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Communtity Law Manual | Common crimes | How criminal sentencing works

How criminal sentencing works

Overview

Starting points, uplifts and discounts: How a sentence is decided

Case: [2005] 3 NZLR 372 (CA)

If you’re convicted of an offence, the judge will usually first set a “starting point” sentence, based on what you did in your particular case and including any features that made it worse (“aggravating factors”) or not as bad (“mitigating factors”) than it would otherwise have been.

After setting this starting point, the judge will then turn to you, your current situation and any criminal record you have. The judge will apply “uplifts” (increases) for any aggravating factors relating to you, and “discounts” (reductions) for mitigating factors relating to you.

For example:

  • An assault involving several punches to the head might mean a starting-point sentence of around 100 hours community work. In setting this, the judge will have taken into account aggravating factors relating to what happened (for example, if the other person was smaller and younger than you) and any mitigating factors (for example, that you were provoked).
  • If you have a record, particularly for the same type of offending, you’ll usually get an “uplift” for this as an aggravating factor. So in this assault example, this could take the sentence to a short prison term of two to three months.
  • But then you may get “discounts” for mitigating factors, like cooperating with the police, pleading guilty, and saying sorry (“expressing remorse”). In the above example, those discounts might cancel out the aggravating “uplift” so that the final sentence is roughly the same as the starting point of 100 hours community work.

How much will my sentence be reduced if I plead guilty?

Sentencing Act 2002, s 9(2)(b); Case: [2010] NZSC 135

In general, the earlier you plead guilty, the greater the reduction (“discount”) you’re likely to get for pleading guilty. However, other factors in your particular case will be taken into account too, such as how much you’ve admitted responsibility for the offending and shown that you’re sorry.

The maximum discount you’ll be able to get for a guilty plea will be 25%.

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