Open Access Te Herenga Waka-Victoria University of Wellington
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Judicial Discretion in Sentencing: A Justice System that is No Longer Just?

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posted on 2021-11-15, 08:18 authored by Mallett, Sean J.

One of the fundamental principles of the criminal law is consistency: like offenders must be treated alike. However, research has shown that when it comes to sentencing in New Zealand there is in fact substantial regional disparity in the penalty imposed on similarly situated offenders. The situation is unacceptable, and undermines the integrity of the criminal justice system. This paper will explore three different mechanisms for guiding judicial discretion in the pursuit of sentencing consistency. It will undertake an analysis of mandatory sentences and the ‘instinctive synthesis’ approach, both of which will be shown to be unsatisfactory. Instead, the paper will argue that the establishment of a Sentencing Council with a mandate to draft presumptively binding guidelines is the most appropriate way forward for New Zealand. This option finds the correct equilibrium between giving a judge sufficient discretion to tailor a sentence that is appropriate in the circumstances of the individual case, yet limiting discretion enough to achieve consistency between cases.

History

Copyright Date

2014-01-01

Date of Award

2014-01-01

Publisher

Te Herenga Waka—Victoria University of Wellington

Rights License

Author Retains Copyright

Degree Grantor

Te Herenga Waka—Victoria University of Wellington

Degree Name

LL.B. (Honours)

ANZSRC Type Of Activity code

970118 Expanding Knowledge in Law and Legal Studies

Victoria University of Wellington Item Type

Research Paper or Project

Language

en_NZ

Victoria University of Wellington School

School of Law

Advisors

Palmer, Geoffrey