Chapter 4
Determining harm and culpability

Comparing the provisional ranking with current maximum penalties and sentencing practice

4.44Our provisional ranking was only the starting point for determining where offences should sit relative to each other. In recognition of the necessarily blunt nature of our scoring tool, we needed to consider the outcome of its application in the light of existing statutory maxima and recent sentencing practice. We envisaged that these comparisons would require adjustments to be made to the provisional ranked list.

4.45If one of the reasons for undertaking a review of maximum penalties is because they may be outdated and inconsistent, it may seem incongruous to take into account existing maxima and current sentencing practice that stems from those maxima, when considering offence seriousness. Such concerns are not without merit. To rely too much on current maxima and sentencing practice would risk repeating some of the anomalies that already exist in the maximum penalties regime.

4.46However, current maximum penalties do represent, at least in theory, the legislature's view of the relative seriousness of the prohibited conduct at the time of their enactment. Any obvious discrepancies between those penalties and our provisional ranking therefore required review as a check on the way in which we had scored those offences. Similarly, to the extent that recent sentences reflect the worst class of case and indicate judicial views of relative seriousness, they provide an additional check on our scoring.

4.47It transpired that we were able to make relatively little use of data on current sentencing practice. We had intended that, drawing on data made available to the Sentencing Establishment Unit within the Law Commission, two forms of sentencing data would be collated:

4.48In the event, however, we identified a number of difficulties in making use of this data.

4.49First and most obviously, since the Sentencing Act 2002 requires that the maximum penalty be reserved for the worst class of case, it might be expected that sentencing practice would reflect that penalty, whether or not it is correctly set. The fact that sentences close to the current maximum are sometimes imposed is therefore not enough to conclude that it is appropriate.

4.50Secondly, because almost all sentences below the maximum either do not represent the worst class of case in terms of offence seriousness or have significant mitigating factors relating to the offender, limited weight can be placed upon them in determining the harm score for maximum penalty purposes. The absence of any sentences at or near the maximum may be a function of the low frequency of worst class cases, since the frequency will vary from one offence to another.

4.51Thirdly, a proper assessment of current sentencing practice against the maximum needs to take into account the deduction for a guilty plea (present in more than 80 per cent of sentencing decisions) which may amount to as much as 25 per cent.28 Thus the fact that the worst class of case does not receive the maximum does not necessarily indicate that there is anything wrong with the maximum, since the judge’s starting point may well have been the maximum.

4.52Fourthly, the worst class of case of some serious offences (particularly sex offences) results in the imposition of the indeterminate sentence of preventive detention, so that the use of finite sentences cannot readily be positioned against the determinate maximum sentence.

4.53It follows that current judicial sentencing practice is of limited utility in identifying anomalies in current maximum penalties. It is useful in that respect primarily when there is a substantial gap between the most severe sentence recently imposed for an offence and the maximum penalty provided for it (potentially indicating a judicial view that the maximum is too high), or there is a clustering of sentences near to the maximum (potentially indicating a judicial view that the maximum is too low). Some examples of the former can be identified, and we discuss those later (see below at paragraphs 6.31-6.36).

4.54However, the comparison between our provisional ranking and current maximum penalties did lead to some adjustments in our ranking.

4.55First, we determined that our score for murder, which in the worst class of case would involve multiple victims, under-weighted the harm to the relevant interests and did not sufficiently recognise the overriding value of the sanctity of life. We adjusted it to have the highest ranking, consistent with the current maximum penalty. For the same reason, we adjusted the ranking of manslaughter (s 177 of the Crimes Act), killing an unborn child (s 182), failure to protect a child or vulnerable adult (s 195A), and homicide as part of a suicide pact (s 180(1)).

4.56Secondly, as noted above at paragraph 3.57, the offences of attempted sexual violation and assault with intent to commit sexual violation did not lend themselves to scoring on the usual attempt rules because, in the worst class of case, they may well inflict on the victim almost all of the harm that results from a completed offence of sexual violation. Even though we took this into account in scoring these offences, we found that our scores did not adequately reflect the reality of the conduct and instead ranked the offences as equivalent to, for example, injuring with intent to cause grievous bodily harm. We adjusted the ranking so that the offences were placed alongside offences such as robbery and dealing in Class A drugs.

28Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.