Danielle Beston takes a deep dive into the Sentencing (Reform) Amendment Bill.

The Sentencing (Reform) Amendment Bill proposes strengthening the consequences of offending by amending the Sentencing Act 2002. It seeks to limit sentence reductions to 40%, introduce new aggravating factors, amend sentencing principles to account for information provided by victims, prevent repeat use of sentence reductions for youth and for remorse, and encourage the use of cumulative sentencing. If this bill becomes law, it will constrain the state’s judicial arm. It is questionable whether this is desirable or necessary. This month, I want to explore some of the reasons why.

How the sentencing act works
Every charge has a maximum penalty attached to it. For example, assault on a child under the age of 14 years old carries a maximum penalty of two years’ imprisonment. When a judge is deciding how serious an offence is, they must put it on a scale and determine a starting point. The maximum sentence is reserved for the worst example of the offence, and everything else will fall between this and a discharge without conviction, which is at the opposite end of the scale.

After determining the starting point, the judge increases the sentence for aggravating factors such as repeat offending or the victim’s vulnerability and reduces the punishment for mitigating factors such as an early guilty plea or youth. Sentencing is not a fixed process. Judicial discretion is necessary because the facts of each case and each offender are individual, and the resulting sentence must therefore be individualised.

Incarceration rates
New Zealand imprisons 181 people per 100,000, which places us 90th out of 223 jurisdictions. This is well above Australia, England, Wales and Scotland and double the rates in Northern Ireland, the Republic of Ireland and Canada. It is fair to say that based on these numbers, New Zealand judges cannot be described as ‘soft’.

Community protection is the ultimate aim of the criminal law so many are in favour of a prison term being imposed to achieve this end. However, emerging evidence shows that sending offenders to prison makes them more likely to re-offend. Prisoners are seven times more likely than the general population to have a mental health or substance abuse problem. Once inside, prisons provide a training ground for more criminal behaviour and are a ready source of recruits for gangs.

Clogging the courts
There are already long delays that mean that defendants, complainants and witnesses have to wait months or years for a matter to proceed to a trial date. Budgetary restraints have resulted in a shortage of judges and courtrooms, and the criminal justice system is groaning under the pressure. The reductions for mitigating features, which the reforms want to curtail, are essential to preventing this problem from worsening.

If a judge feels obliged to impose a higher sentence because of the new amendments, lawyers must advise defendants accordingly. Inevitably, more will decide to take their chances in a trial rather than plead guilty. This will result in more complainants coming to court to give evidence, some defendants being acquitted, and the already struggling criminal justice system coming under more pressure to allocate trial dates.

Prioritisation of victims
The New Zealand Law Society has identified that the reforms seek to give greater prominence to victims in sentencing decisions. While it accepts that victims rightly have a place in the sentencing process, it points out that prioritising the views of victims over other factors could fundamentally change the criminal justice system.

This could lead to unintended and unjust outcomes with disproportionately severe and varied results. Two victims of similar crimes could hold very different views about the purpose of sentencing and the appropriate sentence. Additionally, creating an expectation that victims’ perspectives will determine the sentencing decision may ultimately disappoint victims when this is not possible due to other factors such as sentencing principles, purposes and aggravating or mitigating circumstances. This could undermine confidence in the justice system.

Judicial ingenuity
Judges who consider the Sentencing (Reform) Amendment Bill to overstep the separation of powers will do their best to secure individualised justice. It might be that they set the starting point of a sentence at the low end of the scale to achieve the same outcome, while appearing to abide by the new 40% cap on mitigating factors. Alternatively, they could decide that a rehabilitative sentence that does not require the imposition of a custodial sentence is the better outcome. The creativity of the judiciary should not be underestimated.