ANALYSIS
The use of home detention as a sentence is one of the key issues following yesterday’s tragic shootout in downtown Auckland. Corrections statistics show those on home detention are two and a half times less likely to be reconvicted within 12 months than those serving a prison term of one to two years.
But as National lobs the first shots at Labour over the Auckland shootout, research shows a negligible difference in recidivism rates between those on home detention and those serving short prison terms - controlling for other factors.
Matu Tangi Matu Reid was serving a five-month home detention sentence - and wearing an electronic bracelet - when he took a pump-action shotgun to a construction site and opened fire. Two construction workers are now dead, as is Reid.
There are several investigations under way including by police into how Reid, who had no firearms licence, procured the shotgun, and by Corrections into the management of his home detention.
Prime Minister Chris Hipkins also signalled the possibility of a wider system review, which could cover whether Reid should have been given a home detention sentence in the first place.
He was sentenced in March for domestic violence offences in September 2021. He’d been drinking when he attacked his partner - who has automatic name suppression - punching and kicking her, throwing an object at her face, and holding her by the throat for 10 seconds with enough force to fracture her neck.
“That is not a short period of time when someone is being strangled, Mr Reid ... it would have been a terrifying event for her,” Judge Steve Bonnar said in his sentencing notes.
Reid had previously been convicted of assault and was still subject to a sentence of supervision at the time. He faced a sentence of up to seven years’ jail, the maximum sentence for his most serious offence: strangulation.
Judge Bonnar, agreeing with the Crown, said the level of offending was “low to moderate” and the starting point for a sentence was two years and three months’ jail.
He then noted the aggravating factors that pushed the sentence to three years: the harm he caused (the partner was hospitalised), the “fairly significant level of violence involved” in the strangulation, the fact Reid was still on supervision, the “moderate” vulnerability of his partner, and the fact that the offending occurred in her safe place, her home.
The mitigating factors included Reid’s guilty plea (a nine-month discount, agreed to by the Crown), and his youth, remorse, and background factors that “have some connection to your offending” (a seven-month discount).
Those factors were detailed in a cultural background report that said Reid ran away from home at a young age, was exposed to gang culture while young, and suffered from “systemic depravation, a disconnect with your culture, [and] a history of family instability and hardship, including being exposed to domestic violence and physical abuse as a young person”.
His sentence - reduced from 36 to 20 months’ jail - made him eligible for home detention, which Judge Bonnar deemed appropriate because sending him to prison would more likely “set you down the wrong path”.
Offenders serving sentences between one and two years are automatically released - with conditions - after half their sentence, so Reid’s home detention sentence was 10 months. It was then cut to five months, given he had already spent five months in custody awaiting sentencing.
His conditions included not having any alcohol or drugs, attending an appropriate non-violence programme and alcohol and drug programme to be determined by a probation officer, and not contacting his partner without approval.
Police Commissioner Andrew Coster has said that, so far, there is no indication that Reid had breached the conditions of his home detention.
Home detention is one of 10 community-based sentences and was introduced in 1999. Since 2007, it has been up to the courts to impose home detention rather than the parole board.
Then-Justice Minister Mark Burton, at the third reading of the bill that enacted these changes, said “home detention is a proven, successful measure for selected offenders ... Home detention has low reconviction and low reimprisonment rates when compared with prison sentences.”
The contentious issue that was debated in the House at the time was whether it was an appropriate alternative to a short prison sentence for violent offenders.
It is available to offenders who are sentenced to up to two years in prison, and is considered a curfew at an agreed address, to be monitored electronically. Its advantages include allowing offenders to have a paid job, stable accommodation and social relationships - all potential contributors to breaking the reoffending cycle.
Its use has been stable in the last five years, though according to answers to parliamentary written questions, 2254 people have had at least two home detention sentences between 2015 and 2022.
And it is far less costly than jail; the 2021/22 annual report from Corrections says the average daily cost of monitoring home detention is $109, almost a fifth of the equivalent cost of a person in prison ($531). In that year, 1482 offenders served home detention sentences with an average sentence length of 210 days.
Slightly fewer than one in six offenders on home detention were convicted of a new crime within 12 months of starting their sentence, while one in 14 were imprisoned. The 12-month reconviction rate (38.8 per cent) was two and half times higher for those released after serving a one- to two-year jail sentence, while the re-imprisonment rate (22.4 per cent) was almost three times higher.
Within two years, 31.6 per cent of those starting a home detention sentence had been convicted again, while 11 per cent were imprisoned. The reconviction and re-imprisonment rates for those released after a one- to two-year prison sentence were again much higher: more than twice as high for reconviction (64.4 per cent) and nearly four times higher for re-imprisonment (40.7 per cent).
A 2019 paper by Corrections analyst Dr Wayne Goodall noted the similarly stark differences in the reconviction and re-imprisonment rates in the 2018 data, but said “simple comparisons of this nature can be misleading”.
Accounting for other factors, he found little difference in reoffending rates for those on home detention and those serving short prison sentences.
He drew from two unpublished studies - one looking at 2008 and 2009 data, the other looking at 2008 to 2013 - that sought to control for the “differences arising from characteristics of the offenders or their offending”, such as the type of offence and their criminal history.
The former study, by S Dixon and M Morris, found prisoners were 4 and 5 percentage points more likely to be reconvicted after one and two years respectively than those on home detention. The latter study, by BERL, found prisoners were 3.4 percentage points more likely to be reconvicted within one year, but after two years the rates were almost identical.
Goodall noted the 3.4 percentage point difference in the BERL study as the only “statistically significant” one in the likelihood of being convicted; it’s unclear why the Dixon and Morris findings were considered insignificant.
Accounting for the “strong positive difference in favour of home detention” due to the stable accommodation and “prosocial” support, for which there was no data, he concluded: “There is no difference in real reconviction rates between home detainees and those released from a short term of imprisonment.”
Corrections clarified in a statement: “If stable accommodation and prosocial support were able to be considered in the studies, they may have further reduced the difference between the two sentence types.” They do potentially contribute to a lower reoffending rate, in other words, but the study’s purpose was not to see if one type of sentence was more suitable, but whether there would be different outcomes between similar individuals on different sentences.
“The belief that home detention necessarily results in lower rates of reconviction is not supported,” wrote Goodall, adding that this is consistent with external research cited in the unpublished studies.
“The raw or unadjusted rates differ due to differences in characteristics of the offenders serving the two types of sentence not the structure of the sentence types. However, what is apparent from these studies is that home detention sentences, which essentially allow offenders who would otherwise be imprisoned to remain in the community, certainly do not increase the likelihood of offending.”
The unpublished studies also found that those who were in prison were more likely to be on welfare than those on home detention, who were “modestly” more likely to be employed a year after their sentences.
Given how much cheaper it is compared to keeping an offender behind bars, Goodall said home detention was arguably a “safe and cost-effective sanction”, and the use of it whenever practicable is “sound”.
“In those instances where home detention is feasible (there is a residence available) and there are no clear reasons for preferring imprisonment, home detention should be recommended.”
Goodall’s paper is cited in a Ministry of Justice paper - Long-Term Insights on Imprisonment, 1960 to 2050 - which says: “Once differences in risk are controlled for, people on home detention sentences (which avoid people encountering criminal peers in prison settings) reoffend at a similar rate to people sent to prison on short sentences.”
A meta-analysis of international studies showed imprisonment increased the likelihood of reoffending “but only very slightly”, the paper said, adding that no equivalent research in New Zealand exists.
The paper adds: “Administrative data from 1990 to 2018 consistently shows that around 60 per cent of people who go to prison for the first time do not return to prison within the first five years after release. This suggests that to the extent it occurs, the criminogenic impact of prison is not immediate and/or does not lead to reoffending serious enough to result in reimprisonment.”
Yesterday politicians refrained from trying to score any political points over the tragic events in Auckland, but today National attacked Labour for not restricting judges’ ability to reduce sentences, and demanding its target to reduce the prison population by 30 per cent be axed.
“Downgrading prison sentences to home detention poses clear threats to community safety which Labour continually refuses to acknowledge,” National’s justice spokesman Paul Goldsmith said in a statement.
“Home detention rarely means offenders are confined to their homes, with many attending workplaces and other public places. Home detention has its place, but ultimately, an ankle bracelet only tells authorities where someone is. It cannot stop them from harming innocent New Zealanders.”
He didn’t say so specifically, but the overlying tone is that Reid should not have been given home detention in the first place. But it’s up to a judge to determine whether home detention is more appropriate than a custodial sentence.
It’s unclear whether National’s wish for a 40 per cent limit on how much a judge can discount a sentence would have made a difference.
Such a discount on Reid’s initial 36-month sentence (accounting for aggravating factors) would have still left the sentence at less than two years, and therefore eligible for home detention. Assuming a 40 per cent limit, however, a judge might have decided not to apply all of it, leaving it at longer than 24 months.
It is equally speculative to wonder whether, having served a short prison term, something similar to the events of yesterday morning might still have transpired at some point after he was released.
Here in a nutshell is the political divide: one side says if they’re sent to prison, they can’t harm the public; the other side says they might end up being a greater danger to the public once they’re eventually released, so it’s better to exhaust all rehabilitative efforts.
National also wants to cut taxpayer funding for cultural background reports which can - and in Reid’s case, did - contribute to a discounted sentence. Their monthly cost has skyrocketed from a few thousand dollars in 2017 to well over half a million dollars.
Act wants to get rid of them completely. Leader David Seymour has called them a “cottage industry” that’s being used to reduce sentences for “hardened criminals”, while failing to properly acknowledge the victim.
The underlying theme - which Seymour alluded to when asked recently about the Three Strikes regime - is that there is a gulf between what the judiciary and the public consider to be appropriate punishment.
Give the people what they (or a majority of them) want, or leave it with those who supposedly know better?
Labour and the Greens support judicial discretion and independence, an acknowledgment of the separation of powers. It’s also based on trust in the judiciary to make decisions with all the relevant factors in mind - including the cultural background of the accused.
Judges have to keep public safety front of mind, and have expert knowledge of details - including legal precedent and the nature and history of New Zealand law - that the public do not.
But it is inevitable, given the inherent uncertainties in the factors involved, that mistakes will be made. Judicial decisions are not infallible - regardless of whichever politicians are in power.
Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.
It follows concerns about use-of-force powers being given to staff.