dc.contributor.advisor |
Tolmie, J |
en |
dc.contributor.author |
Conder, Timothy |
en |
dc.date.accessioned |
2018-07-12T00:04:41Z |
en |
dc.date.issued |
2018 |
en |
dc.identifier.uri |
http://hdl.handle.net/2292/37443 |
en |
dc.description |
Full Text is available to authenticated members of The University of Auckland only. |
en |
dc.description.abstract |
In New Zealand, it is generally assumed that it is the role of Parliament to define crimes; it is the role of the jury to decide whether they have been proved; and it is the role of the judges to decide what penalty should be applied to the particular crime. The crime of murder has long represented an exception to this rule. Historically, penalties for murder have been mandatory and it is the Legislature and the Executive who have held the power to control the effective lengths of sentences. However, since 1993 the role of the Courts in murder sentencing has gradually increased, with Courts now holding a large amount of power not only in terms of what sentence to impose, but also what category a particular crime should fall within. Under the Sentencing Act 2002 regime, Parliament has established four categories of murders which each have a different sentencing band ranging from sentences less than life imprisonment up to (since 2010) sentence of life without parole. This regime, which combines the key features of a ‘degrees of murder’ scheme with a fully discretionary effectively gives sentencing courts the power which would otherwise be exercised by the jury to determine the relevant offence in particular cases. While the courts hold discretion to sentence within these bands, it was the intention of Parliament that the courts would apply the four categories as originally designed. Between 2002 and the first second-strike murder case in 2014, the courts had largely upheld this scheme. The categories provided by Parliament had been subject to reinterpretation in some cases by the courts but these were limited and the broad categories were still enforced in most cases. However, since the Three-Strikes Law was passed in 2010 and the first case under it decided in 2014, all six cases which qualified for a sentence of life without parole have received a lesser sentence. This pattern of sentencing demonstrates that the courts have not upheld this law but have sought to redefine the legislative categories to correspond to the judicial expectation of what is appropriate. This is an extension, but a much more significant one, of the earlier pattern and one which calls for reform. In reforming the murder system, Parliament can either forgo the power to set categories in the case of murder, or it can reinforce this power by handing the decision around categorisation making power to a body other than the judiciary. This paper argues that the latter option is preferable and that the jury should be reintroduced into this process to make the determination about the appropriate category for particular cases. This will result in a clearer process, one which is more likely to be acceptable to the public at large and one which will allow for community representation in one of the most important decisions about what is widely acknowledged as the most serious crime. |
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dc.publisher |
ResearchSpace@Auckland |
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dc.relation.ispartof |
Masters Thesis - University of Auckland |
en |
dc.relation.isreferencedby |
UoA99265111109902091 |
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dc.rights |
Items in ResearchSpace are protected by copyright, with all rights reserved, unless otherwise indicated. Previously published items are made available in accordance with the copyright policy of the publisher. |
en |
dc.rights |
Restricted Item. Full Text is available to authenticated members of The University of Auckland only. |
en |
dc.rights.uri |
https://researchspace.auckland.ac.nz/docs/uoa-docs/rights.htm |
en |
dc.rights.uri |
http://creativecommons.org/licenses/by-nc-sa/3.0/nz/ |
en |
dc.title |
Revising Justice: Judicial Influence in the New Zealand Murder Sentencing Regime |
en |
dc.type |
Thesis |
en |
thesis.degree.discipline |
Law |
en |
thesis.degree.grantor |
The University of Auckland |
en |
thesis.degree.level |
Masters |
en |
dc.rights.holder |
Copyright: The author |
en |
pubs.elements-id |
747668 |
en |
pubs.record-created-at-source-date |
2018-07-12 |
en |
dc.identifier.wikidata |
Q112936006 |
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