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Overreach and constitutionally challenging: National’s sentencing policy comes under fire

7 Jul 2023

| Author: Reweti Kohere

Parliament will upset the “delicate balance” separating the legislature from the judiciary if it passes National’s proposal to cap at 40% the overall sentencing discount judges can give, says a legal academic.

“Strictly speaking, of course, Parliament can do what it likes,” says Associate Professor and AUT Law Dean Khylee Quince (Ngāpuhi, Te Roroa, Ngāti Porou and Ngāti Kahungungu). “But the delicate balance of separation of powers is protected by judicial independence from unnecessary Parliamentary incursion into its decision-making function.”

Others LawNews has spoken to criticise the policy for falling well short of good legislative practice and reflecting a misunderstanding among politicians and the public of how nuanced and personal the sentencing process is.

Should National win this year’s general election in October, it has promised to restore “real consequences for crime” by stiffening sentences while redirecting support toward victims and granting remand prisoners access to all rehabilitation programs.

Among National’s proposals is limiting judicial discretion by amending the Sentencing Act 2002 to include a maximum discount of 40% on the adjusted starting point of a sentence.



New Zealand follows the common law model of sentencing, where Parliament prescribes the types of sentences and maximum lengths available for offences. Guided by the purposes and principles under the Act, appellate guidance and precedent, and the aggravating and mitigating circumstances of both an offender and the offending, judges are afforded significant discretion to dispense justice that meets a case on its own terms while ensuring, as much as possible, like offenders are sentenced alike.

Quince says any significant shift in this arrangement challenges the checks and balances underpinning the independent running of Parliament, the executive and the judiciary. “Limiting judicial discretion to the extent proposed is an overreach of Parliamentary power. Judges are there to judge – they are not and should not be technicians. They are making human assessments on the basis of expertise and experience as well as precedent and submissions.”

National’s policy oversteps this customary arrangement and is illogical, she says. For instance, the “three strikes” law, whereby offenders faced increasingly severe sentences if they continued to commit serious crimes, arguably had a logical footing as it was connected to repeated and serious violent offending. National has proposed to place it back on the statute books after Labour repealed it in 2022.

By contrast, the 40% ceiling isn’t tagged to a particular type of offence, says Quince, who claims it will nonetheless have an impact on offenders whose individual circumstances may have shaped their culpability. The constitutional challenge the policy poses comes from the restriction itself, rather than the way it might be implemented, she says. “Parliament doesn’t give the judiciary discretion – it merely affirms it on the basis of our constitutional arrangements, particularly the doctrine of separation of powers.”


Can do, but should they?

Former Auckland District Court judge David Harvey says legislative supremacy is why he doesn’t believe National’s policy threatens New Zealand’s constitution.

In passing the three strikes law in 2010, Parliament fettered judicial discretion by introducing a mandatory sentencing regime for almost all major violent and sexual offences. And the legislature can do it again. “Whether or not we think they should is an entirely different question,” says Harvey, who notes the task of amending a sentencing statute and its interlocking provisions will prove difficult.

Armed with appellate guidance on how to deal with the list of aggravating and mitigating factors contained in s 9, judges invoke the relevant purposes and principles (contained in ss 7 and 8, respectively) for sentencing the offender and then start with a sentence mirroring their culpability and the seriousness of the offence.

Uplifts and discounts, represented as percentages and reflecting any relevant aggravating or mitigating features of the offence, are taken into account when reaching an adjusted starting point. From there, the guilty-plea discount may be applied alongside adjustments for personal mitigating or aggravating circumstances. The court then steps back and looks at the sentence in the round, Harvey says.


Hard decisions

This process is the judiciary’s answer to making the Act work transparently and as intended, Harvey says. But the subtleties of the interlocking provisions aren’t well understood by the public. “They just see a 10-year starting point, a two-and-a-half-year finishing point [and ask], ‘Whoa, what happened? These judges are too soft’. But, you see, the fact of the matter is: that’s why we have judges. We entrust our judges to make the call on behalf of society

“One of the things that was pointed out to me when I started judging was [that] you’re in a job where you’re doing something that people don’t like to do – and that is making decisions, and making hard decisions that are going to affect people’s lives,” he says. “That’s what judges are appointed to do. Yes, it may appear to be mysterious or arcane or bizarre. Some of the outcomes may look that way. But if Joe Public looked at the sentencing notes and worked through them, [the outcome] may be better understood rather than [from] some outraged news report.”

National’s justice spokesperson Paul Goldsmith disagrees with claims that the policy is a constitutional overreach, and says the function of making law sits squarely with Parliament. “We think that judicial discretion is important, but we have noticed over recent times much more substantial discounts being delivered. And we are reflecting widespread community concerns about that and seeking to limit that.

“We think that’s justifiable in Parliament’s legislative capability and ultimately we’re accountable for it. The people of New Zealand will decide if they think this proposal is limiting it too far; they’ll vote accordingly,” Goldsmith says.


Trust and confidence

In an election year, where dog-whistle issues such as law and order are exaggerated, political parties will advance interpretations of events that favour their point of view, Harvey cautions. But that leaves judges exposed to criticism and unable to defend themselves, including claims that they’re too soft in sentencing offenders.

“It was Alexander Hamilton who said that of the three branches of government, the judiciary was effectively the weakest: they don’t have the power of the purse, they don’t have the power of the sword. The only thing they have is the trust and confidence of the public that they’re doing the right thing,” Harvey says.

“On the face of it, the judges can’t say anything for a whole lot of reasons, not the least of which is that you don’t respond to that type of criticism at the best of times and you certainly never respond to it in the middle of an election year…This isn’t a pro-National or pro-Labour or anti-National or anti-Labour issue. For me, it’s more a matter of the integrity of the judicial process and of the sentence.”

Sentencing is a “highly individualised” process: the circumstances relevant to one offender might not apply to another. Harvey says cases must be dealt with on an individual basis and only through their judgments, handed down “without fear or favour, affection or ill will” as per the judicial oath, can judges speak.

“You’ve got to try and be fair if you possibly can. The best thing you can say about a judge is that they were fair. That’s what you strive to be. Something like mandatory limits to discounts fetters a judge’s ability to be fair. And you start getting to the point where whatever public confidence may have been eroded by the apparent nature of soft sentencing also starts to get eroded because judges seem to be unduly harsh.”

When asked if the “widespread community concerns” could have an impact on the public’s confidence in the judicial system, Goldsmith says there’s still strong support for the rule of law. “There’s always, quite rightly, a debate around any legislation that infringes upon judicial discretion…But ultimately, Parliament can do it. People will naturally argue about the merits of [the policy]. And there’s a strong case in this case.”


Robust enough

Auckland University Law Professor Mark Henaghan says the policy isn’t strictly breaking any constitutional principles, but it does fall short of good practice. “You have to trust your judges, who sit there day in and day out and see all the different ways that people come before them. They always need some discretion because individual circumstances can vary quite a lot.”

The law shouldn’t be used to make political statements as they don’t necessarily lead to justice for everyone, he says. “It ends up with a political statement to those who like that particular political leaning. The law is about the whole of society, not just about the government in power. That’s why it creates problems in terms of its application, in terms of its ability to achieve justice.” The perception that judges are too soft on crime has been around for a long time, says Henaghan, who remembers reading media reports as a student about “mild” sentences being handed down for serious offending.

“It’s always been like that to some degree because serious crime is horrific and absolutely devastating for anyone who’s involved. That reaction is an important part of the justice system. There’ll always be that tension. “It’s healthy to have healthy debates on these things. Being tougher – is it going to make a difference? Judges are robust enough to take criticism, but they also need to make sure their judgments are clear about what the reasons are for the sentencing,” he says. “They very much do know. And it does vary between judges. We don’t get total consistency but, on the other hand, each judge is trying to do the best within the confines.”


Striking a balance

Asked how National settled on the 40% ceiling, Goldsmith says the figure strikes a balance between maintaining judicial discretion beyond allowing a discount for a guilty plea and sending a signal “that we no longer feel comfortable with open discretion, [having seen] some of the very large figures that have been recorded recently”.

National cites three case studies of sexual offending in its policy document as examples of “clearly unjust outcomes” resulting from sentencing discounts that exceeded 40% – and in one case totalling 85%. Accompanying footnotes refer to related media reports of the sentences. Nowhere are there links to the sentencing judgments or explainers of how the judges worked through the sentencing process.

In two of the case studies, a sentence of home detention was available to the court after discounts were applied to the adjusted starting point, which made them fall below the 24-month threshold for a short-term prison sentence. Goldsmith says removing home detention as an alternative was considered, but the party decided not to proceed with it. “We recognise that home detention may be an option that works better for those relatively lower-level sentences, so we wanted to retain that flexibility.”

The Minister of Justice, Kiri Allan, has criticised the policy as an “egregious overreach”, telling RNZ the Act is fit-for-purpose and politicians shouldn’t impinge on the judiciary. “The trust that we must have in those frontline judicial officers – that they know their job best, they know what they’ve been charged to do. And where I think Mr Luxon took it a step too far is essentially saying that we politicians know better than the judiciary,” she said. ■

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