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NZ Crown Prosecutors more assertive at sentencing, research indicates

20 June 2018

Research into the Crown Prosecutor's role at the sentencing stage of the criminal justice process suggests that New Zealand's regime permits Crown Prosecutors a more assertive role in sentencing than is permitted in England and Australia.

The research, by Crown Prosecutor and Luke Cunningham Clere senior associate Andrew Britton, has been published online in the Criminal Law Forum ("Pressing for Sentence? An Examination of the New Zealand Crown Prosecutor's Role in Sentencing").

It is the first time the New Zealand Crown Prosecutor’s role at the sentencing stage of the criminal justice process has been empirically examined, and the research therefore deepens current understanding of the role.  Mr Britton says he hopes it will inspire further detailed enquiry and better practices in the future.  

Information sources

The research relies on data obtained and analysed from interviews conducted with a non-representative sample of ten Crown Prosecutors from around New Zealand between 2015 and 2016; some participants were Crown Solicitors.  Of the sample, six participants were female and four were male with career durations ranged from 10 months to 37 years.

The participants’ views suggest, in practice, that New Zealand’s regime goes further than is prescribed in law and policy documents, permitting Crown Prosecutors a more assertive role in sentencing than exists in the English and Australian regimes.  

In particular, New Zealand’s regime appears to allow Crown Prosecutors to recommend finite sentences as a matter of office-policy or individual practice.  

Further, the participants’ views illustrate for the first time how Crown Prosecutors in New Zealand may be affected by the current managerial and populist environment.  

Such pressures are seen to create marked frustration, strain, and concern in prosecutorial decision-making.  They also inspire entrepreneurial solutions to those aspects of the regime that are perceived as deficient.

Potential for unjust outcomes

Changes to the Criminal Procedure Act 2011 and the Crown Solicitor Network funding model in particular suggest the potential for unjust sentencing outcomes may have increased, with anecdotal evidence of incentivised ‘‘plea-bargaining’’.  

However, Mr Britton cautions that more large-scale and representative empirical research is needed to determine the extent of any such practices, their connection to the current funding model, and their effect on sentencing outcomes.  

Mr Britton says the participants’ views do, however, make plain how the opinions and presence of stakeholders – like sentencing judges, defence counsel, victims, the Police, the media, and pressure groups – may influence decisions and practices at both office and individual levels.  

Justice may be reactive, forward-looking, or negotiated depending on the mix of individuals involved, with participants greatly influenced by their office-type, location and hierarchy, and any mentoring and oversight they had received.

Research assistance

Mr Britton's research is available open access due to the support of funding from the University of Cambridge.

Last updated on the 16th September 2019