The Sentencing (Reform) Amendment Bill 2024, which had its first reading on 24 September 2024, proposes to:

1. give priority to the needs of victims and communities over offenders
2. include a victim working sole charge, or where a victim’s dwelling adjoins a targeted business, as an aggravating factor in sentencing
3. cap sentence discounts at 40 per cent [with a supplementary proposal from the Minister of Justice to introduce a sliding scale for early guilty plea discounts]
4. prevent offenders from receiving sentence discounts for youth or remorse more than once, and
5. remove concurrent sentencing for those who commit offences while on parole, on bail or whilst in custody.

These reforms will inevitably increase the prison population and keep prisoners there for longer. The Statement estimates that the total cost after 10 years will be approximately $150 million, resulting from the addition of approximately 1,350 to the prison population (the total prison population as at 30 June 2024 is 9,638). There is a good summary of the ‘moral and fiscal failure’ of prisons in this context in a recent piece by Professor Kris Gledhill.

In this post I focus on the proposal to cap sentence discounts at 40 per cent.

Nowhere is it made clear why 40 per cent has been nominated as the limit for mitigating factors. It appears that this number ‘feels right’ as a limit on judicial leniency.

How it applies

The Court of Appeal set out the approach to calculating sentences in criminal matters in Moses v R [2020] NZCA 296. This decision set out a two-step methodology:

1. the first step, following R v Taueki [2005] 3 NZLR 372 (CA), calculates the “adjusted starting point”, incorporating aggravating and mitigating features of the offending;
2. the second step incorporates all the aggravating and mitigating factors personal to the offender, including any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.

The Court of Appeal then said that “the court fixes all second-step uplifts and discounts by reference to the adjusted starting point under this methodology.”

This means that sentencings should follow a structure as follows:

1. arrive at the adjusted starting point;
2. apply any discounts to that starting point (this is the part that is proposed to be capped at 40%);
3. then add to the discounted adjusted starting point any uplifts for aggravating factors personal to the offender.

(I have written more about sentence calculation here.)

“Manifestly unjust” caveat

The Court would only be able to depart from the cap to prevent “manifestly unjust” outcomes.

Sentencing Judges will need to record in their sentencing notes both the capped and uncapped sentence as a reference point for any subsequent appeals. This will make sentencing more complex and it is likely to be an option that is employed frequently, particularly in view of the Sentencing Act’s mandatory requirements to impose the ‘least restrictive outcome’ (s 8(g)); ‘take into account any particular circumstances of the offender that mean that a sentence … that would otherwise be appropriate would, in the particular instance, be disproportionately severe’ (s 8(h)); ‘take into account the offender’s personal, family, whanau, community and cultural background in imposing a sentence … with a partly or wholly rehabilitative purpose’ (s 8(i)); and, ‘take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur’ (s 8(j)).

There is also a long list of mandatory mitigating considerations at s 9(2) of the Act. It is entirely unclear how factoring these in properly can be reconciled with an arbitrary limit to the total percentage that can be allocated.

Regulatory impact

The Ministry of Justice (“MoJ”) Regulatory Impact Statement (“the Statement”) observes that ‘[b]road limitations on judicial discretion and blanket limitations on sentence discounts are inconsistent with the purposes and principles of sentencing, which require that the sentencing judge takes account of all the relevant circumstances of a case. Some of the planned law changes also present potential inconsistencies with the New Zealand Bill of Rights Act (NZBORA), for example due to the risk of disproportionately severe penalties’ and that ‘[a] more evidence-based approach, which addresses concerns about leniency in relation to specific offence types, would have greater legitimacy from a rights perspective.’

Because of the manual nature of searching sentencing decisions to analyse discounting trends, MoJ officials instead reviewed 190 District and High Court cases that concluded in 2021 and 2022 to divine sentencing trends. This showed that 18 per cent of cases received a total discount greater than 40 per cent. The largest total discount was 69.4 per cent, which consisted of: 11.1% for time on EM bail; 50% for youth; and, 8.3% for rehabilitation.

Feedback from the judiciary raised potential unintended consequences, including:

1. prescribing the sentencing process in legislation creates the risk of more appeals based on incorrect procedure, which could lead to a need for additional court resources; and
2. potential constitutional issues may arise from interfering with the exercise of the judicial function in individual sentencing decisions.

Time on EM Bail

The Ministry proposes that, if the proposal proceeds, ‘the cap specifically excludes section 9(2)(h) “that the offender spent time on bail with an EM [electronically monitored] condition.”‘ This makes sense because it recognises the restrictive nature of this type of bail and given that the period of time on EM bail is determined by time on remand – a factor that is often beyond the control of the defendant – including EM bail could result in cases exceeding the cap without accounting for other mitigating factors.

Conclusions

My clients routinely, and unsurprisingly, ask what their sentence is likely to be if they plead guilty to charges rather than going to trial. If I have to advise them that a sentence of imprisonment is more likely, and will be for longer, than it would have been previously, more of them will opt to go to trial rather than plead guilty. This calculation is the reason why we have discounts for guilty pleas and other mitigating factors; capping them will only add to the strain on an already stressed system.

In short: this proposal is a blunt instrument, creating an internal contradiction within the Sentencing Act, that will manifestly fail to allow for the multifarious fact scenarios and types of defendant that only broad judicial discretion can take into account; it appears to be the product of a politics of catharsis rather than a reasoned approach to how to achieve the most appropriate sentencing outcomes.