Parliament is changing the law to make judges impose tougher sentences. Photo / Dean Purcell
Sentences are not long enough for serious crimes, the Government says, but changing the law so a judge hands down a longer sentence effectively says judges are out of touch and politicians are making it right. Do politicians know better?
The Government looks set to limit how much a judge can discount a sentence for an offender’s youth, remorse, or late guilty plea - which would all lead to longer sentences.
That could mean an offender’s age or any remorse they express being “one-off” discounts, which would no longer be available following any subsequent reoffending.
It could also mean a prescriptive regime for how to handle guilty pleas, including requiring judges to give a small discount if entered the night before a trial starts, or during a trial. However, this has the potential for perverse incentives including innocent people pleading guilty so they can be sent home on a community-based sentence rather than spend time in jail on remand.
These policies were not campaigned on, but align with National’s law and order rhetoric that sentences for serious crime are too short. They also complement - though would be independent of - the Government’s commitment to cap the maximum sentencing discount a judge can give at 40%.
But they are likely to ruffle legal feathers because they are contrary to the wide discretion that judges have on which mitigating factors are relevant and to what extent, depending on the unique circumstances of each case. This acknowledges the expertise of the bench - do politicians know better? - though there are principles of consistency to ensure similar sentences are given in similar cases.
The policies are revealed in the latest justice sector projections report, which says that government policies could add up to 2400 additional prisoners in the coming decade.
This would push the prison population to 13,700 in 2034, a 43 per cent increase from the current population of 9548 prisoners, and 2300 more prisoners than beds in the system, counting the additional 1410 beds planned for Waikeria Prison in coming years.
The forecast for the increase doesn’t account for the impact of 500 additional police, but factors in several already-announced policies such as the anti-gang laws, firearm prohibition orders, scrapping legal aid for section 27 reports, the 40% cap on sentencing discounts, and Three Strikes 2.0.
It also accounts for proposals that are yet to be formally approved, including:
The policy for cumulative sentences is part of the NZ First-National coalition agreement, but the Government is yet to make public any decisions on guilty pleas or youth/remorse discounts.
Justice Minister Paul Goldsmith, when in Opposition, floated the idea of one-off discounts for remorse and youth, which wouldn’t be available for the offender if they committed further crimes.
He was responding to the public outcry when Tauranga teenager Jayden Meyer was sentenced to nine months’ home detention for raping four women and sexually violating another.
It’s unclear if the Government policy would include a severity threshold that would trigger the “one-off” clause, or if the discounts might be allowed two or three times before becoming unavailable. A spokesman for Goldsmith would not confirm any details, saying only that the Government will be making decisions shortly.
The rationale might be that genuine remorse is questionable coming from an offender who repeatedly commits serious crimes. Likewise, an offender’s youth shouldn’t continue to count as a mitigating factor if that person continues to offend.
It would also effectively say that remorse shouldn’t count for anything in any reoffending, nor should their youth despite the accepted science around neurological development.
The Sentencing Act requires a judge to consider several factors when sentencing, including a guilty plea and when it is entered, whether the offender is remorseful, and their age. Being remorseful can include any offer from an offender to make amends.
How they are used is currently up to the judge, who is guided by legal precedent. The precedent for the youth discount is in a Court of Appeal decision from 2011 involving a murder trial for two teenagers aged 14 and 17.
“There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults,” the court decision said.
Other factors were that imprisonment “may be crushing” on young people, and that they have “greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult”.
“This does not mean that young persons should not take responsibility for their actions – it is merely that their actions may be partly explicable (but not necessarily excusable) by their state of neurological development.”
Subsequent judgements have noted how risk assessment and planning ability are still developing in younger brains, which may not be fully developed until the age of 25. This is in part the rationale underpinning the Young Adult List Court (for offenders aged 18 to 25).
But a 2024 paper - looking at 66 decisions for young adults (18 to 25) convicted of burglary and grievous bodily harm - found that the youth discount was applied inconsistently.
It noted judges who looked at the “youthful” conduct of the offending rather than the offender’s age.
“A discount for youth exists to recognise the causal relationship between an offender’s age and their offending,” the paper said. “Therefore, the focus of the assessment should be on the age of the offender, not on whether their conduct appears ‘youthful’.”
The paper recommended ranges for the youth discount, but maintaining judicial flexibility within those ranges.
Goldsmith told the Herald in December that he was looking at incentivising early guilty pleas as a way of unclogging the courts.
Later guilty pleas are one of the main reasons why court processes are being dragged out; 60% of defendants were pleading guilty at the admin stage in 2015, but this dropped to 50% by 2020.
A Justice Ministry research team found no clear reasons behind this. Potential factors were “running down judicial resourcing”, more defendants representing themselves, financial incentives for a longer process - the more court events, the higher the legal aid fees - and an “adjournment mentality”.
The review also considered prescriptive regimes in Australia; New South Wales, for example, provides a 25% discount for a plea entered more than two weeks before trial, reducing to 5% thereafter.
“Initial evaluations seem to suggest that the discount, when scaled against the time the plea was entered, appears to increase earlier guilty pleas,” the paper said.
But it came with a warning. Studies in Canada and Hong Kong suggested that some guilty pleas were entered just to get out of prison earlier. One study found remand prisoners were two and a half times more likely to plead guilty than those on bail.
The legal precedent in New Zealand comes from a Supreme Court decision in 2010. It said, in general, that a guilty plea at the earliest reasonable opportunity should have a discount of up to 25%, dropping to 10% if it came at the start of a trial or even during it.
But overall it favoured wide judicial discretion. Why should the maximum discount be given to a defendant who entered an early plea, regardless of the strength of the case against them? Ignoring this, the Supreme Court said, would likely lead to “unjustified windfall benefits ... to those who have little choice but to plead guilty.
“Also, it would put pressure on an accused to plead guilty for reasons that are unprincipled. In some cases, pressure of this kind could lead to a guilty plea being entered in haste by someone who may not be guilty.”
The decision was a response to a Court of Appeal ruling that set out a prescriptive regime. The Supreme Court dismissed this as an overreach because it changed sentencing policy without any legislative direction to do so.
However, there are suggestions the system isn’t working. Justice Ministry-commissioned focus group research - described as illustrative rather than representative - said that the 25% discount was being applied regardless of how far a case had progressed.
The legislative direction is now on its way. Goldsmith told the justice select committee last week that the Government was elected to change the law and shift how sentencing was handled.
He didn’t want to talk about individual cases, but said when “large numbers of serious cases” end up on home detention, “victims don’t feel like they’ve achieved justice”.
The Government was amplifying the punitive side of the justice system for accountability and public safety reasons, but he said there were also several policies aimed at the drivers of crime including tackling truancy, Social Investment 2.0, rehabilitation programmes for remand prisoners, more housing, and help for mental health and addictions.
“It’s very easy for people to say we’re only interested in the punitive side. We’re not.”
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.
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