Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models
New Zealand is a good example of a jurisdiction that has declined to introduce mandatory minimum sentences of imprisonment for serious crimes, despite populist pressure. In 1999, a referendum was conducted in which residents were asked the following question:
"Should there be a reform of our justice system placing greater emphasis on the needs of victims and imposing minimum sentences and hard labor for all serious offenders"; (emphasis added). In light of the wording of the question it is not surprising that 92% of the sample responded affirmatively. In the 2002 electoral campaign, several parties advocated minimum sentences for violent offenders. For example, the New Zealand First party promised, if elected, to implement mandatory minima for violent offenders. However, the government did not pursue this course of action, electing to pass a Victims' Rights Law in 2002, and then to introduce a sentencing reform Bill (The Sentencing Act 2002).
In 2002, the statutory framework of sentencing in New Zealand was revamped as a result of passage of the Sentencing Act . The purpose and principles of sentencing were put on a statutory footing, with the principle of proportionality assuming a central role in determining sentence severity. As well, there is a clear statutory enunciation of the principle of restraint in sentencing. The language used in the New Zealand statute is particularly directive. Courts are instructed that:
s. 16(1) When considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community.
The court must not impose a sentence of imprisonment unless it is satisfied that:
- a sentence is being imposed for all or any of the [statutory] purposes [of sentencing] and
- those purposes cannot be achieved by a sentence other than imprisonment; and
- no other sentence would be consistent with the application of the principles [of sentencing].
It appears unlikely that New Zealand will adopt any mandatory sentences in the near future. New Zealand represents an interesting example of a country that has resisted the temptation to introduce mandatory sentences of imprisonment, despite the presence of some of the pressures that have elsewhere resulted in such legislation.
- Brown, M. and Young, W. (2000). Recent Trends in Sentencing and Penal Policy in New Zealand . International Criminal Justice Review , 65: 45-52.
- Hall, G. (2002). Sentencing . Wellington: Butterworths.
- Roberts, J.V. (2003). An Analysis of the Statutory Statement of the Purposes and Principles of Sentencing in New Zealand . Australia and New Zealand Journal ofCriminology , 36(3): 249-271.
- Thorp, T. M. (1997). Sentencing and Punishment in New Zealand . In: M. Tonry and K.
- Hatlestad (eds.) Sentencing Reform in Overcrowded Times . New York: Oxford University Press.
- Date modified: