Justice Minister Paul Goldsmith on reducing court delays as Government key priority

Justice delayed is justice denied: 500 days for a jury trial, 18 months for victims of serious crime for their day in court. The new Government is taking a laser focus on improving the timeliness of the system, but some of the options could undermine judicial discretion and lead to a greater risk of innocent people pleading guilty. Senior writer Derek Cheng investigates.

Setting greater rewards for early guilty pleas into law is one of several changes the Government is considering to tackle long delays in the court system, Justice Minister Paul Goldsmith says.

But this could raise concerns about unduly restricting judicial discretion, and creating the wrong incentive for innocent people to plead guilty - especially if that meant avoiding or minimising jail time.

In a pre-Christmas interview with the Herald, Goldsmith raised the issue in outlining one of his key focuses for the sector: cutting the amount of time it takes for a case to go through the courts.

“There are many instances where people have been subjected to a violent sexual crime, for example, and are now on average waiting 18 months before the trial even starts,” he said.

“In the last five years, the average number of days to dispose of a criminal case in the District Court has gone from 114 to 176 days, and for a jury trial in the District Court, it’s gone from an average of 349 to 498 days. It’s just too long.”

One of the main drivers has been people pleading guilty later in the process.

“One of the suggestions put to me is the rule of thumb that you get a 25 per cent discount for pleading guilty, even if it’s the night before [trial],” Goldsmith said.

“There’s a good argument to say maybe you might get that 25 per cent if you plead guilty early in the case, but if it’s the night before, it might be something less than 25 per cent. That would require legislative change.”

Justice delayed is justice denied. Justice Minister Paul Goldsmith says it's taking too long for cases to go through the court system. Photo / Mark Mitchell

Delays because of Covid-19 made things worse - jury trials were suspended in the Auckland High Court during lockdowns - but court timeliness has been an issue long before the pandemic.

A more efficient system not only eases pressure on everyone in the justice process - including judges, lawyers and witnesses, as well as legal aid services - but it would also be kinder on victims and their families.

“It will enable people to get on with their lives, and enable victims of crime to get closure,” Goldsmith said.

“All my messages with the justice sector in the first couple of weeks have been to get some structures in place whereby we can get all the players together on a regular basis with a plan, with targets, and a focus on more timely justice.”

The timing of a guilty plea is one of the mitigating factors a sentencing judge has to consider under the Sentencing Act, but what that means in practical terms is left to the judge.

There is legal precedent - in a Supreme Court decision in 2010 - for an early plea to be rewarded by a discount of up to 25 per cent, depending on all the circumstances of the case.

In general, that would apply if the plea came at the earliest reasonable opportunity, while 10 per cent might be used if it came at the start of a trial, or even during it.

But Justice Ministry-commissioned focus group research in 2021 - described as illustrative rather than representative - suggested that the 25 per cent discount was being used regardless of how far the case had progressed.

Putting specific discounts into legislation would put greater restrictions - or give more specific direction, depending on your point of view - on judicial discretion, but at the risk of perverse outcomes.

Research in Canada, for example, has shown innocent people pleading guilty to avoid spending time in jail on remand, where living conditions were poor and they were isolated from family.

“We’ll be working our way through all that in a considered manner - but with some urgency as well,” Goldsmith said.

The court system has become more and more clogged as guilty pleas are entered later and later in the process.

It is one of 25 possible ways Goldsmith is looking into to improve timeliness.

Others include a workforce boost - there is currently a major shortage among Corrections staff - and the ongoing digitisation of the court system.

“It’s about each part of the system being ready, whether it’s the police, the prosecution, the Corrections Department getting the right people in the right place, whether it’s the Ministry of Justice, whether the wifi’s working, whether we’ve got the rules right around legislation,” he said.

“If the smallest pipe’s holding up the system, it doesn’t matter if everything else works. The whole system grinds to a halt.”

Goldsmith said there will be targets for how long it should take for a case to go through the courts but these are still being developed. The ministry will have to try and meet those while also looking for about $60 million in savings as part of the Government’s drive to slim the public service.

Other justice priorities, as signaled during the election campaign, were boot camps for serious young offenders and “real consequences for serious crime”.

Prime Minister Christopher Luxon is adamant the boot camps will be better than what happened under the previous National Government, when the 12-month recidivism rate was 86 per cent.

And Goldsmith cited a suite of measures to support “real consequences for serious crime”, including anti-gang laws, a new Three Strikes law, and a cap on sentencing discounts, while enabling remand prisoners to access rehabilitation programmes.

Christopher Luxon and National propose a military-style boot camp for youth repeat offenders, rather than looking at the long-term history of poverty. Cartoon / Rod Emmerson, November 18, 2022

Goldsmith flexes ministerial muscles

It’s not a new whip for the Government to crack. “Court timeliness” is something that has been identified in each of the justice sector’s last three annual projections report.

“There have been three main drivers to increased court delays: people pleading guilty later in the criminal court process, more adjournments as parties are not prepared to proceed at their court event, and more people electing jury trials which generally take longer to resolve,” says the latest report, which looks at 2022-2023.

Efforts to improve this - in the Criminal Process and Improvement Programme - by cutting unnecessary court events have been ongoing for many years.

The previous Government was also looking into more incentives for earlier case resolution, including more money for police prosecutions, and requiring police to give defendants more information earlier on. It also wanted to shift when defendants can elect a jury trial to later in the process, which was aimed at discouraging such trials.

But Goldsmith said the previous Government was too focused on other justice issues, and the importance of reducing court delays hadn’t had enough ministerial heft behind it.

“There is a lot of power in the minister making it clear this is one of the Government’s key priorities, and we’re going to hold you to account every month on progress towards doing that.”

Later guilty pleas have contributed to an increased workload in the District Court since 2015, despite fewer cases. The same proportion of defendants are pleading guilty as in 2015, when 60 per cent pleaded guilty in the admin stage. By 2020, this had dropped to 50 per cent.

The Justice Ministry’s research and evaluation team did a review of the New Zealand research in 2020, but found no clear answers.

“No New Zealand research explains the increased incidence of later guilty pleas, rather a variety of sources of varying merits have been identified suggesting potential influences on the timing of the plea,” says the review, titled The Phenomena of Late Guilty Pleas: The New Zealand edition.

Potential factors included “running down judicial resourcing”, more defendants representing themselves in court, financial incentives for a longer process - the more court events, the higher the legal aid fees - and an “adjournment mentality”.

The latter is seemingly encouraged by the 2011 Criminal Procedure Act (CPA), which was meant to lead to more cases closing earlier by encouraging lawyers from both sides to discuss alternative resolutions. In reality, it had created a “‘tick box’ effect on prosecution and defence ... ultimately creating adjournments”.

There was also a dearth of New Zealand-specific research, and the review called for those gaps to be filled.

Avoiding jail time is one reason why a person might enter an early guilty plea - even if they are innocent. Photo / 123RF

Lawyer mentality to ‘let things drift along’

The ministry then commissioned focus groups in 2021, which included police prosecution, Crown prosecutors, NZ Police, court registry officers, and private and public defence lawyers.

“The participants in this research were clear that there are few rewards for early guilty pleas,” said the report, by Research First, which said the results were illustrative but not necessarily representative.

In theory, earlier pleas should lead to larger discounts up to 25 per cent, but “in practice these sentencing discounts are available at any stage in the proceedings (in some cases up to the day before the trial)”.

The report found several factors outside judicial discretion that were having an impact on later guilty pleas.

One was lawyers lacking enough information to make early plea recommendations. Another was a perception that cases might weaken over time, so it was seen as beneficial to drag them out and see what happens.

“As a result, as one of the lawyers in the Manukau group put it: ‘You would never find a lawyer who would recommend [pleading guilty early].’ This emerging default approach is compounded by the workload pressure,” the report said.

A lawyer in Christchurch told researchers that there was too much work, so it was convenient for both sides to “let things drift along ... pleading guilty later is one way they can do this”.

Like the review of NZ research, the report identified financial incentives in legal aid cases that take longer to resolve, and unintended consequences with the CPA.

It did not look into specific cases where a 25 per cent discount was applied late in the process, and whether it might have been justified.

The NZ research review said there was no available research on this, and it would take a deep dive into judicial sentencing notes to see how judges were applying discounts, and whether it was having an impact on when a guilty plea is entered.

People pleading guilty later in the process is one of the main drivers of court cases taking longer and longer. Photo / 123RF

The review also considered more prescriptive regimes in Australia; New South Wales, for example, provides a 25 per cent discount for a plea entered more than two weeks before trial, reducing to 5 per cent thereafter.

“Initial evaluations seem to suggest that the discount, when scaled against the time plea was entered, appears to increase earlier guilty pleas,” the review said.

But it came with a warning, too. 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.

In other words, those who were stuck behind bars had much more incentive to plead guilty than those who were already out.

‘Unprincipled’ pressure to plead guilty

Legal precedent for how early guilty pleas should be considered in New Zealand is set down in a 2010 Supreme Court decision.

Three days before trial, Raymond Everest Hessell pleaded guilty to charges of sexual misconduct with a person under 16. A co-offender had pleaded guilty to similar charges six months earlier.

“You cannot expect any significant credit for your guilty pleas in these circumstances,” the High Court Judge said during his sentencing in 2009. “I allow a credit in the region of 10 per cent.”

Hessell appealed, arguing his guilty plea should have led to a greater discount. The Court of Appeal set out a prescriptive regime of a 33 per cent discount for a guilty plea at the “earliest reasonable opportunity”, 20 per cent if it came at the first callover, and 10 per cent for a plea within three weeks of the trial.

It also said that the sentencing judge shouldn’t consider certain factors such as remorse (because it was generally inherent in a guilty plea), or the strength of the case against the defendant (because it was unnecessarily demanding on judicial resources, given how the main benefit of an early plea is freeing up those resources).

In a subsequent appeal, the Supreme Court rejected these arguments in favour of wider discretion. “Remorse” is specifically referenced in the Sentencing Act as a mitigating factor in its own right, separate from when a guilty plea is entered.

And 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 Supreme Court criticised the Court of Appeal for changing sentencing policy without a legislative mandate to do so. Photo / Hazel Osborne

The Supreme Court said all the circumstances of the plea should be considered, not just when it was entered.

It drew a line in the sand: 25 per cent was the upper limit for a sentencing discount for an early guilty plea, though further discounts could be applied for other mitigating factors, including remorse.

There should also be latitude in defining the “earliest reasonable opportunity” to plead guilty, while a discount for a very late plea might also be warranted in certain circumstances.

“Late pleas, entered even a week or less before trial, still attract generous discounts. Some judges are said to consider it unrealistic to expect pleas to serious charges on the basis of initial disclosure.”

The Court of Appeal had effectively overstepped by changing sentencing policy without any legislative direction to do so. And in doing so, it had created “the unacceptable risk” of innocent people pleading guilty.

“Judges should show restraint in moving beyond the area mandated by existing legislation when exercising their sentencing powers. The ultimate difficulty we have with the Court of Appeal’s approach is that it is not mandated by the Sentencing Act,” the Supreme Court said.

That approach would have been fine if, for example, it was in response to a law change.

Issues with court timeliness mean victims of serious crimes are now waiting 18 months for their day in court.

‘Judicial activism’ - Are judges getting it wrong?

If the Government decides to legislate a more prescriptive regime for early guilty pleas, the message would be that judicial discretion isn’t working and needs to be tweaked.

It wouldn’t be new territory; the Government is already moving in this direction with its plan to cap the maximum sentencing discount a judge can give at 40 per cent.

This policy was given renewed impetus in the case of Matua Reid, who shot and killed two men in downtown Auckland while on home detention. In the days following the shooting, Goldsmith attacked the then-Labour Government for not restricting judges’ ability to reduce sentences.

A 40 per cent cap, however, would not necessarily have prevented Reid from being on home detention, though it might have made it less likely, or cases like it.

Judges are not infallible, and the rationale for a cap is that they’re getting it wrong in a systemic rather than sporadic way.

Are they doing this deliberately by interpreting legislation in a way Parliament didn’t intend? Or are they interpreting it faithfully, but the legislation needs changing?

These are not mutually exclusive, and in some respects, Act leader David Seymour thinks it’s both.

“Judicial activism” is how he described the judiciary’s interpretation of Three Strikes, given how the law’s “manifestly unjust” clause was being applied to circumstances that were never specified in the actual wording of the law.

And all three coalition parties believe the legislative settings are wrong because, in Goldsmith’s words, they’ve been “allowed so much discretion”.

“People who have committed serious violent crimes and serious sexual crimes end up on home detention,” Goldsmith said.

“I’m not criticising individual judgments, but I’m saying that the system at the moment allows so many opportunities for reductions in sentences so that that is the outcome.”

The answer, then, is to change the system via new legislation.

“We’re going to restrict the extent of those discounts so that people who have been convicted of very serious violent or sexual crimes face more serious consequences.”

Judicial discretion is built on the maxim that judges know best, but what if they're getting it wrong?

Asked to respond to the charge of “judicial activism” or the implication that judicial discretion isn’t working, the Office of the Chief Justice said: “The judiciary is unable to comment.”

But the counter-argument is that judges should be given a wide berth as they are best placed to make the right call. They have the expertise to use their discretion wisely, and strait-jacketing them could lead to perverse outcomes.

Might not there be a scenario where a person deserved more than a 40 per cent discount on their sentence?

The same goes for Three Strikes, the rationale for which is that judges aren’t being tough enough on repeat serious offenders. Should judges be forced to sentence someone to a seven-year jail term for a strike three offence of grabbing someone’s butt cheek?

Maybe, depending on the circumstances. Judicial discretion allows those circumstances to be factored into the sentence, instead of a judge having no choice but to give the maximum sentence. (They had discretion for parole, which could be granted if its absence was “manifestly unjust”.)

Goldsmith has already signalled that Three Strikes Part II - to be passed this parliamentary term - will be tweaked to minimise the disproportionate outcomes that plagued the law’s first iteration, though it will still be a curb on judicial discretion.

The real rub is that the buck stops with Parliament, and if Parliament decides that judicial discretion isn’t sacrosanct, then so be it.

The Government has a mandate to implement what it campaigned on. All three governing parties campaigned on harsher sentences, and all three agreed in coalition agreements to “ensure appropriate consequences for criminals”.

All three have also supported Three Strikes, with National and Act campaigning on bringing it back, while NZ First blocked Labour’s attempt to repeal it in the 2017-2020 term.

No one, however, campaigned on legislating particular sentence discounts for early guilty pleas. Given the potential for perverse outcomes, expect the Government to tread cautiously in this area.

Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the Press Gallery and is a former deputy political editor.