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Communtity Law Manual | Criminal Courts | How the judge decides your sentence

Sentencing: The judge’s decision about punishment

How the judge decides your sentence

Sentencing principles and important factors

Principles of sentencing

Sentencing Act 2002, s 8

When sentencing you, the judge must take into account principles such as:

  • the seriousness of the offending and your degree of blame (“culpability”)
  • the seriousness of the type of offence
  • the effect of the offending on the victim
  • your whānau, community and cultural and socio-economic background.

Aggravating factors

Sentencing Act 2002, s 9

In deciding on your particular sentence, the judge will look at factors that might increase the sentence (“aggravating factors”) including:

  • whether the offence involved actual or threatened violence or actual or threatened use of a weapon
  • whether the offence was committed while the you were on bail or on parole
  • the extent of any loss, damage or harm resulting from the offence
  • any particular cruelty in carrying out of the offence
  • whether you took advantage of a position of trust or authority in relation to the victim
  • whether the victim was particularly vulnerable because of age or health or any other factor known to you (for example, whether or not children were present)
  • any planning ahead (“premeditation”)
  • any previous convictions.

Mitigating factors

Sentencing Act 2002, s 9

When they sentence you, the judge must also take into account factors that might reduce the sentence (“mitigating factors”) including:

  • your age
  • if and when you pleaded guilty
  • the conduct of the victim
  • whether you have diminished intellectual capacity or understanding. (This doesn’t cover situations where at the time of committing the offence you were affected by alcohol or any drug or other substance (unless medically prescribed).
  • if you’ve shown that you’re sorry (shown “remorse”)
  • any evidence of your good character.

Sentencing Act 2002, s 10

The judge is also required to take into account your offers or actions to make amends (putting it right) to the victim. This might include apologies, compensation or the performance of work or service.

Sentencing Act 2002, s 30

Note: A judge cannot impose a sentence of imprisonment unless you have received legal advice, or have been given the opportunity to receive legal advice but turned it down.

Cultural factors

Sentencing Act 2002, s 27

You can ask the court to hear from any person or people you want to call on to speak about your background and how this might be relevant to your offending. This can include your cultural or community background, your family/whānau background and your personal background.

The person you ask to speak for you could be, for example, a member of your family/whānau, or a kaumātua, minister, elder or community worker.

The court can refuse your request only if it’s satisfied that for some special reason this would be unnecessary or inappropriate.

The person or people you call on can also talk about any Restorative Justice or other processes that have been tried (or could be tried) involving you, the victim of your offending and your family/whānau to resolve issues relevant to your offending.

They can also talk about what support from your family/whānau or community may be available to prevent you offending again and about how your background or that support could be relevant to the judge in deciding what sentence to impose.

Reports from probation officers

Sentencing Act 2002, ss 26, 26A

In order to help determine your sentence, the court can ask for a report to be completed.

Stand-down reports

If the offence is a minor one and you plead guilty, sentencing may take place on the same day. The sentence may be given straight away, or a stand-down report may be ordered for sentencing later that day.

The report is prepared by a probation officer and contains information about your personal circumstances and background and about factors relevant to the offending. The report will recommend a particular sentence to the court.

Pre-sentence reports

If sentencing cannot be done on the day, the court will delay sentencing until a pre-sentence report has been prepared. A probation officer will write a report about you and your personal circumstances. In cases where a sentence of home detention or community detention is being considered, information must be included about the suitability of the proposed curfew address or home detention residence, including the safety and welfare of other occupants. It will also include an assessment of your risk of reoffending.

The judge gives this report considerable weight in determining the sentence. These reports contain more detail than stand-down reports. It’s important that you co-operate with probation officers when reports are being prepared, as a failure to co-operate will be reported to the court. These reports are often done closer to sentencing, to include any updated circumstances affecting your situation.

“Plea in mitigation” presented by defence lawyer

If you plead guilty, your lawyer can present to the court what’s called a “plea in mitigation”. This tells the judge about any special circumstances that should be taken into account before you’re sentenced.

The aim of a plea in mitigation is to reduce your sentence by highlighting the factors that lessen (“mitigate”) the seriousness of your offence and show that you take responsibility for your actions.

A plea in mitigation will often include details about the following:

  • Your personal circumstances – any relevant personal circumstances at the time you committed the offence. For example:
    • your income (what you earn) and expenses (your bills)
    • any dependants you have
    • your employment history
    • your medical history
    • your living arrangements (where you live and who else lives there).
  • Your response to your offending – what your attitude and response to your offending have been. For example:
    • if you’ve shown that you’re sorry (shown “remorse”)
    • if you’ve accepted responsibility for what you did
    • if you’ve apologised to the victim (if this isn’t a breach of your bail conditions)
    • if you’ve been to counselling
    • if the offending was out of character for you.

Character references can also be included in a plea in mitigation.

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