A retired District Court judge unpicks Christopher Luxon’s sentencing policy

David Harvey

On 25 June 2023, Christopher Luxon gave a speech to the 87th National Party Conference which included policies relating to law and order – specifically, the way courts deal with sentencing. Luxon raised four major issues and suggested changes that would be made should National become the government. What follows is a commentary on those issues. It is not to be taken as a political endorsement or rejection of one party over another. In essence, I argue that sentencing is a difficult and nuanced process, the rules for which are set out in the Sentencing Act 2002. For each issue, I shall set out verbatim what Luxon said (in italics) and follow it with my comments.

Issue 1

We’re also going to end the practice of taxpayers paying for written cultural reports about offenders’ backgrounds in an effort to reduce sentences.

This used to be rare, but this practice has morphed into a cottage industry that’s lowering sentences and taxpayers are footing the bill. There were eight taxpayer-funded reports in 2017 and more than 2400 last year. National is going to unwind this growth. Offenders will still be able to ask the court to hear from someone who knows them, but taxpayers won’t be paying for that. Section 27 of the Sentencing Act is one of a series of sections that set out sentencing procedure.

I have written three papers on s 27 – Discounting Cultural Issues (2021), Discounting Cultural Issues Revisited (2022) and Background Information and Section 27 Reports for Sentencing – R v Berkland in the Supreme Court (2023) Section 25 provides that the court may adjourn for inquiries as to suitable punishment. I should observe that the word “punishment” appears in the section description and is the only time that word appears in the Sentencing Act. Section 26 gives the court the power to call for a pre-sentence report and sets out the information such a report may contain. These reports are prepared by probation officers.

Section 27 allows an offender to request a court to hear any person or persons called by the offender to speak on a number of factors including the personal, family, whanau, community and cultural background of the offender as well as the way that background may have related to the commission of the offence. Section 27 was not new in 2002. In the Criminal Justice Act 1985, s 16 provided for similar information to be made available. The practice developed for written reports to be made available rather than an oral presentation as envisaged by s 27. There are several reasons for this. I have noted these in the articles referred to above.

One important reason is that the information about background and the causative link to offending is complex, detailed and nuanced, and judges are assisted by having written material prior to the sentencing hearing. Background reports can provide more detailed and insightful information than may be available in a s 26 probation officer’s report.

The explosion in the use of background reports developed after the case of Solicitor-General v Heta [2018] NZHC 2453. Because many offenders are on legal aid, applications are made by counsel for funding for such a report. This is where the taxpayer funding referred to by Luxon comes in. An offender can, if he or she has the resources, commission the preparation of a background report privately. So Luxon’s target is the public funding of s 27 reports.

Implicit in his comment is the suggestion that a background report automatically entitles an offender to a sentencing discount. This is simply not the case. There must be a causative link between the matters raised in the background report and the particular offending. Once that is established, the judge assesses what discount may be available. My research indicates in most cases a discount of 15% is allowed. In some cases, discounts of 35% have been allowed. In others, the discount has been as low as 5%.

What Luxon is saying is that legal aid funding will not be available for the provision of background reports. Those who require criminal legal aid are at the most disadvantaged end of the socio-economic scale. More often than not, their backgrounds are significant contributors to their offending. Luxon’s proposal would deny them the opportunity to put relevant and potentially causative material before the court in written form from an experienced report writer.

The information may still be made available in the form originally envisaged by s 27 – by means of an oral presentation. So, those who afford to privately commission a s 27 report can have their written background information placed before the court whereas those who cannot must rely on an oral presentation which may lack some of the opportunity for a judge to give careful deliberation to that material. Is that equal justice before the law?

Finally on this topic, it should be noted that s 27 is not the only provision allowing a judge to take personal or background matters into account. Section 8(i) states that in sentencing an offender the court must take into account the offender’s personal, family, whanau, community and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose.

The language of s 8(i) is directive. It would be possible for a judge to order the preparation of a report for the purposes of complying with s 8(i), notwithstanding the provisions of s 27. Section 27 provides a mechanism for getting that information before the court. Furthermore, when that information is available the court must hear it unless there is a special reason that makes it unnecessary or inappropriate (s 27(2) Sentencing Act). Thus it becomes apparent from this example alone that the Sentencing Act contains a number of interlocking provisions that underpin the sentencing process.

Issue 2

National also says that an offender will receive a reduced sentence for their youth, and for remorse, only once. You might be sorry the second time, and you might still be young, but if you’ve enjoyed a previous sentence reduction because of it, then that ship has sailed. It’s a reminder to learn from experience.

This proposal suggests the so-called “youth discount” will be available to an offender only once. The age of an offender is a mitigating factor – s 9(2)(a) Sentencing Act. Age – and youth – are not static but dynamic, at least until death. It is part of a continuum. The problems surrounding youth and the way youth can affect culpability is set out in the case of Churchward v R [2011] NZCA 531. That case emphasised that:

• There are age-related neurological differences between young people and adults. Young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults.
• The effect of imprisonment on young people, including the fact that long sentences may be crushing on them.
• Young people have greater capacity for rehabilitation, particularly as the character of a juvenile is not as well-formed as that of an adult

The court also relied on evidence that establishes developmental aspects associated with youth. Their decision-making capabilities are different from those of adults. The court observed that adolescents have less future orientation than adults, tending to focus on the “here and now” rather than long-term consequences.

Research findings suggest adolescents discount risks and calculate rewards quite differently from adults, tending to assign less weight to consequences over the immediate risk and thrill of the current challenge. This is not because adolescents are less knowledgeable about risks, but because they attach different values to rewards that risk-taking provides.

[A]ccording to developmental psychology research, the task of adolescence is primarily concerned with the formation of personal identity and, where that process is disrupted, problems often result. Identity formation concerns values, plans, attitudes, beliefs, work choices, sexual orientation and partner choices. The process of “finding oneself” tends to lend itself to experimentation which, for some adolescents in unstable environments, means engaging in risky activities. Finally, the evidence suggested that there were two primary groups of offenders: those dubbed “Adolescents Limited”, typical delinquents whose involvement in crime begins and ends in adolescence; and a much smaller group of youths labelled “Life-Course-Persistent Offenders”. This group’s anti-social conduct begins in childhood and continues into adulthood.

Luxon’s proposal is that youth could be taken into account only once. This ignores the fact that “youth” is a continuing process and the problems referred to above are not going to vanish after one encounter with the justice system. Bad decision-making and risk-taking behaviours may continue. Rehabilitation is an ongoing process and often requires years of effort to adapt to new and acceptable behavioural traits.

The “one chance only” ignores the evidence of developmental psychology and misunderstands the nature of rehabilitation as a long-term and continuing process. As the advertisement says, “it doesn’t happen overnight”.

Issue 3

We’re also going to restore the Three Strikes policy for serious offenders…. We will bring it back with clearer guidance on where judges can make exceptions – and where they can’t. The three strikes policy was contentious from the outset. It was prescriptive, arbitrary, unnuanced and harsh. It placed a significant fetter on judicial discretion at sentencing. Sections 86A – 86I of the Sentencing Act provided for a three-stage approach to sentencing for qualifying offences. For a first offence, there was a warning given. For a second offence, any sentence of imprisonment would be served without parole. For a third offence, the maximum penalty would be applied. No parole was available. The warnings did not expire. Thus, an offender may commit a second “strike” offence 10 years after the first offence and still qualify for “second-strike” treatment.

The only escape clause from the rigours of the three-strikes regime was that if the court was of the view that to impose the prescribed penalty would be manifestly unjust. On occasions, judges went to some lengths to fit a case within that rubric. It is difficult to understand what Luxon means when he says there will be clearer guidance on where judges can make exceptions and when they can’t. In the minds of many criminal lawyers, the provisions of the earlier three-strikes regime gave judges very little room to move. The only inference that can be drawn from Luxon’s statement is that the restraints on judicial discretion will be even greater.

I am not going to get into a detailed debate about the usefulness of the three-strikes regime. My view should be clear from the second sentence of this section. The Sentencing Act contains several principles and purposes, all of which have been incorporated into the sentencing process. There is considerable allowance for nuance and the ability to take individual circumstances into account. The three-strikes regime deprives the judge of the opportunity to impose a sentence tailored to the particular offender as well as providing for victim and societal interests.

Issue 4

I’m announcing today that National will impose a new limit on judges’ discretion. They will be allowed to reduce a sentence by no more than 40 per cent. Any more than that undermines the purpose and impact of the sentence and undermines the public’s faith in the courts.

The proposal to bring back three strikes is an example of fettering judicial discretion in sentencing. The final proposition to be discussed is an undisguised attack on that discretion and proposes an upper limit of 40% by way of discounts. It seems that this proposal is based on a misunderstanding of the way the sentencing discounts reflect what Parliament has directed the judges to take into account at sentencing. It also reflects a lack of understanding of the way in which the provisions of the Sentencing Act are interlinked.

Setting an upper limit on discounts will not be achieved by a couple of sentences in an amending statute. It will require a complete reconsideration of the way in which the principles and purposes of sentencing are incorporated into a sentence, along with a complete reconsideration of the aggravating and mitigating factors that should be taken into account. Other factors also come into play, including offers and measures to make amends. What is particularly confusing about Luxon’s comment is that he says anything more than a 40% discount undermines the purpose and impact of the sentence.

The whole fabric of the way in which discounts are applied in fact relies on the interlocking provisions of the Sentencing Act, starting with the purposes of sentencing in s 7. The principles of sentencing are set out in s 8. There are 10 of them.

The language mandates that the principles must be taken into account. Section 9 then directs the aggravating and mitigating factors that must be taken into account. It is within the scope of these factors that the discounts tend to come into play. For example, s 9(2)(b) says the court must take into account the mitigating factor of a guilty plea and when that took place. This has formed the basis for the range of discounts available for a guilty plea with the highest discount (25%) available for a plea at the earliest opportunity to the lowest discount available for a plea on the morning of trial.

Taking Luxon’s 40% limitation, if the 25% for an early guilty plea is available, that leaves only 15% to be divided between other factors such as youth, remorse, rehabilitative efforts post-offending, addiction and background information linking deprivation to the offending, as well as any discount for previous good character and any other factors that may be relevant. Such an approach does not allow for the nuances of the offending and the offender to be taken into account on an individualised basis. That said, there must be consistency at least of approach and with other sentences for the same offending. In addition, the approach does not allow for proper consideration and evaluation of all the factors that may mitigate the offending and give them proper weight and recognition.

It is in this area that judicial discretion comes into play. It is one of the reasons we have judges who are trained and become experienced in dealing with the variations and vagaries of offenders and their individual circumstances. I have discussed the judicial role in sentencing in my article Replace the Judges? Sentencing is not a cookie-cutter exercise. A “one-size-fits-all” approach results in injustice. A wide discretion afforded to judges allows for individual justice to be dealt with, depending upon individual offences and individual offenders.

Underlying Luxon’s comments is a concern about public perception and what would seem to be a desire for harsher outcomes. He may not be aware that the word “punishment” occurs only in the title of s 26 of the Sentencing Act. The word “punishment” does not appear in the purposes of sentencing, nor is it present in the principles of sentencing, nor is it present anywhere else in the Sentencing Act.

Perhaps before developing the policy further, Luxon might benefit from a closer study of the Sentencing Act to gain an appreciation of how it works and if he wants to continue with his proposals, the changes to the Act that will be required. They will be extensive. ■

Dr David Harvey is a retired District Court judge and a member of Sangro Chambers ■