17 Nov 2022

Sentencing discounts benefit offenders while punishing victims, advocate says

12:30 pm on 17 November 2022

Photo: RNZ / Dan Cook

A victim's advocate is describing sentencing discounts for offenders as a courtroom "lolly scramble" that lets survivors down and offenders off the hook.

There was a widespread outcry when Tauranga teenager Jayden Meyer was sentenced to nine months' home detention for raping four women and sexually violating another.

Within an hour of the case going public, private victim's advocate Ruth Money was on the phone with two survivors who were asking her, 'why am I bothering?'.

"When they see a sentence like that handed down to such an abhorrent crime, sadly, it does discourage people," she said.

It's not clear how the judge reached a sentence of home detention in this case but law academic Debra Wilson has said Meyer's young age was likely a mitigating factor.

Money said this type of case, where a young serial rapist was sentenced to home detention, was more common than people might think.

"I had one very similar in April and it's not just one or two cases, there are plenty of cases that happen on a daily basis in courts around Aotearoa where the justice system fails survivors."

At the end of last month, National Party justice spokesperson Paul Goldsmith raised his concerns about the case with Justice Minister Kiri Allan during Question Time.

"Is [the minister] worried that a well-publicised sentence of nine months' home detention for a conviction of four rapes will discourage young women in New Zealand coming forward?"

Allan replied, "absolutely", before speaking to various measures the government was implementing, from increased funding to law changes to improve victims' experience in the justice system.

Goldsmith has been questioning whether this is enough; arguing the current sentencing regime that allows for multiple discounts for an offender is too flexible and lenient.

"If the message is as in the recent case that a young man can rape four women and end up not in prison but on home detention I don't think that's the right message and I think most New Zealanders would agree."

He said National was now considering changing the sentencing process to limit the discounts people could get.

This might look like making some discounts like 'youth' or 'remorse' one-offs and establishing a hard discount cap to restrict how much sentences can shrink.

This could include factors like youth or remorse being unavailable for reoffenders and hard caps on how much a sentence can shrink.

"There are good arguments for discounts ... but where it becomes difficult is if you get multiple discounts, one on top of the other, and the outcome being so far removed from the original, then we know we have an issue," Goldsmith said.

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National is looking at changing the sentencing process to limit the discounts people can get, Paul Goldsmith says. Photo: RNZ / Samuel Rillstone

The ACT Party wants to see the end of cultural reports, ordered under Section 27 of the Sentencing Act, which often qualify an offender for a discount on account of their background.

Its justice spokespeson Nicole McKee said victims were being left out in heavily discounted sentences.

"I think it's really important that our judiciary has independence to make decisions on individual cases but when we start seeing 10 to 30 percent discounts for criminals based on their upbringing, rather than the crime they're committed and the effect it's had on a person or wider community then I think we have a disconnect there."

Money said discounts should be reviewed, agreeing it was the cumulative effect of sentencing discounts that led to outcomes that appeared out-of-step with crimes.

"It feels a little bit like a lolly scramble where discounts are just thrown around the coutrooom; remorse, first time offender, a Section 27 report that means the offender gets more discount for his or her background.

"And then all of the sudden the victim's sitting there saying, 'why did I bother?', and 'it certainly doesn't feel fair'."

Allan, a lawyer herself, said while she was always looking to improve the system it was never designed to right wrongs.

"If you go into the justice system seeking the inverse, the righting of a wrong, I don't know that our justice system has ever been geared to do that.

"Are we expecting that the harm done within the community is righted through our court process? I don't know whether that is actually possible."

Allan pointed to the work the government was doing to "turn the tide" on victims' experiences in the justice system and said while people were right to expect more from the system, she wouldn't be rushing any law changes.

"The question I'm always asking myself with any decision we ever make is, is the consequence of the law we're changing ultimately going to bring about better outcomes, or longer term harm?"

Kiri Allan

Kiri Allan says she won't be rushed into law changes. Photo: RNZ / Samuel Rillstone

Both Money and Goldsmith argued this "longer term harm" was happening now - to victims.

They pointed out no one was arguing for an end to all discounts; but a system that applied them consistently and in a way that did not put victims off from taking part in the justice process.

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