Report on Mandatory Sentences - Law Reform Commission

circumstances parole’ under the Corrective Services Act 2006). 94 In South Australia, the court must set a
standard non-parole period of 20 years when it imposes a life sentence for murder. 95 The court may
decline to set a non-parole period if, having regard to the gravity of the offence, the criminal record and
behaviour of the offender, and any other circumstances, it considers that it would be inappropriate. In
Western Australia, the court must set a standard non-parole period of 10 years where the offender has
been sentenced to life imprisonment for murder. 96
(6) New Zealand
3.40 In New Zealand, section 102 of the Sentencing Act 2002 provides that life imprisonment is the
presumptive penalty for murder. Thus, a person convicted of murder must be sentenced to life
imprisonment unless the circumstances of the offence and the offender would render such a sentence
“manifestly unjust”. 97 Section 86E(2) of the 2002 Act provides that the court must impose a life sentence
where the murder is a stage-2 or stage-3 offence 98 and must order that the life sentence be served
without parole unless the circumstances of the offence and the offender would render such a sentence
“manifestly unjust”.
3.41 Section 84 of the Parole Act 2002 provides that offenders serving life sentences will become
eligible for parole once they have served 10 years’ imprisonment, unless the sentencing court has
ordered a “non-parole period”. 99 If a non-parole period has been ordered, offenders become eligible for
parole once they have served that period. Section 60 of the Parole Act 2002 provides that an application
may be made to the Parole Board to recall an offender who is on parole or compassionate release. This
may be done where the offender poses “an undue risk” to the community, has breached a condition of
release or has committed an offence punishable by imprisonment. 100 In addition to parole, section 41 of
the Parole Act 2002 provides that the Parole Board may grant compassionate release to any prisoner
who has just given birth or is seriously ill and unlikely to recover. 101
(7) United States of America
3.42 In the United States of America, the majority of states have retained the death penalty for either
first degree murder or “capital murder”. All of these states require the jury to find that any mitigating
factors are outweighed by certain aggravating factors. 102 In the event that this is not the case or, indeed,
the death penalty is not sought by the prosecution, these states provide for less severe sanctions such as
life imprisonment with or without parole. The few remaining states have abolished the death penalty and
instead require the imposition of determinate sentences or life sentences with or without parole. 103
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95
96
97
98
99
100
101
102
103
Section 305(4) of the Criminal Code, as inserted by section 3 of the Criminal Law Amendment Act 2012.
Section 32 of the Criminal Law (Sentencing) Act 1988 (SA).
Section 90 of the Sentencing Act 1995 (WA), as amended by section 19 of the Criminal Law Amendment
(Homicide) Act 2008.
Section 102(1) of the Sentencing Act 2002.
See: section 86A to section 86I of the Sentencing Act 2002 regarding the classification of offences as “stage-
1”, “stage-2” and “stage-3” offences; the recording of judicial warnings; and the additional consequences for
repeat serious violent offending.
Section 84 of the Parole Act 2002 regarding “non-parole periods”.
Section 61 of the Parole Act 2002.
Section 41(1) of the Parole Act 2002.
Finkelstein “<strong>Report</strong> on Basic Aspects of the Law of Murder in the United States: The Examples of California
and New York” in The Law of Murder: Overseas Comparative Studies (Law Commission, 2005) at 107.
Alaska (1957); Connecticut (2012); Hawaii (1957); Illinois (2011); Iowa (1965); Maine (1887); Massachusetts
(1984); Michigan (1846); Minnesota (1911); New Jersey (2007); New Mexico (2009); New York (2007); North
Dakota (1973); Rhode Island (1984); Vermont (1964); West Virginia (1965); Wisconsin (1853); and District of
Columbia (1981). See: the website of The Death Penalty Information Center, www.deathpenaltyinfo.org;
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