OPINION: Pronouncements by the government and the Minister of Justice, Paul Goldsmith, indicate the direction being taken on law and order policies.
These are in answer to perceptions about rising crime levels, the seriousness of offending and often the age of the offenders. So, proposals are put forward about bootcamps for young offenders and moves to limit the discounts and factors that judges may take into account in sentencing.
And the focus is not on the causes of crime but on the consequences to be suffered by the offender. Therefore, the focus is on sentencing rather than “law and order”. To be perfectly frank, it seems to me that the government is taking a Dostoyevskian approach and its policy is more about crime and punishment.
In this respect, the focus of attention must be on the Sentencing Act 2002, an act introduced and shepherded through the legislative process by then justice minister Phil Goff, heralded as a “get tough on crime” measure. But it wasn’t.
The act, together with the Parole Act 2002, replaced much of the Criminal Justice Act 1985, and constituted the first comprehensive sentencing reform in many years. These reforms followed a government review of sentencing policy, which resulted in a full discussion paper published in 1997.
An undercurrent to the reforms proposed was a citizens-initiated referendum of 1999, which asked: “Should there be a reform of our justice system placing greater emphasis on the needs of victims, providing restitution and compensation for them and imposing minimum sentences and hard labour for all serious violent offences?”
The result was 91.75% in favour. Minimum sentences didn’t follow. Hard labour was not an option.
A unique feature of the Sentencing Act is that it sets out the principles and purposes of sentencing. These are clear statements of legislative policy and expectation and have formed the basis for the fixing of variables in the sentencing process – the uplifts to be imposed and the much-criticised discounts to be applied.
It may come as a surprise to many that the words “punishment” and “retribution” are not mentioned in the purposes of sentencing and barely referenced elsewhere in the act. Anodyne words are used, such as “holding the offender accountable” and “promoting in the offender a sense of responsibility” for the harm caused. Even more surprising is the way judges are directed in Section 8(g) of the Sentencing Act, which provides that in sentencing or otherwise dealing with an offender the court “must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders”.
This means the court is directed, where appropriate, to impose a sentence where the restrictions that might follow are as little as may be justified. This means Parliament has directed that where there may be more severe outcomes, the judge must impose the least severe or restrictive, taking into account the circumstances. This hardly reflects the will of the people, as expressed in the 1999 referendum.
Rather than interfere with and prescribe the exercise of judicial discretion, if the government was serious about a crime and punishment approach it would change the sections relating to the principles and purposes of sentencing. It would make it clear that punishment and retribution should be used to indicate societal displeasure at criminal offending and remove the “least restrictive outcome” section so judges have the full range of penalties at their disposal.
There would then be no need to be prescriptive about rates of discounts or tinker with judicial discretions. The answer lies in a clear expression by Parliament of sentencing policy.
