Opinion: Sentencing offenders is one of the more difficult aspects of the judicial role. National and Act campaigned on tougher sentences and the Sentencing (Reform) Amendment Bill introduced to Parliament last month makes a number of adjustments to the way sentences are calculated to ensure that “criminals face tougher consequences”, as Minister of Justice Paul Goldsmith put it.
The bill does not contain substantial reforms to the Sentencing Act 2002, though there is an adjustment to the principles of sentencing to provide for greater attention to victims.
I shall address one issue in the bill – that of discounts.
Over the years, a step-by-step process has been developed to ensure the requirements of the act are met and there is transparency in sentencing. There are two main steps in the sentencing process. The first is to fix what is called an adjusted starting point (ASP). This involves making an assessment of the culpability of the offender and a consideration of any aggravating or mitigating circumstances surrounding the offence. Reference is made to guideline cases (if there are any) or sentences that have been imposed in similar circumstances, thus ensuring a consistent approach.
The second step involves consideration of factors relating to the offender. These factors may be aggravating or mitigating. They may take into account the offender’s age (if relevant), whether there has been a genuine expression of remorse, whether there has been acknowledgment of responsibility by way of a guilty plea, and whether there are factors contributing to offending, such as drug or alcohol addiction, mental health issues or personal background that may explain or mitigate the offending. These could then possibly be addressed in sentencing to attempt to reduce the likelihood of reoffending.
These factors have been expressed as discounts, or reductions of the ASP first arrived at. The appeal courts have made it clear that the discount for a guilty plea reduces the closer one gets to trial. An early guilty plea warranted a discount of 25% of the ASP. If the plea was entered a few days before trial, the discount might reduce to 5%.
The bill interferes with the ability to recognise circumstances that may have contributed to the offending.
The bill places these discounts into a legislative framework, along with criteria for assessing what discount may apply. This, therefore, is a legislative recognition of judge-made rules. It’s not new; nor is it a reform.
However, the bill does address the other discounts that may be applied. In the past, depending on the circumstances, judges have had wide discretion to assess the discounts that might be available if there has been a contributory link to offending. This means that in some cases, an ASP might be reduced by more than 50%. This has caused consternation and a suggestion that judges have become too soft.
The new bill caps the maximum allowable discount at 40% of the ASP. So, if a judge applies a 25% discount for a guilty plea, other mitigating factors such as drug addiction, remorse and the like can amount to only 15%. This can be exceeded if the resulting sentence turns out to be manifestly unjust.
This is a significant interference with judicial discretion to take into account the factors that are set out in the Sentencing Act and interferes with the ability to recognise the circumstances that may have driven or contributed to the offending which may mitigate it.
It essentially provides a “cookie-cutter” result that fails to recognise the wide variety of circumstances that surround offending and offenders – something that judges are best qualified to assess.
In addition, if a discount for youth or remorse has been given for earlier offending, it is not available if the offender appears for subsequent wrongdoing.
The bill does not reform the sentencing process. Rather it adjusts and limits it, depriving the judge of the flexibility the sentencing process requires.
David Harvey is a retired district court judge.
