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just deserts (offending behaviour is more reprehensible, and deserving of greater censure, if it happens
persistently)
individual deterrence (the persistent offender needs a stronger deterrent)
incapacitation (society must be protected from the persistent offender).
6. Sentencing of Persistent
Offenders
6.1. Definition of Persistent Offenders
6.2. Approaches to the Sentencing of Persistent Offenders
6.3. Sentencing of Persistent Offenders in New Zealand
6.3.1. New Zealand case law
6.4. How Some Overseas Jurisdictions Deal with Previous Offending
6.4.1. 'Three strikes and you're out'
6.5. Summary
6.1 Definition of Persistent Offenders
Repeated offending presents a particular set of theoretical and practical difficulties to sentencers and sentencing
policy makers alike. Some of these difficulties arise from the various types of recidivism. Some recidivists, such as
those who repeatedly commit burglaries, can almost be viewed as career criminals. Some will repeatedly offend as a
by-product of social deprivation or deeply grounded personal difficulties. Some will be mentally disturbed, while others
will keep returning to court because of associations they have formed.
A second issue is the various types of repeat offending, ranging from minor traffic infringements to violent offending.
Current New Zealand sentencing policy as embodied in the Criminal Justice Act 1985 is based on a perception that
those who commit repeat serious violent and sexual offences and are assessed as having a propensity to commit
further offences of this type constitute a distinct category, because of the extreme harmfulness of their offending. For
this reason, the sentencing of offenders defined as dangerous is dealt with separately, in Chapter Seven, although
this categorisation is not without its critics (see Brown and Cameron 1995; Brown 1996).
This separation of persistent non-violent offenders from repeat serious violent and sexual offenders is consistent with
the changes in the concept of dangerousness over time as discussed by John Pratt (1995). Late last century and
until the middle years of this century, dangerousness was associated with habitual and professional offending,
usually involving offences against property. After this time, violent and sexual offenders were more explicitly added to
the targeted categories, and from the 1970s onwards the focus moved increasingly towards this latter category, until
it became the sole focus of protective sentencing measures.
In most jurisdictions, persistent offenders are sentenced more severely than first offenders. Such sentencing can be
linked to one of the following rationales:
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Mitigation for the first offender can be linked to a rehabilitative rationale (providing the opportunity for self-
rehabilitation).
This chapter outlines various approaches to the sentencing of persistent offenders.
6.2 Approaches to the Sentencing of Persistent Offenders
Ashworth has delineated three approaches to sentencing persistent offenders (Ashworth 1992, pp143-50). The first is
simply to ignore an offender's previous record and sentence him or her solely on the current offence(s). The rationale
behind this approach is that repeat offenders have already incurred punishment for their earlier offences, and to take
them into account at a later date is to punish them twice for those offences. Put another way, the offender's
culpability for the current offence(s) is made no more or less by previous behaviour. To be consistent, this approach
has no provision for viewing the absence of a criminal record as a mitigating factor in the sentencing process. Many
jurisdictions use this approach in respect of minor traffic and other offending through the use of set infringement fees.
A second approach is founded on the premises that a first offender should receive a discounted sentence; second
and subsequent convictions should result in a progressive loss of this mitigation; and the seriousness of the current
offence sets the ceiling beyond which the sentence cannot go, no matter how extensive the previous record. The first
premise indicates tolerance for human frailty; treating the offence as 'out of character'. It relates to the just deserts
view of sentencing as censure (see 3.1.1); treating people as capable of responding positively to that censure. Repeat
offending gradually erodes this tolerance. Questions arise as to whether the first offender mitigation can apply to more
serious offences, and how quickly the mitigation may be lost. In response to the former, it could be argued that
tolerance of human weakness is more justifiable for minor offending and offences which do not demonstrate a high
degree of deliberation. For the latter, one method would be to apply considerations of seriousness, frequency and
similarity of previous offending, with mitigation lost more quickly when previous offending shows a 'settled
determination to break the law'.
The third approach is the cumulative principle, whereby sentences become progressively more severe with each new
offence. This is normally justified on the grounds that society needs to be protected from persistent offenders
(incapacitation), and that ever increasing penalties will deter an offender (individual deterrence). These grounds take
precedence over the principle that offenders should be sentenced in proportion to the gravity of the current offence(s).
This approach is normally associated with extensive use of imprisonment, as repeat offending causes offenders to
escalate up the penalty scale.
The main difference between the cumulative principle and progressive loss of mitigation is that in the latter the
seriousness of the current offence provides a definite ceiling. The difference in practice will depend on how firmly such
proportionate ceilings are established.
One version of the cumulative principle would be to confine it to the repetition of the same type of offending, where
this is taken to indicate a definite pattern of behaviour, in particular, 'the professional' offender. The difficulty is in
defining the previous offending in such terms as to exclude petty persistent offenders (Ashworth 1992, pp154-7). Such
provisions run the danger of replicating the pitfalls of persistent offender legislation in the past. These are clearly
illustrated by the Secretary for Justice's 1964-65 Annual Report to parliament, where with reference to preventive
detention, he commented that:
though designed mainly to remove persistent and dangerous offenders from the community for a long indeterminate
period, the sentence has been applied to many who are merely irresponsible and inadequate, and its aptness in
these cases is doubtful.
(quoted in Webb 1982, p73)
Aside from attempts to protect the public from the professional burglar or car thief, the question arises whether the
cumulative principle may be relevant to hate offences (directed against particular races or other identifiable groups of
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people), or to the person who stalks a former partner or other 'selected' victim. The individual offences may in
themselves be minor, but the pattern of previous offending could be considered an aggravating factor, as it suggests
greater culpability on the part of the offender and greater harm to the victims, especially in terms of the fear created.
In such cases, the issue may also be one of prediction of dangerousness, the issues surrounding which are
discussed in Chapter Seven.
The deterrence rationale for cumulative sentencing would seem to have little justification given the lack of strong
evidence that increases in sentence level increase deterrent effects (see 3.2.3). Cumulative sentencing on the basis
of incapacitation is also questionable because of the lack of certainty in predictions of future offending, and in relation
to non-serious offending the costs of the incapacitation are likely to far outweigh the costs of the offending itself. It is
for this reason that the discussion of incapacitation suggests that the risks of false confinement should be limited by
using incapacitative sentences only for the relatively few offenders who are assessed as constituting a grave danger
to society or to certain individuals (see 3.3.6).
6.3 Sentencing of Persistent Offenders in New Zealand
The shift away from protective sentencing for persistent offenders irrespective of offence type is illustrated by the
history of the sentence of preventive detention in New Zealand. The sentence was introduced in the Criminal Justice
Act 1954; replacing the habitual criminal and offender declarations in the Habitual Criminals and Offenders Act 1906.
(These provisions had allowed judges to impose an indeterminate reformative sentence of detention following a finite
prison term: Webb 1982, pp19-25.) Preventive detention was originally available for a mix of three types of offender:
repeat minor offenders; repeat middle range offenders; and sexual offenders against children who had at least one
previous similar conviction. Offenders had to be twenty-five years or older, and only convictions since the age of
seventeen were counted. The number of previous offences and prison sentences required for eligibility decreased with
the seriousness of the past and current offending. The court had to be satisfied that it was expedient for the
protection of the public that the offender should be detained in custody for a substantial period. (This same criterion
applies currently to the sentence.)
In 1967 preventive detention was abolished except for persons qualifying by reason of sexual offending. (In 1961 the
category of child sexual offending had been broadened to include all sexual offending.) One of the reasons the
Minister of Justice cited for this change was the inappropriateness of preventive detention for offenders whose record,
though long, did not make them a menace to society. (The other reasons related to the stresses associated with an
indeterminate sentence, and the difficulty of deciding when release would be justified. (Webb 1982, p74.) Since that
time, the focus of the sentence has been on violent and sexual offenders seen as likely to pose further serious harm
(see 3.3.2).
6.3.1 New Zealand case law
In New Zealand case law there are two distinct yet related concepts regarding previous offending. New Zealand courts
have clearly considered the absence of a criminal record as a mitigating factor, particularly where the person can
demonstrate living in the community for many years with a 'blameless record', thus justifying a reduction in sentence.
There are two sorts of reasons suggested for this approach. One is that persons who have not previously offended
may be acting 'out of character' and that such people have built up credit (by establishing good character) which
reduces their blameworthiness for offending. It follows that as convictions accumulate the credit diminishes. Where
there has been earlier offending, credit may still be given (is built up again) for a subsequent significant period of law-
abiding behaviour by way of reducing the effect of those previous convictions. The second is that someone offending
for the first time may not have been fully aware of the seriousness of what they were doing, and is unlikely to infringe
again in the same way if given a second chance in the form of a lesser sentence.
The converse of the above is that New Zealand courts deal with previous offending as a potentially aggravating factor
at sentencing. In so doing, the courts have been careful to stipulate that this should not amount to punishing the
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where there was a current offence of assault involving a black victim, and a history of racially motivated offences
would help the court realise that the current offence was likely to be similarly motivated
where the offender had a history of targeting particularly vulnerable victims such as old or disabled people which
was again the case with the current offence
where a history of previous convictions (e.g. selling unhygienic food) would lead the court to conclude that the
current offence arose from a deliberate disregard for a particular law rather than being the outcome of mere
negligence or oversight (NACRO 1992, pp4-5).
offender again for previous convictions, and that the sentence must remain in proportion to the seriousness of the
current offence(s). The Court of Appeal has stated that previous convictions may be taken into consideration in
determining the character of the offender, as part of the process of fixing the sentence for a particular offence
committed by a person of that character. Previous offending has also been held to be relevant to determining how
offenders may respond to a particular sentence.
Previous offending is an aggravating factor where it shows a "settled determination to break the law" , and where
previous convictions of the same type indicate a predilection for that type of offence. An incapacitative or deterrent
sentence has been seen as appropriate where there are second and subsequent offences against the same victim,
and sentences may be increased for deterrent purposes when repeat offending is taken to indicate that previous
sentences were ineffective. Similarly, repeat offending after an earlier lesser sentence may be viewed as the offender's
failure to appreciate that leniency as an incentive to rehabilitation, and a number of previous convictions may escalate
the sentence on the basis that anything but imprisonment will be ineffective. This is tempered by the consideration
that where an offender has previous convictions for offences similar to the one before the court, the court should
refrain from imposing a sentence markedly different from those imposed for the earlier offences. The Court of Appeal
has held that previous offences of a more serious nature than the current offence(s) should not lead to a
disproportionate current sentence. (See Hall 1993-97, B/177, B/191-B/199-2 for a detailed discussion of the case law;
and Hesketh and Young 1994, pp52-3, 58-9.)
6.4 How Some Overseas Jurisdictions Deal with Previous Offending
In jurisdictions where aggravating and mitigating factors are specified in legislation or guidelines, there is also
guidance as to the application of previous convictions. Sweden has a general principle of using imprisonment
sparingly but, in considering whether imprisonment is appropriate, the court may take account of previous criminality.
In so doing, the court is directed to consider the extent of the previous offending, the time elapsed between offending;
the similarity between past and previous offending, and the seriousness of past and present offending. In Finland,
previous offending counts as aggravating if it is similar to the current offence(s), or if it shows a particular disregard for
the law.
As discussed in Chapter Eleven, the American guideline systems incorporate a "criminal history score", with higher
scores leading to longer sentences. In some of these systems, the score is arrived at both through the number of
previous convictions and the seriousness weighting of the applicable offences (see 11.4).
The United Kingdom Criminal Justice Act 1991 (prior to amendments made in 1993) provided at s29 that the
offender's previous convictions or his or her response to previous sentences should not increase the seriousness of
the current offence (in effect setting the ceiling at the seriousness of the current offence); but that the circumstances
of previous offences may be relevant in assessing the seriousness of the current offence(s) if those circumstances
shed light on ("disclosed") aggravating features of the current offence(s). This latter point created an exception to the
previous point in allowing the ceiling to be exceeded for 'professional', as opposed to opportunist, offending. Other
examples where it was seen as applicable were:
"Other offences" included both previous convictions and offences of which the offender was convicted on the same
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three times the term otherwise provided as the punishment for the current conviction
twenty-five years
the term determined by the court under particular sentencing laws, including any applicable sentence
enhancements.
suspension of sentence or judgment
stay of execution of sentence
commitment to the State Department of Health as a mentally disordered sex offender
commitment to the Californian rehabilitation centre or any other facility whose function is rehabilitative diversion
from the state prison.
occasion as the current offence. Amendments to the Act in 1993 substituted a new s29 which removed the
limitations on the relevance of previous convictions by providing that "in considering the seriousness of the offence,
the court may take into account any previous convictions of the offender". That part of s29 allowing the
"circumstances" of previous offences to be taken into account was repealed. There is therefore now nothing in the
new s29 specifically enabling the court to take into account the circumstances of previous offences, as opposed to
the mere fact of conviction. On a common sense interpretation the courts could be expected to consider the available
information about the facts of previous offences in order to assess the relevance of those offences to the current
offence, but the situation may not be as clear cut as that (Ashworth and Gibson 1994, p104).
6.4.1 'Three strikes and you're out'
Recent legislative initiatives in the United States indicate a return to the concept of protective sentencing on the basis
of repeat offending, rather than on the assessment of future risk of causing severe harm, as is discussed in Chapter
Seven. In 1993 and 1994 Washington and California enacted laws which require a person who has committed serious
offences on three occasions to be sentenced severely for the third offence. This is commonly called "three strikes
and you're out". The Washington Persistent Offender Accountability Act requires that a third serious offence receive a
sentence of life imprisonment without parole, or a death sentence if the crime is one of aggravated murder in the first
degree. The purpose of sentencing three-time serious offenders to life is expressed as improving public safety,
reducing the number of serious repeat offenders at large, setting proper and simple sentencing practices that both
victims and persistent offenders can understand, and restoring public confidence in the criminal justice system. The
Act provides that offences such as drunk driving, promoting prostitution, and petty theft are deemed sufficient to
qualify an offender for a mandatory life sentence. As such it appears to return to the previous association of
persistence with dangerousness, irrespective of offence seriousness.
Under the Californian Penal Code, a convicted offender who has two or more previous convictions for defined offences
will be sentenced to a minimum term of imprisonment for whichever is the greater of:
The term of imprisonment must not be merged with any other term of imprisonment imposed, but must be served in
addition to it. A prior conviction must not be discounted by the judge by reason only of:
The Californian law also provides for a doubling of the prison sentence for a second strike.
These provisions of the code are entrenched and cannot be amended except by a statute passed in each house by
two-thirds of the members or by a statute approved by the electors.
At least twenty-two states now have some version of the three strikes law. In addition federal crimes are subject to a
three strikes law due to enactment of federal legislation in 1994. Variations from state to state (other than those
relating to lengths of imprisonment and the possibility of parole) mainly relate to whether or not the term imposed on
the repeat offender is mandatory (with some such as Connecticut, Indiana, Kansas, and Maryland retaining a degree
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of judicial discretion), and the number and types of felony offences to which the legislation applies (Dickey 1996,
appendix). With the exception of California, these laws have been infrequently used, either because they have been
drafted very narrowly or because prosecutors have had little recourse to them owing to other severe sanctions in
place. In June 1996 the California Supreme Court in the case of People v Romero ruled, in respect of that state's
three strikes legislation, that judges who consider a mandatory twenty-five years-to-life sentence to be too harsh may
impose a lighter sentence. Six of the seven justices of the Supreme Court also held that the mandatory nature of the
three strikes measure violated the clause in the state constitution setting out the separation of legislative and judicial
powers. The decision followed a number of widely publicised cases in which Superior Court judges in California
refused to comply with the law when it came to giving a life sentence for a non-violent felony like burglary or drug
possession. In some cases juries pleaded with judges to reduce third felony charges to misdemeanours or disregard
prior convictions in order to circumvent the mandatory three-strikes sentence. The law does give prosecutors the
power to ask a judge to disregard a previous strike "in the furtherance of justice" and impose a lesser sentence than
the "mandatory" one, but is silent on whether judges can take such action on their own volition, an omission that had
brought several conflicting rulings by state appellate courts. The Romero case involved a third-time offender who
pleaded guilty to possessing 0.13 grams of cocaine and whose previous 'strikes' involved residential burglary and
attempted residential burglary. The Superior Court Judge ruled that twenty-five years imprisonment would be cruel and
unusual punishment and sentenced Romero to six years. A Court of Appeals overruled that sentence and the defence
lawyers appealed to the Supreme Court (Guardian Weekly, 30 June 1996).
6.5 Summary
1. Sentencing guidance needs to be clear about how previous offending, or the lack of it, should influence the level of
sentence.
2. Neither deterrence nor incapacitation provide a sound rationale for cumulative sentencing of offenders purely on the
basis of persistence. Previous offending may, however, increase the culpability of the offender and harmfulness of the
offending and thus act as an aggravating factor to increase the sentence.
3. Principles and issues for consideration in respect of the treatment of past offending are:
(a) Whether the seriousness of the current offence should always provide the upper limit for the current sentence, or
whether circumstances can be defined when previous offending may take the sentence beyond this because it
indicates a particular pattern of behaviour for which incapacitative sentencing is desirable, e.g. professional offending,
hate crimes, stalking?
(b) Whether there should be mitigation of sentence and a presumption against imprisonment for first-time offenders,
except when the offending is seriously harmful?
(c) Whether there are circumstances in which significant convictions-free periods should negate or reduce the effect
of previous convictions?
(d) Whether previous similar offences should be given more weight than previous dissimilar ones?
(e) Whether previous serious offences should be given more weight than previous minor ones?

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