. Ru v Police - The language says the court must consider Exception: - If the act states that the punishment is imprisonment for the offence, court doesn’t have to consider (2)If any provision applicable to the particular offence in this or any other enactment provides a presumption in favour of imposing, on conviction, a sentence of imprisonment, a sentence of home detention, a community-based sentence, or a fine, then— (a)despite subsection (1), a court is not obliged to consider whether the offender would be more appropriately dealt with in the manner described in any of paragraphs (a), (b), or (c) of that subsection; but (b)the court is not precluded from dealing with the offender in that manner if the court thinks that it is appropriate in the circumstances. Least Restrictive to most restrictive sentences: Discharge without conviction 106Discharge without conviction (ultimate aim, free pass, can still get fined and have to pay court costs) (1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence. (2) A discharge under this section is deemed to be an acquittal. (3) A court discharging an offender under this section may—[require payment of costs or restitution of property, or compensation for loss, damage or emotional harm] 107Guidance for discharge without conviction (test) - The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. Test for Discharge: - Identify the gravity of the offence/ and the seriousness of the offending - Determine the direct and indirect consequences of the conviction - Ask if the consequences are out of all proportion to the gravity of the offending

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Passing the gateway allows for one more consideration, should I (judge) still grant the discharge? (Courts ability to exercise discretion, 106 suggests yes, 107 suggests no).

Factors in favour of granting: - Minor damage - Good character - Remorse - Views of the victim’s family - Travel – Career plans - Lack of prior conviction - Age - Restorative justice - Needs of family - Police support discharge - Accident - Plead guilty - First offence - Provoked Neutral factors: - Mental health/ not taking medication - Peer pressure Factors against granting: - Prior convictions - Assaults over long period of time - Psychological harm to victims - Works with vulnerable children - Not pleading guilty - Deliberate act/ premeditated - Position of trust - Attitude - Lack of remorse - Already been given diversion Approach to Discharge: Moana v Police - Needs to be a ‘real and appreciable risk’ of consequences occurring - Show evidence R v Hughes - Consider all relevant circumstances of the offence, the offending and the offender, as well as the wider interests of the community A one-off chance? Swami - A previous discharge without conviction for offending of the same type must count against a discharge on a later occasion Not for certain offences? Rodrigo - Maybe shouldn’t be available for a certain type of offending e.g. drug dealing - Could still be available for very minor level if appropriate on the facts

Appeals - Convicted 29 years ago, and appealed on the basis of the judge not considering DWC - Allowed on this case, because affected his ability to travel for work DWC: - Most relevant, Rehabilitation Conviction and Discharge - Most relevant theory, hints of all, not obviously any one - Differences with DWC, get a criminal record - More appropriate when you want to send a message S108(1) S109 M v Police - An infinite range of matters may be taken into account in determining the appropriateness of the discharge Consequences of offending is sufficient penalty R v Waiba - Mother has 7-month-old child, giving her a bath and the phone rings, she answers and pulls the plug out of the bath - Talks on the phone for half an hour, realises the water hasn’t drained and the child has drowned - Conviction was appropriate, because there was a message to be sent - Consequence of the offending was a sufficient penalty Multiple Convictions: totality principle Carr -

Five charges, breach of bail, driving with EBA, driving while disqualified and injuring with intent When sentencing picked one of the offences, imposed that and discharged the other

Kisling - 8 counts of offering to supply meth, 1 count of possession of utensils - Gets convicted on all counts so not point in sentencing for utensil

13/03/19 Order to come up for sentencing if required: S110 ‘last chance’ warning. Hold off on sentencing. If remain out of trouble, no penalty will be imposed. - Within a specific period, not exceeding 1 year - Can still impose reparation, costs S111 Calling offender to come up for sentence (1) This section applies if an offender in respect of whom an order is made under section 110— (a) is convicted of a subsequent offence punishable by imprisonment for a term of more than 3 months; or

(b) fails to comply with any other order referred to in section 110(3); or (keep on track of alcoholic or anger management issues) (c) fails to comply with any agreement or fails to take any measure or action of a kind referred to in section 10(1)(b), (d), or (e) (restorative justice)

111(2) Any of the following persons may, at any time within the period specified in the order, apply to a court having jurisdiction to deal with the original offence to have the offender brought before the court to be dealt with for that offence: (a) a constable: (b) a Crown Prosecutor: (c) the Solicitor-General: (d) any person designated by the chief executive of the Ministry of Justice or the chief executive of the Department of Corrections. Pihema v Police - Appeal because the DC judge when reading the file became aware that P was subject to come up for an order to come up for sentencing if required and the judge decided to sentence him for the two different offences - Said you can’t do that under s2 must apply to the court, not allowed - HC said that is correct, but dismissed the appeal because the sentence he was given for both would’ve been consistent with the single offence he was up for anyway When might this be imposed? Minor offences: R v Tafutu - Speaking to police in a threatening manner Prattley v Police - Breach of parole conditions - Sends a warning without sending him back to prison Walker v Police [2013] NZHC 1033 - Stealing $30 worth of clothes, send message making him aware is he offends a...