Pleas of guilt, remorse and youth: how the government wants longer sentences, hampering the justice system

The government says sentences are not long enough for serious crimes, but changing the law so that judges give longer sentences actually means judges are out of touch with judges and politicians are doing it
Normal. Do politicians know better?

The government appears to be limiting the amount by which a judge can reduce a sentence based on an offender’s youth, remorse or late guilty plea – which would lead to longer sentences.

This may indicate the age of the perpetrator or his expression of remorse, as these are ‘one-off’ discounts that will no longer be available if he re-offends.

It could also mean a prescriptive system for dealing with guilty pleas, including requiring judges to grant a small discount if a case is reported the night before or during a trial. However, this can create perverse incentives, including innocent people pleading guilty so that they can be sent home on a criminal conviction rather than spend time in pretrial detention.

These policies were not campaigned for but are in line with National’s law and order rhetoric that sentences for serious crimes are too short. They also complement – although they would be independent – the government’s commitment to limit the maximum sentencing discount a judge can grant to 40%.

However, they are likely to cause confusion in court because they run counter to the wide discretion judges have over what mitigating factors are relevant and to what extent, depending on the unique circumstances of each case. This confirms the expertise of the team – do politicians know better? – although there are rules of consistency to ensure that similar judgments are delivered in similar cases.

The policy was revealed in the latest Justice Sector Forecasts report, which shows government policy could increase the prison population by up to 2,400 in the coming decade.

This would increase the prison population to 13,700 in 2034, a 43% increase on the current population of 9,548 prisoners and 2,300 prisoners more than beds in the system, including an additional 1,410 beds planned for Waikeria Prison in the coming years.

The growth forecast does not take into account the impact of an additional 500 police officers, but takes into account several policies already announced such as anti-gang laws, firearms bans, legal aid waiver for Section 27 reports, 40% cap on sentencing discounts and Three Strikes 2.0.

It also takes into account applications that have not yet been formally approved, including:

The cumulative sentence policy is part of the New Zealand First-National coalition agreement, but the government has not yet announced any decisions on guilty pleas or youth/remorse discounts.

Meyer factor

Justice Minister Paul Goldsmith, while in opposition, floated the idea of ​​one-off discounts for remorse and youth, which would not be available to the offender if he committed further offences.

He was responding to public outrage when Tauranga teenager Jayden Meyer was sentenced to nine months’ house arrest for raping four women and sexually assaulting another.

It is unclear whether government policy would include a severity threshold that would trigger a “one-off” clause, or whether rebates could be allowed two or three times before becoming unavailable. Goldsmith’s spokesman does not want to provide any details, only saying that the government will make a decision on this matter soon.

The reason may be that genuine remorse coming from an offender who repeatedly commits serious crimes is questionable. Likewise, the age of the perpetrator should no longer be considered a mitigating factor if the person continues to commit the offence.

This would also effectively mean that remorse should have no bearing on reoffending, nor should a child’s youth, despite accepted science about neurodevelopment.

Inconsistent youth factor

The Sentencing Act requires the judge to take several factors into account when imposing a sentence, including the guilty plea and the timing of the confession, whether the perpetrator shows remorse, and his or her age. Expressions of remorse may include any offer of redress by the perpetrator.

How they are used currently depends on the judge, who is guided by legal precedent. The precedent for the youth discount is the 2011 Court of Appeal ruling regarding the murder trial of two teenagers, aged 14 and 17.

“There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative external influences and pressures (including peer pressure) and may be more impulsive than adults,” the ruling said court.

Other factors included the fact that deprivation of liberty “can be overwhelming” for young people and that they have “greater opportunities for rehabilitation, particularly given that the character of a juvenile is not as developed as that of an adult.”

“This does not mean that young people should not take responsibility for their actions – it only means that their actions may be partly explained (but not necessarily justified) by their neurodevelopmental status.”

Subsequent judgments have noted that younger brains are still developing risk assessment and planning abilities, which may not be fully developed until the age of 25. This is part of the rationale behind the Young Adult List Court (for offenders aged 18 to 25).

However, a 2024 paper, which analyzed 66 decisions made for young adults (18-25) convicted of burglary and grievous bodily harm, found that the youth discount was applied inconsistently.

He pointed to judges who paid attention to the perpetrator’s “youthful” behavior, not his age.

“There is a discount for young people, which aims to recognize the causal relationship between the age of the perpetrator and the crime he committed,” the article reads. “Therefore, the assessment should focus on the age of the perpetrator and not on whether his or her behavior appears to be “youthful.”

The article recommended ranges of discounts for young people, while maintaining the flexibility of courts within these ranges.

The danger of “unfounded” confessions

Goldsmith said Herald in December that it was considering introducing incentives for early guilty pleas to ease the burden on the courts.

Delayed admission of guilt is one of the main reasons why court proceedings drag on; In 2015, 60% of defendants pleaded guilty at the administrative stage, but in 2020 this figure dropped to 50%.

The research team of the Ministry of Justice did not find any clear reasons for this state of affairs. Potential factors included “exhaustion of court resources”, a larger number of self-represented defendants, financial incentives for a longer trial – the more court events, the higher legal fees – and a “postponement mentality”.

The review also considered prescriptive systems in Australia; For example, New South Wales provides a 25% discount for a plea made more than two weeks before the hearing, which then reduces to 5%.

“Preliminary assessments appear to suggest that the discount, scaled by the time of entering a guilty plea, appears to increase the number of earlier guilty pleas,” the article says.

But it came with a warning. Studies in Canada and Hong Kong suggest that some people pleaded guilty just to get out of prison early. One study found that pre-trial detainees were two and a half times more likely to plead guilty than those on bail.

Legal precedent in New Zealand comes from a 2010 Supreme Court ruling. Broadly speaking, it stated that pleading guilty at the earliest possible opportunity should be subject to a discount of up to 25%, and in the case of a guilty plea at the beginning or even during the trial, up to 10%.

Overall, however, he favored broad judicial discretion. Why should a defendant who entered an early plea be given the maximum discount, regardless of the strength of the charge against him? Ignoring this, the Supreme Court said, would likely lead to “unwarranted windfall benefits… to those who have no choice but to plead guilty.

“It would also put pressure on the defendant to plead guilty on grounds that are against the rules. In some cases, this type of pressure can lead to a hasty confession from a person who may not be guilty.”

This decision was a response to the Court of Appeal’s ruling which defined the writ system. The Supreme Court dismissed this as overreach because it changed sentencing policy without any legal guidance to do so.

However, there are suggestions that the system is not working. A focus group study commissioned by the Ministry of Justice – described as illustrative rather than representative – shows that the 25% discount was applied regardless of the stage of the case.

The legislative direction is already ready. Last week, Goldsmith told the justice select committee that the government was elected to change the law and the way sentences are carried out.

He did not want to discuss individual cases, but said that when “a large number of serious cases” end in house arrest, “victims do not feel that they have achieved justice.”

The government has been strengthening the punitive side of the justice system for the sake of accountability and public safety, but said there are also several policies that address the drivers of crime, including tackling absenteeism, social investment 2.0, rehabilitation programs for pre-trial detainees, more housing and assistance in treatment of mental illnesses and addictions.

“It’s very easy for people to say that we are only interested in the criminal side. They were not.”

Derek Cheng is a senior journalist who joined the Herald in 2004. He worked on the press gallery team for several years and was also deputy political editor.