Sentencing discounts in judicial system spotlight

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Hot election topic as National announces 40 percent cap mark if voted in as Government.

A new legal decision is putting the brakes on the level of discount offenders can get at sentencing.

Offenders can theoretically get an entire sentence wiped out by discounts. Pleading guilty early can get an offender 25 percent discount, and they can also get discounts for factors such as youth, personal circumstances and upbringing, remorse, previous good character, time in custody or on restrictive bail, and for cooperating with authorities. 

The issue has become a hot election topic for the National Party, which has announced it will cap sentence discounts at 40 percent if it becomes the Government in October.

However, opponents say the policy is overreaching and shows a lack of understanding by politicians and the public as to how nuanced and personal the sentencing process is.

In Gisborne District Court last week, Judge Warren Cathcart cited a recently-released decision by the Court of Appeal that also dealt with the issue of high-level sentence discounts.

Rhys McCaslin-Whitehead was a commercial drug dealer caught importing 5000 LSD tabs (a Class A drug) and 11 kilograms of MDMA (Class B) during a police sting on money laundering.

The Class B substance alone was estimated to have a street value of at least $1.65 million.

He subsequently pleaded guilty to 23 charges involving the importation and supply of those drugs, cultivation of cannabis, and firearms offences.

Sentencing McCaslin-Whitehead in Auckland last November, District Court judge Belinda Sellers KC arrived at a starting point of eight years imprisonment but reduced it to 12 months home detention after giving McCaslin-Whitehead discounts totalling 80 percent.

In a rare objection, the Crown appealed the sentence, saying the length and extent of the offending, the amount of drugs and money involved should not have resulted in anything less than jail time.

The level of discounts given was too high and even if the sentence had come within range for home detention, it should not have been converted.

Prosecutors emphasised the importance of the sentencing principles and purposes of accountability, denunciation and deterrence for commercial-level drug offending, saying the need for deterrence in McCaslin-Whitehead’s case was especially high.

His offending had only come to light because of the police focus on money laundering. The availability of encryption software and the ubiquity of the internet made it “incredibly easy” to import such drugs into New Zealand undetected. There needed to be a credible deterrent to counter balance those factors.

High Court Justice Paul Davison agreed and quashed the original sentence, replacing it last December with four years, two months imprisonment.

In response, McCaslin-Whitehead went to the Court of Appeal and was granted bail while that process took place.

He argued the High Court had wrongly upped the sentence starting point, which the Crown hadn’t asked to be reviewed, and wrongly decreased discounts that were appropriately assessed by the District Court.

However, the Appeal Court agreed with the Crown and High Court that the original sentence was “manifestly inadequate” and that “a sentence of imprisonment was called for”.

Notwithstanding that, the Court of Appeal said it would be unjust to interfere with the original sentence and “in line with well-settled prinicples governing appeals by the Crown” cancelled the High Court’s prison sentence and reimposed what was left of the sentence of home detention.

The Appeal Court’s findings were important for policy reasons. Such decisions guide future judgements by the lower courts.

Judge Cathcart highlighted the case for Gisborne lawyers when he adjourned a sentencing in which a defence counsel was similarly hoping to get his client discounts totalling 80 percent. The judge said the lawyer should now revisit the levels of those discounts.

The Crown’s objection to the discounts in the McCaslin-Whitehead case was mainly to a 30 percent discount he got for his personal, background factors outlined in a Section 27 cultural report.

The Appeal Court said few offenders get discounts as high as 30 percent for those factors, and McCaslin-Whitehead’s circumstances were not as remarkable. His discount should have been 20 percent at most.

The Court emphasised the need for judges to step back and check that the levels of discounts applied were proportionate to the overall seriousness of the offending and whether the outcome still met all the purposes and principles of the sentencing process.

“Discounts overlap and there is a risk that some statutory purposes of sentencing can be lost sight of when they are treated separately and simply tallied up,” the Court of Appeal said.

National was forced to clarify its policy announcement after critics pointed out it could disincentivise defendants from entering early guilty pleas or cooperating with authorities.

Party leader Chris Luxon said the policy was “absolutely not” intended to undermine this.

Victims advocates have publicly supported the policy but opponents say it falls well short of good legislative practice.

Minister of Justice Kiri Allan has criticised the policy as an “egregious overreach”, telling Radio New Zealand the Act is fit-for-purpose and politicians shouldn’t impinge on the judiciary.

“The trust that we must have in those front-line judicial officers — that they know their job best, they know what they’ve been charged to do.

“And where I think Mr Luxon took it a step too far is essentially saying that we politicians know better than the judiciary,” she said.

Former Auckland District Court judge David Harvey says National’s policy would fetter the judiciary in the same way the 2010 three strikes law did, by introducing a mandatory sentencing regime. “

“Whether or not we think they should is an entirely different question,” says Harvey, who notes the task of amending a sentencing statute and its interlocking provisions will prove difficult.

He says guidance from the appellate courts and the relevant sentencing purposes and principles from the Sentencing Act are sufficient to enable judges to determine culpability and seriousness of the offence.

Thereafter, judges are well placed to use their discretion in assessing uplifts and discounts for aggravating and mitigating factors, then stand back and look at the sentence in the round.