Abstract:
In the last five decades, New Zealand has seen a substantial increase in the number of sexual offence cases sentenced to indefinite terms of preventive detention – a punishment that leaves release dates up to the discretion of the parole board rather than set at the time of sentencing. The purpose of this sentence is protective rather than punitive and is based on ideas of risk rather than just deserts. Although the actual sentence of preventive detention was introduced into legislation in 1954, the fundamental aspects of its central tenet — risk — remain underdeveloped and unsolidified. The opposing, and oftentimes incompatible ideas and beliefs about risk form a “penal pluralism of risk”—a situation where no single discursive formation dominates a field, and so equally accepted discursive formations coexist. This thesis explores how the penal pluralism of risk impacts the practical application of risk logics in the criminal justice system, critically analysing the discourses within sentencing remarks from 116 cases considered for preventive detention over the last decade. This research found that the penal pluralism of risk, which judges engage with both consciously and unconsciously, is reflected in sentencing decisions regarding preventive detention, resulting in confused and inconsistent sentencing outcomes. Despite the presence of the penal pluralism of risk in these cases, preventive detention as a sentencing tool is still presented as an uncontested and common-sense response to sexual offending. The application of this sentence in the context of a pluralistic understanding of risk is legitimised and sanctioned by neoliberal logics which have little regard for the economic, social or individual ramifications of the sentence. As a result, the entrenched systemic causes of sexual offending remain unaddressed.