Washington International Law Journal


Joanna Hess


New Zealand’s 2002 Sentencing Act provides several ways a sentencing court may take an offender’s cultural or ethnic background into account. Given the disproportionate rate of recidivism among New Zealand’s indigenous Maori offenders and international and domestic concerns regarding this problem, the Act’s provisions offer one method for addressing and mitigating this issue. However, these sentencing provisions remain largely unknown or underused. This comment argues that in order to tackle these concerns, left unaddressed by the current Sentencing Act, New Zealand should restructure its sentencing provisions to follow the legislative model that is developing in Australian states, particularly the model in Victoria, which has specifically created indigenous sentencing courts as a separate division of their local court system. In fact, New Zealand should go one step further than the current Australian legislation establishing an independent indigenous court system by requiring judges (or magistrates) to allow Maori offenders to be sentenced in an indigenous sentencing court whenever they so request. New Zealand would benefit from adoption of a specific legislative framework implementing aspects of the indigenous sentencing courts found in Australia. In doing so, New Zealand would address criticism surrounding treatment of Maori offenders within New Zealand’s criminal justice system and the underuse of the current sentencing provisions that allow judges to consider an offender’s cultural background.

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