Claims criminals aren’t being treated harshly enough by the courts have led to a number of policies around sentencing. In the third and final part of Newsroom’s series on law and order during this election experts give their views on plans to shake up sentencing, rights of victims and policies on rehabilitation
Proponents of harsher sentences for criminals claim those who offend have their rights put ahead of the rights of their victims.
READ MORE: * Defining issues: What is the youth crime problem we’re trying to solve? * Defining issues: Fear factor drives tough-on-crime policies
Here’s a look at some of those policies:
National
- Limiting the ability of judges to reduce sentences. A maximum sentence discount of 40 percent and it can only be done once.
- Ending taxpayer funding for cultural reports.
- Money saved from cultural reports to go to victims for counselling or other costs such as transport to court.
- Prisoners on remand eligible for rehabilitation services.
Act
- Require individuals to complete skills or rehabilitation programmes prior to being considered for parole.
- Clarify that judges are to impose the least restrictive outcome that does not impose a disproportionate risk to the community.
- Ensure that judges not only consider the historical impacts of the offending on the victim, but also consider any present risks the sentence may impose on the victim.
- Abolishing cultural report and abolish the consideration of cultural background as a principle of sentencing.
- Use Roc Roi algorithm for sentencing (currently a tool used by Corrections for prisoner management, not the courts).
- Amend the Sentencing Act so that judges must take into account the fact that a serious violent offence occurred against a worker during their course of work as an aggravating factor.
NZ First
- Prioritise the principles of the Sentencing Act to focus on the needs of the victim and the community, and lastly the offender.
- Increase the use of mandatory minimum sentences for serious violent and sexual offenders.
- Introduce a degrees of murder regime that utilises ‘life for life’ for First Degree Murder.
- Remove community sentences or discounts (such as cultural reports) for violent offenders who are considered a threat to the community.
- Introduce harsher penalties for fleeing drivers.
- Review and work to increase the fines for lower-level crimes such as texting while driving and shoplifting.
- Introduce an enforcement law for dangerous littering.
- Introduce a ‘Youth Justice Demerits’ system.
- Introduce a greater range of non-custodial sentences such as the confiscation of specific property, larger and long-term reparation, payments, and fines.
- Remove concurrent sentences for those who commit offences while on parole, on bail, or whilst in custody.
David Harvey was a district court judge from 1989 until 2016 and then from 2018 until 2021 on an Acting Warrant.
He said the idea of simply “putting victims first” was more complicated and nuanced than one might realise.
“There are nine purposes of sentencing: to hold the offender accountable, to promote in the offender a sense of responsibility, to provide for the interests of the victim, to provide reparation for harm done, [etc] and a combination of all of those purposes.
“The victim is there, reparation is there, accountability, which I suppose is the key word for punishment, they're all there and it's a question of weighting.”
He said it was a difficult path to walk if sentencing became about what was acceptable to the victim.
“Like when you get the [media] interviews that take place outside the courtroom door after a sentencing: what do you think of that sentence? And they say well, I don't feel it was enough. Well, how much is enough?
“You've got an element of retribution that comes in here the old eye-for-an-eye type of feeling and is that really going to make things better? It is very, very difficult but what is important is that the victim should have an opportunity to have a say in the process … and they do."
He said victims also have varying levels of comfort with harsher sentences.
“There are often victims who say don't send them to jail. I've had victim impact statements, where the victim has said, I would rather you didn't send this person to jail, I don't want to see his life ruined.
“And you [already] take that into account, the victims sentiments have to be given some weight … it’s there in section seven of the Sentencing Act.”
Harvey said cherry picking aspects of the Sentencing Act to focus on was inappropriate, given the case law and direction from appeals that had built up.
“What has happened over the years is that the appellate courts have put together a process that directs how sentencing should take place and that is based upon the purposes and principles of sentencing, and the various aggravating and mitigating circumstances that should be taken into account.
“And all of those are in the Sentencing Act so it isn't as though judges are making it up as they go along.”
Let’s have a look at what Labour wants to do in this space.
Labour
- Establish a formal class actions regime to help groups of victims achieve justice.
- Modernise consent law.
- Review District Court jury trials.
- Increase uptake of audio-visual technology in courts to speed up hearings.
- Continue the roll out of the Family Court Associates, freeing up judges’ time so they can focus on the backlog of Family Court cases, and the roll out of Associate Coroners, to speed up the Coroners Court.
- Deliver a new digital system for courts and move away from a paper-based system.
- Pass legislation to address name suppression settings, litigation abuse, and questioning children about consent.
- Evaluate the progress of a series of pilot programmes which aim to improve safety and experience in the court system for victims of serious crime, strengthen support for child victims of sexual violence, and ensure victim’s views are heard in bail decisions, and consider how the solutions could be scaled up.
Harvey said over time the right to a jury trial in New Zealand had been eroded, and any work in this space would need to tread carefully.
“I would be very, very reluctant to see the right to a jury trial further eroded, because under the prison system, you will have to go to a judge alone who has to give reasons for his or her decision, which means that that outcome can be appealed.
“In the main juries are working very conscientiously indeed, and are very thorough … so in terms of obtaining an outcome for an allegation of an offence against the standards of the community, what better judge is there than the representatives of the community itself in the form of a jury?”
Here are the policies from the Greens and Te Pāti Māori:
Greens
- Rehabilitation available for all.
- Expand specialist youth courts like the Rangatahi and Pasifika Courts throughout Aotearoa.
- Reform bail and sentencing laws to allow for more non-custodial, community outcomes.
- Improve community reintegration support for people leaving prisons, including housing.
Te Pāti Māori
- Work with whānau, hapū, iwi and Māori organisations to devolve justice services.
- Invest in kaupapa Māori Justice solutions/Muru/Restorative Justice.
- Overhaul Misuse of Drugs Act so that drug use is treated as a health issue.
- Expand rehabilitation and recovery services for people in prison.
- Guarantee minimum entitlements for people in prison are upheld.
- Increase funding to preventative mental health services and double investment in alcohol and other drug-related prevention, harm reduction and treatment.
Armon Tamatea, who has worked in criminal justice for more than 20 years with a focus on prisons, institutional violence and gangs, said offering rehabilitation to everyone behind bars was not addressing the problem of why so many people languished on remand.
Latest figures to June this year show 44 percent of the prison population is made up of those on remand. These may be people who have yet to stand trial or go before court, and those awaiting a sentence.
A long-term insights briefing from the Ministry of Justice published last year noted any time someone was remanded in custody before conviction was “a cause for concern”.
“Rehabilitation typically follows sentencing. So if I'm guilty of a violent offence, and anger and impulsivity is part of that story, then a rehabilitation programme which addresses anger and impulsivity sounds like an ideal thing to do, and an intensive rehabilitation programs typically occurs in the year or the months prior to someone leaving prison.”
“And I don't know if I fully go with this logic, but the wisdom around this is that a person participates in intensive rehabilitation, they learn a whole lot of new skills, and by the time they transition to the community the gap between learning the skills and being able to deploy them in the community is much shorter, and not, kind of, contaminated by general prison living, so to speak.
“Now by having programmes in the front end, there's the risk that good work will be undone … so timing is a bit of an issue when it comes to deploying rehabilitation programmes.”
He said the fact more people were essentially serving their sentences on remand was a failure of the court system that needed to be fixed, rather than “rehabilitating” essentially, innocent, people.
“The solution’s now shifted on to those who are actually not well served by the initial solution, because part of justice is that it is swift and timely.
“If you’ve got people who are in remand, three, four years, then that's not really justice dealt to anybody."
Both experts are sceptical about plans to remove section 27 cultural reports.
Harvey said the reports were “extremely helpful” in piecing together the offence for which a person was being sentenced for.
Tamatea said what impact the reports were having on rehabilitation in the long term was yet to be seen, because the widespread use of them was relatively recent but it was unlikely they were disproportionately affecting sentencing outcomes.
“I don’t think anyone from the judiciary has said 'oh we’ve completely changed our practice around [sentencing] because of them'.
“But the utility of these reports, we don’t know if they've done a service or a disservice, actually, to the community at large and the people that they've been drawn from.”
Harvey said overall the Sentencing Act was “fit for purpose” and cherry picking policies to change would make it harder for judges.
He said massively reduced sentences were very rare, and with hundreds of sentences handed down every day around the country there were only a handful that gleaned the interest of media and, indeed, politicians on the campaign trail.
There are a lot of law and order policies being pitched this election. Read more on youth justice here and policies targeting gangs here.
