Manifest injustice? The judiciary as moderator of penal excess in the sentencing of youth for murder

Abstract

A principled approach to the sentencing of young people requires recognition of their particular mitigating characteristics, including brain development. Contemporary approaches to the sentencing of murder involve mandatory or presumptive sentencing. Legislative allowance for judicial discretion has been suggested as a counterbalance to the punitive effect on young offenders. This article uses New Zealand as a case study to consider whether, and how, judges would exercise a ‘safety valve’ discretionary provision for young offenders. Judges acted (at least in part) to moderate penal excess in the imposition of long minimum periods of imprisonment (MPIs), but it seems that a discretionary sentencing provision of itself will not ensure proportionate and humane sentences for this category of offender. This lends support to the idea that appropriate legislative caps and a requirement of demonstrated risk to public safety for a sentence of imprisonment may be a better avenue for ensuring proportionality.