Justice Minister Paul Goldsmith announcing the Government is moving forward with coalition promises for longer sentences. Video / Mark Mitchell
The National-NZ First coalition agreement committed to ending concurrent sentences for offences committed while on parole, bail, or in custody.
The Ministry of Justice estimated this could double the prison population, so the Government has opted to ‘encourage’ ending concurrent sentences as a first step.
Justice Minister Paul Goldsmith has previously said the Government would still honour the coalition commitment during this parliamentary term, but last night he said: “We’ll see.”
Honouring a National-NZ First coalition commitment could put an additional 10,000 people in prison for mostly minor offences, more than doubling the prison population in what Ministry of Justice officials describe as “not a feasible option”.
The estimate is contained in the ministry’s regulatory impact statement (Ris) on the suiteof sentencing reforms that Cabinet has now signed off, with a bill enabling them to be introduced to Parliament this week.
Measures include capping sentencing discounts at 40%, limits on discounts for youth and remorse, a sliding scale for pleading guilty, and “encouraging the use of cumulative sentencing for offences committed while on bail, in custody, or on parole”.
This latter measure falls short of the National-NZ First coalition commitment: “Removing concurrent sentences for those who commit offences while on parole, on bail, or whilst in custody.”
He wouldn’t reveal the estimated impact of requiring cumulative sentencing, but this is contained in the ministry’s Ris.
“Modelling shows that if each individual offence committed on bail, custody or on parole was to be sentenced cumulatively, with no adjustment for totality, this would result in more than 10,000 additional people being sentenced to imprisonment [after 10 years], with most of these having committed only minor offences,” the Ris said.
This would have an annual cost to Corrections of more than $1 billion, based on $120,000 per prisoner, which excludes the costs of building more prisons.
“Such an approach would result in unmanageable increases to the prison population, severely disproportionate sentencing outcomes, and almost certainly engage section 9 [the right not to be subjected to torture or cruel treatment] of the NZBORA [Bill of Rights Act],” the Ris said.
“Removing the ability to impose concurrent sentences is inconsistent with broader sentencing policy, which relies on judicial discretion and case law to determine adequate sentencing outcomes.”
The prison population at the end of June was 9638, so a mandatory requirement would more than double it, exceeding the forecast capacity for prison beds. The Government has allocated funding for an 810-bed extension to Waikeria prison estimated to come online by 2030, which is in addition to the roughly 600 more beds – due by 2025 – that Labour announced in 2018.
Justice Minister Paul Goldsmith acknowledges the scenario in modelling by the Ministry of Justice is untenable. Photo / Mark Mitchell
Goldsmith last night acknowledged the scenario in the modelling was untenable.
“That’s why we didn’t go for the strict rule that cumulative sentences should always be imposed,” he told the Herald.
But what about the coalition commitment?
“We’ll see how this first very significant step works [encouraging, not requiring] and then we’ll take it from there. We’ll be looking more closely at those consequences [for requiring]. We’ve got a year or two to interrogate that further, and then make further decisions down the line.”
61% of assaults on prison officers led to no extra prison time
The policy is something NZ First campaigned on last year, and is a nod to the long-standing NZ First policy to ensure consequences for those who assault prison officers. The union for prison officers has raised concerns about no additional time being added to the sentence of those who assault its members.
Currently judges have discretion in sentencing, including concurrent sentencing for multiple offences committed by one offender. The principle of totality is meant to ensure that sentences are not out of proportion to the gravity of offending.
Concurrent sentences are generally imposed when multiple offences are similar, such as for a spree of burglaries. It doesn’t necessarily mean there is no punishment for lesser offences. The lead offence is the starting point, and the sentence can be lengthened based on the lesser offences, and with regard to totality.
Ministry analysis showed:
35% of all sentences were cumulative in 2015/16, dropping to 19.5% in 2021/22.
Of all those imprisoned in 2019 who offended while in custody or on parole before the end of their first sentence, 63% were sentenced cumulatively, which added time to the sentence.
In 33 cases where subsequent charges included assaulting a prison officer, 20 were imposed concurrently, with no additional prison time.
The Ris said mandatory cumulative sentences would make sentencing more complex, which could significantly drag out court timeliness, an area Goldsmith is focused on improving.
Cabinet decided to adopt guidance that cumulative sentences should be imposed, which the ministry said could add 270 additional prisoners within a 10-year period, costing Corrections $30.3m a year.
Ministry slams other measures
The Ris, dated May 30, showed the ministry preferred the status quo to most of the Government’s proposals including:
Capping the sentence discounts that judges can apply at 40% (the ministry said this was “arbitrary” and would “prevent legitimate mitigating factors” from being taken into account; it supported Cabinet’s decision to provide an “unless manifestly unjust” clause).
Preventing repeat discounts for youth (18 to 25) and remorse (the ministry noted “strong evidence” about brain development in young people, while limiting remorse could disincentivise offenders from addressing the harm they’ve caused).
Introducing a new aggravating factor to address offences against sole charge workers and those whose home and business are interconnected (the ministry said the law already allowed judges to account for the vulnerability of certain victims).
Amending the principles of sentencing so a judge has to take into account the victims’ interests (the ministry said sentencing laws already accounted for victims’ interests, and the impact of the offending on the victim).
The ministry “generally supported” encouraging cumulative sentences for offences committed on parole, bail or in custody, as well as a sliding scale for guilty pleas as long as it wasn’t too prescriptive, maintaining judicial discretion.
The estimated annual cost of these proposals after 10 years would be up to about $150m, resulting from an estimated 1350 more prisoners.
The sentencing reforms propose restricting judicial discretion. Photo / 123rf
The ministry had limited time to consider the proposals, but consulted with a representative from the judiciary, the NZ Law Society, the Chief Victims Advisor, the Parole Board and the Public Defence Service.
“Stakeholders noted their concerns with unintended consequences arising from restricting judicial discretion in favour of tougher sentences, including unjust outcomes,” the Ris said.
“The feedback also pushed back against the notion that sentencing outcomes have become more ‘lenient’. Instead, judicial sentencing decisions respond to emerging evidence (for example, in response to an increased scientific understanding of adolescent brain development).”
But the Chief Victims Advisor noted victims were often upset that “the time didn’t fit the crime”; 68% felt justice had not been served in their case, despite 86% of cases resulting in a guilty verdict and 52% resulting in imprisonment.
Insights into sentencing trends, discounts
The Ris said the imprisonment rate dropped from 13.2% to 10.7% from 2019/20 to 2020/21, while the proportion of offenders on restrictive community-based sentences increased from 12.7% in 2013/14 to 20.8% in 2020/21.
There had also been a decrease in the use of imprisonment for serious offences:
The imprisonment rate for burglary offences with a maximum penalty of 10 years fell from 50% in 2016/17 to 39% in 2022/23;
The imprisonment rate for robbery offences with a maximum penalty of 14 years fell from 74% to 58% over the same period;
The average custodial sentence imposed for robbery reduced from 3.6 years in 2016/17 to three years in 2022/23.
This could be partly due to the increase in the use of cultural reports, which have seen an average discount of 10%; the Government has withdrawn public funding for cultural reports.
Officials reviewed 190 District and High Court cases: 18% of cases received a total discount greater than 40%, the largest being 69.4% (11.1% for the time spent on electronic bail, 50% for youth, and 8.3% for rehabilitation).
The average discount for remorse was 8%, while for youth it was 11.5%.
“Limitations on youth and remorse discounts will inevitably impact Māori offenders,” the Ris said.
“Based on sentencing patterns from 2019 to 2023, 52% of Māori young adults who received a prison or high-level community sentence would not be eligible for a youth discount. In the same time period, 75% of Māori offenders who received either a prison or high-level community sentence would not be eligible for a discount for remorse compared to 62% of non-Māori.”
The sample included 48 defendants who pleaded guilty while awaiting trial. Half of them received a 25% discount, while a quarter received a 20% to 23% discount.
Of the 13 that pleaded guilty at trial, only one did not receive a discount.
“Based on sample data, it appears that a significant number of offenders are receiving relatively large discounts for early guilty pleas well into the court process.”
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.
