The Government has agreed to one of the recommendations on sentencing changes, partially agreed to another, and rejected one because of practical difficulties.
The Government has quietly rejected giving abuse-in-care survivors an explicit clemency for prior convictions committed as a result of that abuse.
A sentencing judge is already able to do this when considering an offender’s background, although the axing of state funding for cultural reports will reduce the flowof such information to the judicial bench.
It was for offending that had happened “in response to abuse and/or neglect in care”, but Justice Minister Paul Goldsmith has followed his officials’ advice in rejecting this, saying it is unworkable and would lengthen the already-lengthy court process.
A key question with no clear answer is what offending, if any, might have been the result of in-care abuse or neglect.
Goldsmith hasn’t made an announcement about the decision, which is revealed in a Regulatory Impact Statement (RIS) and Cabinet paper that the Ministry of Justice has published.
Justice Minister Paul Goldsmith. Photo / Dean Purcell
‘Valuable symbolic effect’
Goldsmith adopted other recommendations from the Royal Commission, which the Cabinet has agreed to, including:
Any relevant crimes against a young victim (under 18 years of age) would lead to a longer sentence because of their inherent vulnerability, a wider net than the current age threshold of up to 14. This would be broadly applied, rather than exclusive to survivors of abuse/neglect in state or faith-based care.
An aggravating factor at sentencing - the vulnerability of the victim - will be changed to include as an example whether the victim was abused or neglected in state or faith-based care. This differs from the Royal Commission’s recommendation, which was for a new aggravating factor to specifically reference abuse/neglect in state care.
These will be added to an existing bill around sentencing changes that is currently before Parliament, and is expected to pass into law later this year with the support of the governing parties.
Officials believe that their impact on sentencing will be modest, but “will have a valuable symbolic effect and help increase trust and confidence in the sentencing system”, they said in the RIS.
“Officials consider the recommended amendments may signal the seriousness with which the courts should approach sentencing involving offending against vulnerable abuse-in-care victims, and those survivors who offended as a result of being abused or neglected in care settings.”
Prime Minister Christopher Luxon stands alongside minister Erica Stanford as the Government makes its formal apology for abuse in state and faith-based care. Photo / Mark Mitchell
What the Royal Commission wanted
The Royal Commission said that many survivors committed crimes, such as theft or dishonesty offences, when they were released from places of abuse, or were running away from them. Some also assaulted caregivers who had abused them.
This was the basis for its three recommended changes to the Sentencing Act:
Increasing the age of victims who are considered particularly vulnerable, from under 14 to under 18, when considering aggravating factors at sentencing
A new aggravating factor at sentencing for victims who were “particularly vulnerable as a result of being in state or faith-based care or deprived of liberty”
Ensuring survivors are not unduly penalised for previous convictions for offending that happened as a result of abuse in care
The Cabinet accepted the first, and partially accepted the second. It agreed to add “being in state or faith-based care” to the current aggravating factor of what the offender knew about a victim’s particular vulnerability.
Such vulnerabilities can already be considered at sentencing, so justice stakeholders thought that adding a new aggravating factor would be unnecessarily duplicative.
Regarding the third recommendation, stakeholder feedback to the Justice Ministry was that an offender’s background - such as being a survivor of in-care abuse - can already be taken into account at sentencing.
The removal of state funding for cultural reports, however, “will constrain the ability of the courts” to do this, the RIS said.
Goldsmith added that giving explicit protections for survivors' previous convictions would pose problems.
“Courts would need to access relevant information. This information would be difficult to acquire and could result in a need for additional hearings, with impacts on court timeliness," he said in his Cabinet paper.
Abuse in State Care Royal Commission of Inquiry. Photo / RNZ/ Patrice Allen
Abuse and offending: unclear causal connection
There were also difficulties in how the recommendation would work, officials said.
“It is not clear to what extent, if any, there is currently inadequate consideration to abuse or neglect in care as a contributing factor to previous offending ... It has not been possible to locate and analyse data on this issue,” the RIS said.
Nor was it clear what was meant by offending that happened “in response to abuse and/or neglect in care”. Should it include offending that happened while in care or fleeing from care, or offending that was the result of trauma from experiences in care?
There was also the potential for double jeopardy, when an offender is punished again for a previous conviction, the RIS said.
The ministry held a targeted consultation with key stakeholders but didn’t have time to consult with Treaty of Waitangi partners - as the Royal Commission envisaged - legal practitioners, victims' advocates or the public, which would have been ideal.
The report, by the Independent Children’s Monitor, said almost a quarter of young people in the justice residences had been abused, with about a fifth of that abuse coming at the hands of residence staff.
It noted how the abuse committed by staff included using “excessive force including punches, hits to the head and rangatahi ‘getting the bash’”.
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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.
