Government moves to harsher punishments for offences committed on bail, parole, or in custody

• This story has been updated after Justice Minister Paul Goldsmith clarified his position to the Herald after the press conference on Wednesday.

The Government will firstly “encourage“ rather than require judges to hand down cumulative sentences for offences committed on parole, bail or in custody because of the impact on the prison population.

Prisoners are often given concurrent sentences and serve the most severe one, with the others rolled in. Making them serve each sentence for offences committed while on parole, in custody or on bail is a long-held policy of NZ First, and National agreed to it in their coalition agreement.

Justice Minister Paul Goldsmith indicated on Wednesday that the policy had been scrapped because it would lead to a “very very significant impact on the prison population”.

“If we find we have to go further later, we will,” he said on Wednesday.

He clarified to the Herald on Thursday that the commitment still stood, and the Government would make good on it by the end of the parliamentary term. “Encouraging” it was a first step so that the increase to the prison population didn’t happen so suddenly.

It was one of several measures Goldsmith announced:

• Capping the sentence discounts that judges can apply at 40% unless it would result in manifestly unjust sentencing outcomes.
• Preventing repeat discounts for youth (18 to 25) and remorse, which had allowed for “lenient sentences”. These will be only available once and not for further offending, with no seriousness threshold.
• Introducing a new aggravating factor to address offences against sole charge workers and those whose home and business are interconnected, as committed to in the National-Act coalition agreement. This targets crimes that take place in the corner dairy, for example.
• Encouraging the use of cumulative sentencing for offences committed while on bail, in custody, or on parole.
• Implementing a sliding scale for early guilty pleas with a maximum sentence discount of 25%, reducing to a maximum of 5% for a guilty plea entered during the trial. Goldsmith said this would be mandatory, which raises questions about “unprincipled” motivations for pleading guilty, the Supreme Court has said, as well as innocent people pleading guilty to avoid jail time while on remand.
• Amending the principles of sentencing so a judge has to take into account the victims’ interests. Both the National-Act and the National-NZ First agreements have commitments to give greater weight to victims over offenders, which Goldsmith said would be the impact of this. The principles currently require the judge to take into account information about the effect of the offending on the victim.

He said together they are estimated to add between 1480 to 1730 prisoners “per annum over 10 years” at a cost of between $165 million to $192 million a year.

“We’re prepared to make that investment, if it means keeping our communities safer.

National leader Christopher Luxon, Act leader David Seymour, and NZ First leader Winston Peters. Photo / Mark Mitchell

For a youth discount, he said “the definition of youth seems to be getting older and older”, and the Government landed on one-off youth discounts for those aged 18 to 25.

“For 18, 22-year-olds, youth has led to significant discounts. That’s fine once, but we don’t think it should be used on multiple occasions,” Goldsmith said.

How that would change how the Young Adult List Court remains unclear; the court deals specifically with those 18 to 25 in recognition that the brain is still developing until the age of 25, and to fill the gap between that age and those in the Youth Court (which deals with youth up to age 17).

Goldsmith has previously floated the idea of one-off discounts for youth when in Opposition, and in response to the public outcry when Tauranga teenager Jayden Meyer was sentenced to nine months’ home detention for raping four women and sexually violating another.

On a one-off remorse discount, he said: “We don’t believe that you can be remorseful 10 times.”

Goldsmith said this wasn’t about having no trust in judges and politicians knowing better, but about Parliament “reflecting the will and concern of the wider community.

“They [judges] can exercise their judgement but the clear message that we’ve had from the community is that there is a concern around undue leniency for sentencing.

“Our primary purpose is to send a clear message from Parliament: we want to have fewer massive discounts in sentencing so that people face real consequences for the crimes.”

Change in sentencing?

Goldsmith said there had been “a concerning trend where the courts have imposed fewer and shorter prison sentences despite a 33% increase in violent crime”.

He said there had been a drop in the imprisonment rate for robbery offences from 74% in 2016 to 50.8%. “There’s been less prison time for equivalent offences in the last few years.”

The latest justice sector projection found that the average imposed sentence length is projected to remain stable for the next 10 years.

It said short sentences (two years or less) had on average increased from 260 days in October 2010 to 340 days in October 2023 due to the increase in community-based sentences, and “further increases in imposed sentence length for short sentences are not expected; this will remain stable over the next 10 years.”

For long sentences (more than two years), the report said: “The average length of imposed sentences has remained relatively stable for the last 20 years (despite monthly variation). This is expected to remain stable over the next 10 years.”

The changes are expected to add between 1480 and 1700 additional prisoners over 10 years. Photo / 123RF

Whether violent crime is increasing also depends on which measure you look at. Goldsmith is citing reported crime statistics.

The NZ Crime and Victims Survey includes unreported crime, which accounts for almost three-quarters of all crime (though the survey does not include crimes against businesses, such as ram raids). It shows that crime levels (the proportion of adults who experience crime) have been steady every year since it started in 2018, as has the proportion who experience interpersonal violence (including threats and acts of damage, physical offences including robbery and assault, and sexual assault).

It’s also contentious that the public want harsher sentences. A survey for the justice sector’s long-term insights report found a plurality (47%) of New Zealanders saying imprisonment is being used “too little”.

In a regulatory assessment of Three Strikes 2.0, Ministry of Justice officials challenged whether longer sentences would boost public confidence. “The continued decline in public confidence in New Zealand’s justice system, despite increasing rates of imprisonment, suggest that harsher penalties for offences do not increase public confidence.”

Asked if he had asked for any research into whether the measures he announced today would increase public confidence in the justice system, Goldsmith said he hadn’t, but law and order was the second most important issue on voters’ minds during the election campaign.

“We’re confident in the direction that we headed in.”

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.