4-Other Sentencing Principles

6/4/2014 4.
Other Sentencing Principles Ministry of Justice, New Zealand

http://www.justice.govt.nz/publications/global-publications/s/sentencing-policy-and-guidance-a-discussion-paper/4.-other-sentencing-principles 1/8
restraint/minimum intervention
equality before the law
equality of impact
controlling public expenditure (Ashworth 1992, pp73-8).
4. Other Sentencing Principles
4.1. Introduction
4.2. Restraint/Minimum Intervention
4.2.1. New Zealand law
4.2.2. Imprisonment as the sentence of last resort
4.2.3. Issues
4.3. Equality Before the Law
4.3.1. The offender's financial situation
4.3.2. The offender's employment status
4.3.3. Racial bias
4.4. Equality of Impact
4.5. Controlling Public Expenditure
4.6. Other Principles
4.7. Summary
4.1 Introduction
This chapter looks at principles which further guide the courts when imposing a sentence in accordance with
whatever sentencing goals or rationales have been selected, or with how they have been ranked. The principles help
to determine the type and amount of sentence within the structure set by the goals and rationales. Many of these
principles are consistent with several fundamental goals or rationales. They are often categorised as follows:
The major difficulty with their application, as is apparent from the discussion below, is the potential for conflict. By
following one principle, another or others will often be breached. Any attempt to give sentencing a systematic basis
needs to resolve these conflicts, or at least provide a rational basis for choosing between conflicting principles in
particular cases
4.2 Restraint/Minimum Intervention
This principle argues for the use of the least intrusive and least severe sanction possible, given the circumstances of
the offence and the offender, and the intended aims of the sentencing system. This means that where possible
monetary penalties are imposed rather than community-based sentences, community-based sentences are used in
preference to imprisonment, and terms of imprisonment, where imposed, are as short as possible. The principle is
founded on the humanitarian view that the pain of punishment should be minimised as far as possible. On a more
pragmatic line, it connects with the principle of using the least costly sanction possible (see section 4.5). The focus
6/4/2014 4. Other Sentencing Principles Ministry of Justice, New Zealand
on the sentence of imprisonment means the principle is most frequently expressed in terms of minimisation of the
use of imprisonment, or imprisonment as the last resort.
The Victorian Sentencing Act 1991 sets out the principle with respect to all types of dispositions (custodial, intensive
correction orders, suspended sentences, community-based orders, fines, dismissals, discharges, and
adjournments), including stating the hierarchy of these dispositions (s7). The general rule is that the "court must not
impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the
sentence is imposed." The Act goes on to spell out for each of the particular types of sentences and orders that they
should not be imposed unless in the opinion of the court the purpose of the sentence cannot be achieved by a less
severe type of sentence (s5(3)-(7)).
4.2.1 New Zealand law
This guiding principle in respect of imprisonment is stated in s7 of the Criminal Justice Act 1985. This directs that
when sentencing a person convicted of an offence punishable by imprisonment, the courts shall "have regard to the
desirability of keeping offenders in the community so far as that is practicable and consonant with promoting the
safety of the community". The use of the sentence of imprisonment is thereby limited to cases where it is not
practicable to give an alternative sentence and/or imprisonment is necessary for the safety of the public.
The phrase "so far as that is practicable" could concern assessment of whether the person is able and willing to
abide by the conditions of a monetary or community-based sentence and unlikely to reoffend. (This approach is spelt
out in its converse form in S9 of the Act, which states that the court shall not be limited in imposing custodial
sentences where it is satisfied that offenders are "unlikely to comply with any other sentence ... that would otherwise
be appropriate".) Alternatively, it could be that where there are support services from family or community
organisations to assist and supervise the offender, then that person should not be imprisoned. Section 7 goes on to
state that any sentence of imprisonment shall be as short as is "consonant with promoting the safety of the
community". The courts have interpreted promoting the safety of the community to mean not only ensuring protection
from the particular offender, but also deterring other persons from committing similar offences (Hall 1993-97, D/102).
4.2.2 Imprisonment as the sentence of last resort
This "general limitation on imprisonment", as s7 is entitled, reflects a view that imprisonment should be a last resort
in dealing with offenders. This view has been particularly prominent in the last three decades. For example, the
second stated term of reference for the 1981 Penal Policy Review Committee was to "consider the means by which
the incidence of imprisonment can be reduced to the greatest degree consistent with the maintaining of public safety"
(Penal Policy Review Committee 1982, p10). In its report the Committee was adamant that imprisonment should be
used as a penalty of last resort and that prison terms should be as short as is consistent with public safety (Penal
Policy Review Committee 1982, pp43, 48).
Several influences have been responsible for this policy view gaining currency but generally it can be attributed to a
decline in the ideological popularity of imprisonment. This decline stems partly from a recognition of the grave and
extreme severity from a humanitarian point of view of an action which deprives individuals of their liberty and removes
them from society to a place of confinement. In the early 1970s a school of criminologists argued for the abolition of
imprisonment as a sanction. Although their view clearly has not prevailed, their supporting arguments involving the
inefficacy of imprisonment have remained persuasive. These include the argument that prisons are rarely able to
reform or rehabilitate the offenders in them, partly because of the alienating environment of prisons. It is asserted that
many inmates are not deterred from future offending by their experience of imprisonment and, more contentiously,
that prisons for various reasons (including the effects of imprisonment on the character or personality of some
inmates) may actually cause crime. This is argued on the basis of findings that a person is more likely to be
reconvicted the more custodial sentences they have served. Furthermore, imprisonment is viewed as a degrading loss
of basic freedoms in an unnatural environment (Ashworth 1992, pp212-7).
structural biases towards imprisonment within the criminal justice system (ingrained sentencing views)
resistance to change from those in the system
alternatives to imprisonment failing through being under-resourced, under utilised, or underskilled, and hence
lacking credibility
using non-custodial sentences for other than the targeted group so that they become alternatives to other
alternatives to imprisonment, existing alongside rather than replacing prison sentences (see Pratt 1987, pp151-5)
the perspective that increasing imprisonment rates successfully reduces crime.
Another major influence is the increasingly high total capital and operating costs of prisons, and the cost to the state
of supporting the dependants of those in custody. These issues are further discussed in section 4.5. The social costs
of imprisonment have also gained greater recognition, not only for the inmates but also in terms of the great personal
strains placed on family and domestic relationships.
In addition to arguments used against imprisonment itself, there are arguments in favour of shorter rather than longer
custodial sentences. A key assertion is that, to the extent that imprisonment may act as an individual deterrent, it
appears to do so irrespective of the terms involved (i.e. longer sentences for particular crimes do not lead to
reductions in those crimes), and that it is the first six months of prison life that are the most traumatic for the majority
of inmates, who after that can generally accept the routine.
The above reasons were all discussed in the report of the Penal Policy Review Committee (1982, pp37-43), and have
been responsible for the expansion of non-custodial sanctions. The irony is that, despite the widespread international
acceptance of these viewpoints, prison populations have been increasing in many countries in the last two decades.
One reason for that phenomenon is the simultaneous working of another policy, that violent offenders should always
be imprisoned and that to safeguard the general public such offenders should be incapacitated for long periods.
In other words, there is a group of serious offenders for whom alternatives to imprisonment are not considered
appropriate. Indeed, in New Zealand s7 of the Criminal Justice Act (discussed above) must be read subject to s5.
This rules that where an offence involves serious violence, the discretion not to imprison is limited to the finding of
"special circumstances", and cannot therefore be exercised on grounds of the general desirability of avoiding the use
of custodial sentences.
Other reasons why the principle of restraint has been frustrated include matters of practice and organisation within
the criminal justice system, and theoretical and political pressures. Some examples are:
4.2.3 Issues
The principle acts as a general restraint on the overall level and severity of sentences. If it is applied in individual
cases to ensure that the sentence is no more than is necessary to achieve the particular aim, conflict with the
principle of equality before the law is likely. For instance, if the aim is to prevent reoffending, then for some offenders
a community-based sentence may be sufficient, whereas the background and characteristics of another offender
convicted of the same offence may suggest that imprisonment is required.
Secondly, in order to apply the principle that each sentence must be no more severe than is necessary to achieve
the purposes for which the sentence is imposed it is necessary to establish the aim(s) of the sentencing process in
respect of particular offences/offenders. Furthermore, the courts have to be clear as to what the aim of each type of
sentence is and that needs to be consistent from case to case.
4.3 Equality Before the Law
This principle argues that certain personal characteristics not pertaining to the offender's crime should be excluded
and considered irrelevant to sentencing decisions. Consistent application of the principle is dependent on there being
a general consensus as to what constitutes such characteristics. The New Zealand Bill of Rights Act 1990 includes
"the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993" (s19). The
Human Rights Act prohibits discrimination on the grounds of sex, marital status, religious or ethical belief, colour,
race, ethnic or national origins, disability, age, political opinion, employment status, family status, and sexual
orientation (s21). If it is considered that equality before the law is a critical aspect of that right then sentencing
decisions should not differentiate offenders according to any of the above grounds. There would probably be fairly
widespread agreement on this. In the United States some sentencing guidelines produced by Sentencing
Commissions (e.g. the Minnesota and Federal guidelines - see section 11.4) provide a list of factors which must be
excluded from consideration in sentencing. These generally include age, race, sex, and marital status (along with
others). Furthermore, it is sometimes argued that the offender's financial situation and employment status should not
be taken into account in sentencing.
4.3.1 The offender's financial situation
A blanket exclusion of this factor is problematic. Most people would agree, and the courts have stated, that an
offender should not be able to avoid a prison sentence by reason solely of being in a position of being able to pay a
significant financial penalty (see Markwick (1953) and Copley (1979) quoted in Ashworth 1992, p180). It may,
however, be impractical to impose a large fine, which would otherwise be appropriate, on a poor person who has little
chance of paying it, or could only do so over an extremely lengthy period of time, so that an alternative sanction
needs to be considered. In New Zealand there is in fact a legal obligation to take into consideration "the means and
responsibilities" of the offender when deciding the actual amount of any financial penalty (Criminal Justice Act 1985,
s27). A more extreme example of this obligation is the system of unit fines which exists in a number of European
jurisdictions and was introduced in England and Wales in 1991, but repealed in 1993. Such systems quite explicitly
take the offender's means into account in an effort to ensure that offenders convicted of like offences are deprived of
an equivalent proportion of their disposable incomes as punishment for the offence. (The England and Wales scheme
required the courts to assess the seriousness of the offence in terms of a number of units and then multiply that by a
dollar figure, which was the offender's weekly disposable income divided by three, so that offenders were being
penalised by being deprived of a set proportion of their income for a particular number of weeks (determined by the
nature of the offence).) The principle here is one of equality of impact (see 4.4 below) at the expense of strict equal
treatment by the law.
The same arguments as to means and practicality apply to reparation orders. The New Zealand courts have indicated
that reparation orders must be realistic in terms of the offender's ability to pay (see 3.5.8). This has implications in
terms of equality before the law if reparation to some extent offsets the other sentences imposed. As with fines, the
issue is that the wealthy should not be able to buy their way out of heavier sentences (see 3.5.7).
Strict equality before the law is, however, applied in New Zealand in respect of the large number of fixed fines
(infringement fees), mainly for traffic offences, which do not vary according to the means of the offender.
4.3.2 The offender's employment status
In departure from the principle of equality before the law, the courts have interpreted the loss of employment following
an offender's apprehension as a mitigating factor in determining that offender's sentence (Hall 1993-97, B/183). This
would seem to result in a previously employed offender receiving a more lenient sentence than an unemployed
offender for the same offence. Similarly, the courts may adjust the type or length of sentence downwards to prevent
the offender losing his or her job, so that employed offenders are more likely to be fined than receive a community-
based or even custodial sentence. It has been argued that this latter course of action is not discrimination against the
unemployed, but that being employed is a valid element to take into account in determining whether it is practicable
to keep an offender in the community and avoid imprisonment. This is an example of the principle of restraint taking
priority over that of equality before the law (Ashworth 1992, p179). The justification is that since it is not possible to
determine with certainty and exactitude what an appropriate punishment is in any given case on the basis only of the
the offender's pregnancy or responsibility for very young children;
the need for the offender to serve a custodial sentence in segregated confinement for his or her own protection
from other inmates because of the nature of the offence or previous work background;
where a member of the offender's family may suffer abnormally in the offender's absence.
circumstances of the offence, then some practical considerations, such as regard for avoiding excessive use of
imprisonment, can be applied on an individualised basis, even if it involves some inequality of treatment.
The same end of reducing imprisonment could be achieved without the same degree of unequal treatment by
generally replacing sanctions of imprisonment with community-based sentences for particular offences. If there are to
be discriminatory distinctions among individuals made by the sentencing system, then this departure from the long-
standing principle of equality before the law needs a sound philosophical basis so as to retain the confidence of the
community.
4.3.3 Racial bias
It is often claimed that sentencing practices discriminate against offenders from racial minority groups, particularly in
the use of custody (see Chapter Ten). The strong possibility is that normal sentencing practices, while not overtly
incorporating a racial bias, will reflect and not be able to correct earlier racially discriminatory decisions in the
processes leading up to sentencing. There is also the possibility that if other stages in the criminal justice system
are exhibiting a systematic racial bias (despite safeguards and racial awareness training) there is no singular reason
why sentencing should be any different. It is possibly worth considering whether a guideline statement of principle on
the matter of avoiding discrimination on the grounds of race in sentencing would alleviate the problem of actual or
perceived discrimination in this area.
4.4 Equality of Impact
This principle conflicts with that of equality before the law, arguing instead that because all people are not equal in
terms of social, economic, and personal circumstances, treating all people equally will result in injustices.
It suggests the need to adjust sentencing to the particular circumstances of the offender, as in the already cited
example of unit fines. At its most extreme the principle would lead to sentencing which discriminates positively
towards the socially disadvantaged. As well as involving complex calculations, this would lead to major variations in
sentences for the same offence. The principle could also justify ever-increasing terms of imprisonment for repeat
offenders because of the ever-diminishing impact of prison on those who keep returning.
As a general rule sentences are ranked according to their impact on the 'average' person, and equality of impact is
most often applied in the sense of preventing an offender with particular circumstances or characteristics from
suffering unusual hardship if a normal sentence were imposed. This leads to a downward adjustment in the sentence
(in terms of type or length of sentence). In this sense the principle is allied to concepts of mercy and humane
treatment.
Relevant offender characteristics could include advanced age or bad health or disability. The latter two factors have
certainly influenced the New Zealand courts on occasions to reduce terms of imprisonment, but on others they have
refused to interfere with a sentence for these reasons (see Hall 1993-97, B/161/2-164 and B/170-171). There are no
hard and fast rules in this area, with considerable discretion being available for what will sometimes be difficult
choices. Other considerations which may constitute mitigating factors through this principle include:
There are variations between the English and New Zealand courts in these sorts of cases (see Ashworth 1992, p136 ;
Hall 1993-97, B/183-191). These circumstances can also be dealt with through other mechanisms such as the
exercise of the prerogative of mercy or special parole or early release provisions, which is particularly the situation of
pregnant offenders (see s94 of the Criminal Justice Act which provides that the Minister of Justice may direct the
early release of inmates who have given birth and inmates suffering from serious illness who are unlikely to recover)
(Hall 1993-97, B/187/2-191).
4.5 Controlling Public Expenditure
In its simplest terms, this principle states that sentencers need to take into account the cost of administering
sentences and, in its most extreme form, it advocates that the cost of sentences be kept within a particular level from
year to year. Under some options involving this principle, sentencers cannot send offenders to prison once a fixed
prison capacity has been reached (meaning that they must impose alternative sentences or defer imposing
sentences of imprisonment until some inmates are released). Other suggestions include an annual allocation of
prison space for each judge.
The Minnesota, Washington, and Oregon sentencing guidelines are tied to available (or foreseeable) corrections
resources. As part of the resource constraint policy, penalties are reduced for some crimes when penalties are
increased for whatever reason for others. Minnesota's enabling legislation required the sentencing commission to take
the state's prison capacity into account, which was interpreted as meaning that the guidelines had to result in prison
numbers coming under that capacity. The enabling legislation in Washington required the commission to assess the
impact of their guidelines on prison resources, and draw up alternative guidelines which were consistent with current
prison capacity if the original ones would result in this capacity being exceeded. The intention seems to have been
that this resource constraint would oblige the commissions concerned to allocate prison sentences to the most
serious offences and have non-custodial sentences for less serious offences (Kramer, Lubitz, and Kempinen 1989,
p571). To enable the drafting of guidelines which will not result in prison capacity being exceeded the drafters must
be able to accurately project the impact of such guidelines. This exercise will be easier or harder depending on the
amount of discretion given to sentencers by the guidelines, that is the breadth of sentencing ranges for particular
offence/offender combinations and the degree to which there is room to depart from the guidelines.
New Zealand does not have any legal provisions or case law which ties sentencing to available corrections resources
or requires consideration of the resource implications of sentencing decisions.
The principle is a form of targeting of resources. Because the cost of imprisoning someone constitutes a significant
economic burden on the state, it should be reserved only for those for whom cheaper options involving the offender
remaining in the community are clearly not appropriate due to the risk the offender would constitute to society. This is
simply a restatement of the principle of restraint, or at least a statement of one justification for that principle.
Community-based sentences are generally less costly than imprisonment, with fines less costly still and revenue
earning. Several cautionary notes need to be sounded. The cost to be saved by not imprisoning X number of offenders
for Y number of days will not be X multiplied by the average cost for each prisoner for each day. This is because
about 84 per cent of the running costs of prisons (such as personnel and capital costs) are relatively fixed.
(In 1993/94 the total cost for the management of prisons in New Zealand (both sentenced and remand facilities) was
$206.02 million. This can be itemised as follows:
(i) operating costs 33.26m (16.1 per cent)
(ii) personnel costs 116.06m (56.3 per cent)
(iii) capital charges 39.85m (19.3 per cent)
(iv) depreciation 15.77m (7.7 per cent)
(v) leave provision 1.08m (0.5 per cent))
The marginal cost of imprisoning one more person in an existing prison is minimal, although at some point the
incarceration of increasing numbers of offenders will exceed prison capacity and will require an additional institution
restraint/minimum intervention
equality before the law
equality of impact
controlling public expenditure.
(representing a high marginal cost). Similarly, a progressive reduction in inmate numbers will eventually affect
personnel costs in each institution and then the number of institutions required.
The prison population is more likely to be reduced and savings achieved through courts imposing shorter sentences
as against longer ones, rather than by imposing fewer shorter sentences. This means that economic reasons are not
always going to be a good justification for using community-based alternatives to imprisonment, because they are
more likely to replace short sentences (see Landreville 1995, pp43-5). This is particularly the case if the alternatives
(such as electronic monitoring) are cost-intensive.
Obviously if community-based alternatives are simply used to supplement prison sentences there will be no savings,
and there will be only limited savings if short prison sentences are replaced by long community-based sentences.
Significant savings are only likely to be generated over the long term as the result of the cumulative effect of
consistently using community-based and monetary sentences in cases where imprisonment would otherwise have
been imposed.
4.6 Other Principles
Two other principles or concepts sometimes used to justify particular sentencing practices are justice and humanity.
The concept of justice is taken to mean that the particular punishment should be appropriate to the offence and the
offender, and that like cases should be treated similarly. The concept of humanity directs that punishment should not
be cruel, inhumane, or disproportionate to the offence (Landreville 1995, p52). Thus stated, the two concepts appear
to overlap and both have connections with the sentencing rationale of just deserts, in which proportionality is the key
element (see 3.1 above).
4.7 Summary
1. The main guiding principles of sentencing which will apply irrespective of whatever sentencing goals are selected
are usually considered to be:
Some authorities put forward justice and humanity as additional important principles.
2. Interpreted strictly, these principles have a tendency to conflict with one another and, in the case of restraint, with
other policies concerning the disposition of serious offenders. The application of these principles, with the exception
to some extent of restraint, is not spelt out in legislation in New Zealand. At issue is whether there should be
legislative or regulatory guidance as to how these principles should be applied and in what circumstances will some
increase in importance at the expense of others.
3. Issues for consideration include:
(a) Whether the principle of restraint should be used to reduce or limit overall sentencing levels, or exercised in
respect of individual sentencing decisions, or both?
(b) Whether the principle of restraint should be legislatively defined with respect to all types of sentence, rather than,
as is currently the case, only with reference to imprisonment?
(c) Whether there should be a guideline statement of principle that sentencing decisions should not take account of
colour, race, ethnic or national origins, sex, marital status, or religious or ethical belief? Are there other offender
characteristics which should be excluded from sentencing consideration, e.g. employment status?
(d) Whether departure from the principle of equal treatment before the law should be limited to the application of
monetary sentences, where it is required for practical reasons, or other instances where it is necessary to alleviate
the extreme hardship which a normal sentence would cause a particular offender? Are there other circumstances
where such departures are justified?
(e) To what extent should the costs of sentence administration play a part in the considerations of those formulating
sentencing guidelines?

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