The Justice Committee has examined the Sentencing (Reform) Amendment Bill and recommends by majority that it be passed. We recommend all amendments by majority.

The bill seeks to amend the Sentencing Act 2002 to strengthen the consequences of offending and ensure that offenders take personal responsibility for the harm they cause. It responds to a perceived trend away from the use of imprisonment and towards non-custodial sentences such as home detention, community detention, and intensive supervision, despite an increase in the seriousness of offending.

The bill proposes to:

• limit to 40% the extent to which a sentence may be reduced based on mitigating factors personal to the offender, unless the sentence would be manifestly unjust

• implement a sliding scale setting out reductions for guilty pleas

• prevent repeat use of sentence reductions for youth and for remorse

• encourage cumulative sentencing for offences committed while on bail, in custody, or on parole

• introduce new aggravating factors

• strengthen the requirement to take into account any information provided to the court about victims’ interests.

As part of our consideration of the bill, we have examined its consistency with principles of legislative quality. We have no issues regarding the legislation’s design to bring to the attention of the House.

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor or technical amendments. For example:

• our proposed clause 5A, new section 8A, is included purely for clarity to provide an overview of aggravating and mitigating factors in sections 9, 9A, and 9B–9R

• new sections 9B to 9G in the bill as introduced are, for clarity, replaced with simpler and shorter new sections 9B to 9R.

Proposed sections 9B(1) and 9K(1) would prevent a sentence for any type of offending from being reduced under the youth or remorse personal mitigating factor if the offender has already had a sentence reduction under that factor for earlier offending. Sections 9B and 9K apply only to offending, and earlier offending, that occurred after the commencement of the Amendment Act inserting those sections. However, we consider that it is unclear how “earlier offending” applies to an offender being sentenced for multiple offences in a series of offending, where sentencing for those multiple offences in a series takes place at different times.

We think that the offender should be entitled to youth and remorse discounts for all earlier offending in a series of offences, even if some of those offences are sentenced later in time, if they were all committed before the sentencing when the offender first received the youth or remorse discount. We recommend amending proposed sections 9B(1) and 9K(1) to ensure that they:

• specify clearly the relevant offending, and the further offending, committed after the commencement of the Amendment Act by which they are inserted

• ensure that offences committed before the sentencing at which the offender first received a youth or remorse sentence reduction are eligible for a youth or remorse sentence reduction

• ensure that all further offences committed after that sentencing are ineligible for a youth or remorse sentence reduction.

We also recommend amending sections 9B(2) and 9K(2) to specify that in imposing a sentence of any type on the offender for the further offending, the court must not reduce that sentence under the youth mitigating factor or the remorse mitigating factor.

We looked into whether the inability to use the youth mitigating factor and remorse mitigating factor for sentence reductions for any further offending might be inconsistent with the amendments made to the Sentencing Act 2002 by the Sentencing (Reinstating Three Strikes) Amendment Act 2024. The Three Strikes regime has provisions addressing the effects of appeals, whereas this bill does not contain similar provisions. We think that any inconsistency may need to be resolved at the Committee of the whole House.

We were advised, however, that sections 9B and 9K differ from the Reinstating Three Strikes amendments. This is because Three Strikes amendments involve mandatory penalties based on an offender’s current warnings status, which required specific provisions to address changes in status that could arise as a result of appeals. Sections 9B and 9K, in contrast, apply based only on the offending and further offending specified in sections 9B and 9K. A change in when the offender first validly received a youth or remorse sentence reduction can be dealt with under courts’ existing powers for appeals against sentences (including appeals against sentences allowed out of time). Those powers enable courts to adjust affected sentences if the court on an appeal against a sentence considers that sections 9B and 9K should not have been applied. (This might be, for example, because a conviction or sentence for the earlier offending is, on an appeal, quashed or no longer reduced under the relevant factor.)

The Labour Party does not support this legislation. Most fundamentally, this legislation reduces the range of sentences that a judge may impose on an offender and is intended to reduce the discretion of a judge in imposing a sentence. Fundamental to the sentencing process, and in achieving the objectives set out in section 7 of the Sentencing Act is the fact that, in every situation, the circumstances of the victim, offender, and the offending are unique, and the task of the judge is to impose a sentence which is appropriate to all of those circumstances. This legislation is a departure from that and will make it harder for judges to achieve the objectives of the Act.

The reduction of judicial discretion was a key concern of many submitters including the New Zealand Law Society, the Defence Lawyers Association | Te Matakahi, Te Hunga Rōia Māori o Aotearoa | The Māori Law Society, the Royal Australian and New Zealand College of Psychiatrists, the New Zealand Council of Christian Social Services, and the Law Association of New Zealand.

This Government is not interested in reforms based on expert advice or evidence. The Ministry of Justice has made a number of warnings about these changes in its Regulatory Impact Statement including that:

• the changes are likely to lead to increases in legal challenges to how the exceptions are applied and the unintended consequences of disincentivising offenders from taking steps that will benefit victims

• sentencing will be made significantly more complex, which is likely to result in delays to Court

• the total cost after 10 years will be up to approximately $150 million, resulting from the addition of approximately 1,350 to the prison population.

The Regulatory Impact Statement was also critical of the process adopted, noting that insufficient time was given to address wider issues raised, or to allow for detailed and peer reviewed modelling of impacts. The Ministry was not able to explore all of the options available, but was instructed only to look at the narrow options in the Government’s coalition agreement – meaning that better options may remain available.

The Ministry was also not able to consult broadly, meaning that there was no engagement in dialogue with Treaty partners, strategic partners, and practitioners. This has provided further difficulties in anticipating the direct impact of some of the legislative amendments. All of these constraints meant that the Ministry could not adequately test the implications and unintended consequences that could undermine the stated objectives of the legislative changes.

In short, this reform is the Government grasping in the dark. Central to this reform is limiting the reductions in sentence that a judge can grant. One such measure is the provision that a reduction of a sentence (or taking into account as a mitigating factor, to put it another way) for youth or remorse is a one-time-only reduction.

In respect of youth offending, we agree that a judge can properly give it less weight as a mitigating factor in subsequent offending – and this is the case under the current law. However, we consider it to be irrational and at odds with good sentencing practice to require a judge to disregard a factor which remains relevant to sentencing. A person does not cease to be affected in their decision making by their youthfulness simply because they have previously had it taken into account by a judge in prior sentencing. We consider that the weight to be given to such a factor in subsequent offending is a matter properly left to the judge.

We also agree that a judge can be rightly sceptical of claims of remorse in respect of repeat offending – and this is the case under the current legislation. The removal of remorse as a mitigating factor in subsequent offending may have perverse consequences. We are concerned that there will be no incentive for offenders to make amends for their offending, like making a genuine apology or meeting with the victim, because there is no incentive for them to do so. This could lead to worse outcomes for victims. Further, if an offender is genuinely remorseful for subsequent offending, this is relevant to offending, and once again, we would trust the judge to give it a weight that is appropriate in the circumstances.

The difficulties with removing remorse as a mitigating factor for subsequent offending is highlighted by the way in which an offer to make amends under section 10 of the Act is dealt with. Such offers generally take the form of a money payment – and are a way of seeking compensation for the victim and could be said to be a tangible way of showing remorse. Obviously, such payments can be beneficial to victims. In light of this, the committee has recommended that it be clear that such offers can still be taken into account as a mitigating factor. The result is that if a person has the financial means to give a show of apparent (but in fact feigned) remorse by offering money compensation for their wrongdoing then this will be taken into account and their sentence reduced. However, if a person genuinely regrets their wrongdoing and is prepared to engage with the victim appropriately to express this but cannot pay compensation – that cannot be taken into account in respect of subsequent offending.

A key part of the reform is placing a cap on sentence reductions for mitigating factors at 40%. The bill provides in proposed section 9O that “If a sentence of imprisonment for offending of any kind is reduced under 1 or more personal mitigating factors, total reductions under all those personal mitigating factors must not exceed 40% of the sentence.” This fundamentally reduces the discretion of a judge and makes it more difficult to impose a sentence which meets the purposes and principles of the Sentencing Act. We oppose it for that reason. It also adds considerable complexity to the sentencing process.

It is not clear to us what the 40% cap refers to. We were advised that on the wording of the provision the 40% reduction is not a reduction off the maximum sentence. It is a reduction off the “starting point” sentence (which is almost always less than the maximum sentence). We considered that this should be more clearly stated in the legislation. The starting point sentence is the sentence that a judge would consider normal for offending of this type before considering any aggravating and mitigating factors which are personal to the offender. The starting point is determined by the judge in light of the leading decisions on prior cases in the area on sentencing (sometimes referred to as tariff cases).

One of the things that we consider likely to happen as a result of this amendment is a change in starting points for sentencing, especially in cases where the 40% cap would lead to an outcome which is clearly inappropriate. This is unfortunate as tariff cases which provide clear starting points are an important part of the legal framework around sentencing and this is likely to create greater uncertainty in sentencing and undermine the utility of those tariff cases.

The provision also introduces the concept of mitigating factors which are “personal” to the offender. This is then defined in clause 4 but in a non-exhaustive way (by reference to s 9(4)(a) of the Sentencing Act). This leads to a further lack of clarity about when a reduction over and above 40% is available. For example, there is no guidance on whether the matters that would usually be traversed in a report under section 27 of the Sentencing Act are “personal” to the offender.

Matters which are not “personal” to the offender can reduce the sentence more than 40% including a number of matters such as time spent on bail with an electronic monitoring condition, the conduct of the victim, limited involvement in the offence on the offender’s part, and any adverse effects on the offender of a delay caused by a failure by the prosecutor. These are existing mitigating factors in the Sentencing Act.

The bill also adds some specific circumstances to the list of aggravating factors. We do not consider that these additions are necessary for a judge to take them into account in sentencing. We recognise that particular circumstances – such as the vulnerability of a victim who is working alone – should be taken into account as an aggravating factor. It is also the case that the law already enables this. Adding to the list of aggravating factors increases complexity, reduces workability, and creates some arbitrary distinctions. A judge has the ability to take any matter into account as an aggravating factor where appropriate.

The addition of particular aggravating circumstances which must be taken into account risks diminishing the importance of other facts – including the particular circumstances of a victim. We agree that offences committed against public transport service workers, or sole charge retail workers are deeply concerning – and can properly be taken into account by the judge as aggravating factors in any case. But there is a degree of arbitrariness in the exclusion or inclusion of such detailed aggravating factors. This was pointed out by the Dairy and Business Owners Group who in their submission noted that it would be odd to take a different sentencing approach “simply because another [person] was ‘out back’” in a retail premises. This reform, by only identifying sole charge retail workers and public transport workers risks de-emphasising other workers’ vulnerability. Retail New Zealand observed that “it is difficult to see the justification in treating crime against one retail worker differently to another, simply depending on the size of their workplace”.

The amendments include provisions that the judge can depart from the rules in the case of “manifest injustice”. Implicit in this is a recognition that the application of these new sentencing standards will lead to injustice in varying degrees. Manifest injustice is a high threshold – it is more than just an unfair or inappropriate sentence. It must be a sentence that is so clearly wrong, so egregious, that no reasonable person would consider it appropriate. In short, by this reform this Government has intentionally designed a sentencing regime to be unjust – but not manifestly so.

The Green Party of Aotearoa New Zealand does not support this bill. Fundamentally, this is because incarcerating people who have committed offences for longer does not lead to reduced re-offending or better rehabilitation outcomes, because of the limits it places on judicial discretion, and because of its potential to breach the New Zealand Bill of Rights Act 1990 (NZBORA).