Crime in New Zealand - Legislation and Sentencing

Legislation and Sentencing

New Zealand has codified its criminal law through various pieces of legislation. Most criminal offences that would result in imprisonment in New Zealand are set out in the Crimes Act 1961, including the Crimes (Repeal of Seditious Offences) Amendment Act 2007 and the Misuse of Drugs Act 1975 - although criminal offences related to specific situations also appear in other legislation. Less serious breaches of the law are dealt with under legislation such as the Summary Offences Act 1981 and the Land Transport Act 1998 where penalties are more often a fine or other community sanctions rather than imprisonment.

Former Prime Minister Sir Geoffrey Palmer believes that when legislation is introduced to parliament it needs 'more and better scrutiny' than it currently receives. He says the volume of new Bills being introduced is greater than Parliament can manage and "The quality of legislation is getting worse. Not enough time and effort is spent on getting it right." Although Parliament is responsible for passing legislation, the courts have responsibility for deciding how laws are to be interpreted and applied - a task made more difficult if parliament has 'not got it right'. The decisions of the courts then create what is called common law. Common law is based on precedents – decisions which are used as a guide, or as an authoritative rule, in later, similar cases. This plays a significant role in the sentencing process.

Legislation has a number of purposes - not least of which is to impose penalties and sanctions for breaches of behaviour proscribed by a particular Act of Parliament. As time goes by, most Acts are amended by successive Governments which sometimes creates confusion and irregularities in their application. In 2006 the Law Commission issued a report which said different courts and even different judges are inconsistent when it comes to sentencing, particularly for less serious offences in the District Court. In 2007, the Labour Government announced it would appoint a sentencing council which would be responsible for bringing greater consistency to legislation, and developing sentencing guidelines. The Government had particular concerns that judges were taking an unduly hard sentencing line with low level offenders leading to prison overcrowding. It put $5.8 million towards developing the council over a period of four years, but it never got off the ground. When National won the election in 2008, Justice Minister Simon Power scrapped plans for the Sentencing Council and also scrapped the Criminal Justice Advisory Board set by Labour in response to a recommendation from the Ombudsman.

Sentencing Councils have been established in many countries similar to New Zealand including England and Wales, Scotland, Victoria, New South Wales, and over 20 American states. Broadly speaking, they are expert bodies established to assist with the development of sentencing policy. The Law Commission said a Council in New Zealand would be independent of political parties and Government and staffed by "five judges, including the Chairman of the Parole Board, and five non-judicial members with relevant expertise (e.g. criminal justice, policing, the promotion of the welfare of victims of crime, the impact of the criminal justice system on Mäori)". The National Government's reluctance to adopt a Sentencing Council seems to reflect what the Prime Minister's chief science advisor, Sir Peter Gluckman, calls New Zealand's 'innate anti-intellectualism'. Indeed, the National Government has shown a clear preference for penal policies put forward by the Sensible Sentencing Trust - led by a farmer with no academic qualifications. This may be why the International Centre for Prison Studies at King's College in London views New Zealand as a 'penal curiosity' - and describes our sentencing strategies as an example of what 'not to do.'