Victims advocate backs National's sentencing discount cap

National's policy on sentencing reductions is overdue, a victims' advocate says - but a criminal lawyer argues judges are best placed to make such decisions.

The National Party unveiled its sentencing policy at its annual conference on Sunday, promising a hard limit of 40 percent on the amount judges could reduce sentences by.

It would also bring back the three-strikes sentencing rule; allow remand prisoners to access rehabilitation programmes currently only offered to sentenced prisoners; and remove taxpayer funding of Section 27 cultural reports.

The party's Justice Spokesperson Paul Goldsmith on Monday told RNZ's Morning Report the policy struck the right balance between showing real consequences for crime, and supporting those affected by it.

"What we're seeing quite clearly is insufficient sentences in many instances, and that clear message from the community - that they don't tolerate crime and that there should be real consequences for crime - hasn't been getting through."

"We've got a government that has only had one priority, which is to reduce the prison population irrespective of what's going on in the community, and that I think has contributed to the sense of lawlessness that people see on their streets and in their community."

Labour's Justice Spokesperson Kiri Allan had criticised the idea as essentially "saying that we politicians know better than the judiciary", and would lead to a higher prison population at an as-yet-unknown cost.

Goldsmith acknowledged it may increase prison populations in the short term, but said the long-term goal was to reduce crime.

"We want a lower prison population, we don't want our prisons full of people - but it has to follow a reduction in crime," he said.

He took issue with the characterisation that longer sentences would only encourage reoffending.

"That's the justice minister's line, that [prison] is a university for crime. Well, that's why we have the rehabilitation programmes, and over the last six years there's been an increase in the funding for rehabilitation but less of it actually done.

"And so that's why we're very keen to ensure that prisoners who are on remand can access the full suite of rehabilitation, which is very important for turning their lives around."

The current discounts system came under scrutiny last year after Tauranga teenager Jayden Meyer was sentenced to nine months home detention for raping four women and sexually violating another.

At the time, Goldsmith signalled his party would consider changing the sentencing process to limit the amount of discounts offenders could access.

Private victim's advocate Ruth Money told RNZ the policy to cap sentencing discounts was "sensible", and overdue from a survivors' perspective.

"Judges absolutely need discretion - people who harm do so for all sorts of reasons - but when you're getting up to discounts of 80 percent, 70 percent and even 60 percent, it makes a mockery of what the survivor goes through and it is not a balanced justice system.

"It feels like 40 percent is a relevant level where people can still apply discretion but there is some accountability and justice for what happened."

Money said the discounts being offered were "getting out of control" and some of her clients felt like sentencings had been "engineered" to reach an end point of home detention (a prison alternative available to those who get a jail sentence of two years or less).

One Auckland case had a starting point of seven and a half years' jail time for multiple charges and victims but a 73 percent discount saw the offender sentenced to home detention, she said.

"It's a really false sense of justice. It's hard enough disclosing, particularly sexual violence and family violence, and going through the process; the wait times, invasion of your privacy, speaking about the most horrific and personal things or being cross-examined by a defence lawyer who doesn't take much mercy on you."

"You all of the sudden think, why did I bother? That's the feeling I get from many survivors. They always ask, why did I bother? Why did I put myself through this? Which is not justice. Justice should be fair and balanced. If you think about the symbol of justice, it should be a balanced result and it's certainly not at this point."

Judges 'best placed' to make decisions - lawyer

However, Auckland criminal law barrister John Munro argued judges were best placed to determine the level of discount offenders might get, saying some were "quite justified" in getting sentencing discounts above that level.

"For example, if a person pleads guilty at the first reasonable opportunity they get 25 percent credit off their sentence for that. That person as well might have mental health issues, might have given some assistance to the police, might have already completed a significant amount of rehabilitation in the community or may have even met with and had a genuinely restorative [meeting with] victims of offending," he said.

"Youth always gets a good discount because it's shown that youths can rehabilitate and become good members of our society ... much harder to do that when you're older and your views and your habits are much more entrenched.

He said in the case of Jayden Meyer, all the victims had agreed with him getting home detention, "so we need to be careful when you start throwing around individual cases".

"All the cases that I've ever heard of, of young people getting home detention for sexual offences, are usually ones that are justified and judges have taken a long time to think about it and to see if the credits are justified.

He said a blanket 40 percent cap could also act as a disincentive for things like an early guilty plea or helping police.

"The only real discount that judges are more compelled to grant is the early plea discount, but there's all sorts of variety of discounts and they can be whittled away with individual circumstances," he said.

Higher courts granting further discounts on appeal was just the system working as it should, he said.

"If some have been missed out and haven't been considered properly ... that's a good thing for the appeal courts to do. I mean if appeal courts think it's justified, that's law and order working."

Cultural reporting

Munro said there was some merit, however, in National's plan to defund Section 27 cultural reports. The proposal would see the $20 million in taxpayer funding over four years instead spent on additional victim support like counselling, or transport to attend court.

Goldsmith said the ability for a brief oral report would be retained, the problem was the reports had ballooned from eight in 2017, to more than 2500 at a cost of more than $6m last year.

"We just think it's become just another bit of gunge in the gears of the justice system, which is incredibly slow at the moment, we want to speed it up. It's burning through a lot of money and the trajectory of spending is going up and up and we think that money is better directed to help the victims of crime."

Munro said the reports had a good basis, and the judge should be aware of things like deprivation and the offender's circumstances - but the details could be combined with the current pre-sentence reports.

"There might be some merit actually in National's policy on those reports. Section 27 of the sentencing act was really meant for a person to stand up and speak on that person, the offender's, behalf in relation to their culture or what their whānau can do to support or make sure their sentence is going to be better or how they can help them in future," he said.

Money agreed, saying general pre-sentence reports could cover some of the same material and some businesses were charging much more than some others to produce the reports.

The funding should instead be funnelled back into supporting victims, she said.

Māmari Stephens, a Victoria University of Wellington associate law professor who has been contracted to write such reports, said Goldsmith had conveniently forgotten the reasons cultural information was included in the law in the first place.

"Those considerations were to do with creating a mechanism by which Māori experiences, Māori systemic deprivation, incurred as a part of the cultural background within which Māori were living, could be taken into account to address disproportionate sentencing," she said.

She said it was not fair to instead be placing the burden of that on whānau speaking in court. Sometimes, that was very effective - but not in all cases.

"Whānau might not have the resources, the wherewithal, the time, the ability, to speak to those cultural backgrounds that an independent report writer can actually speak to.

"There will often be situations where whānau cannot speak to those things because of the nature of their whānau experience, because of the nature of the disconnection they might experience."

She said the information provided to judges was much poorer than it used to be.

"As a former probation officer myself, there used to be a lot more resourcing and time put into pre-sentence reports, you're lucky if you get more than an A4 piece of paper in pre-sentence reports today.

"That's not to place any blame on corrections or probation officers but the fact is in order to deliver individualised justice, judges need to have information."

She said it amounted to racial targeting by National.

"Do National want quality information placed before the judges or not," she asked.

"Do they really want the quality of that information to be slashed, to be decimated - is that the kind of racial targeting that they want to engage in? And are they even aware of the background of these reports? I wonder."