Before prison: The criminal court process
How will the judge decide my sentence?
Sentencing Act 2002, ss 8-10, 26, 26A
The sentence you’re given – including whether you’re sentenced to prison or given a community-based sentence – will depend on many things. Factors the sentencing judge will take into account include:
- how serious the charge is
- the summary of facts prepared by the prosecution (the police or Crown Law Office)
- whether you pleaded guilty or not guilty
- whether you’ve been through a restorative justice process
- reports prepared by probation officers about you (a “stand-down report” or a full “pre-sentence report”), stating what sentence the probation service recommends, including whether there’s a programme you should complete while in prison
- any letters of support or references from your whānau, friends or employers
- the victim’s views
- any written apology you’ve given the court saying you’re sorry for the harm you caused and explaining what you’ve learned through the experience.
Before you go to court for sentencing you should talk carefully to your lawyer about the likely sentence options.
Meth sentencing now considers individual circumstance
Due to a Court of Appeal decision, there has been a change in the way sentences to do with methamphetamine are determined (also known as ‘meth sentencing’).
There is now more flexibility to recognise individual circumstances and factors that led to the possession of meth. Circumstances include addiction issues and poverty, including poverty that stems from colonisation (e.g. loss of land, language, culture, rangatiratanga, mana and dignity). These circumstances can justify a lesser sentence of up to 30% and sentencing may include rehabilitative treatment. The previous “band” system, which had strict sentencing limits depending on the amount of meth involved, has been updated to allow greater flexibility for these individual circumstances.
If you were sentenced prior to the judgment (21 October 2019), these new sentencing guidelines can apply as long as you have filed an appeal before 21 October 2019.
What sentences could I be given?
Sentencing Act 2002, ss 10A – 18, Part 2
As well as being sentenced to prison, you could also be given one of the following additional sentences:
- Reparation – this means paying money to the victim to compensate them.
- Fines – paying money to the government as a penalty.
- Supervision – when you’re supervised by a probation officer for a period after you’re released from your prison sentence. This could be from six months to one year. Supervision is aimed at giving people extra support to make sure they don’t re-offend. You may be required to attend rehabilitation programmes.
- Intensive supervision – when you’re supervised by a probation officer for a longer period, from one to two years. You’ll have to report to the probation officer more often than under standard supervision, and you may also be required to attend rehabilitation programmes.
If you’re not sentenced to prison, you may be sentenced to one of the following instead:
- Home detention – this is a community-based sentence where you wear an electronic bracelet around your ankle and must stay at the home detention address at all times. You’ll be allowed out for things like appointments with probation officers, and you might also be allowed out to work, but every absence from home has to be pre-approved by the Department of Corrections. You can be sentenced to home detention for up to 12 months. The minimum sentence is 14 days.
- Community detention – this is another electronically monitored sentence, where you have to stay at your home address at certain times, up to 84 hours a week. There’s no minimum period, but the maximum is six months.
- Community work – when you’re required to go to a probation office at least once a week and do community work as directed. There are two types of community work:
- Standard community work: where you go out to work in a group, perhaps gardening or collecting rubbish.
- Agency community work: where you do voluntary work as an individual – perhaps at a kōhanga reo or a church. The probation service will decide what kind of community work you’ll have to do. If you’re young and it’s your first community work sentence, and you have a good proposal for agency voluntary work, you may be able to do agency work. Community work is based on the old “PD” (“periodic detention”). Community Work can be a minimum of 40 hours and a maximum of 400 hours.
If it’s a case of family violence, the police can also apply to the courts for a domestic violence protection order on the behalf of the victim of the offence.