Court delays: 1 in 5 offenders released on time-served sentences

More than one in five prisoners are now being released on the day of their sentencing due to time served.

Court wait times have blown out and the proportion of prisoners getting time served has doubled since 2016, numbers obtained under the Official Information Act show.

During the 2013 to 2015 financial years, 9 percent of prisoners were released on time-served sentences.

That rose to 10 percent in the following year and marked the beginning of a steady climb until 2020-21, when 21 percent of prisoners were sentenced to time served.

It has sat at that level since.

A time-served sentence was one in which an offender was released upon being sentenced, as they had already spent as much or more time in jail on remand than was appropriate for the crime.

Prisoners were only able to gain full access to rehabilitative services once sentenced.

During that period, court wait times had also been steadily growing with accused offenders now waiting an average of 459 days for a criminal trial in the District Court and 546 days in the High Court - an increase of 65 percent and 45 percent respectively on 2015.

As a result, justice advocates said offenders were missing out on much needed rehabilitative services.

Howard League director Mike Williams said it also raised concerns about human rights.

"It's not a desirable situation and it means people are being held on remand for too long, and it also means there are people in jail who should not be in jail. I think the problem must be addressed," he said.

It was also a financial issue as prisoners cost the same, whether they were on remand or sentenced to jail, Williams said.

Several factors were to blame, including a lack of judges, the pandemic and the previous government's bail changes, he said.

However, he believed the current government had made positive changes.

In 2019, then-Justice Minister Andrew Little told the United Nations Human Rights Council Aotearoa's justice system was broken, and the government was committed to transformative change.

Since then the prison population had dropped, but many justice reform advocates were still waiting for the promised transformation.

Chester Borrows, who served as a minister in John Key's government and chaired a review of the justice system for the current government, said very little had changed.

"Everyone who is in the criminal justice system, by means of being a perpetrator, or a victim or family members of those, or people working in the courts or other areas of the criminal justice system, all say it's broken," Borrows said.

"But none of the recommendations that came from their mouths have been implemented. There have been some very small steps towards it. But I think for political reasons those decisions haven't been taken because to do so would be handing the opposition a bat to hit them with."

But expansive and transformative justice sector reform was the right thing to do, and politicians knew it, Borrows said.

"The fact that this is the first majority government that we've had under MMP, which we first used in 1996, would indicate that it's not going to happen for a long time, and that really bothers people like me.

"What those politicians need to remember is they'll have a long time looking in the mirror once they finally get given their cards and they're out of parliament, and they may have got things done they're proud of but this is one thing they won't be proud of," Borrows said.

But he had harsh words for both sides of the political aisle, calling the last government's crackdown on bail, a "silly, short-sighted response which lacks integrity".

With one in five prisoners now being sentenced to time-served and missing out on rehabilitative services as a result, the current National opposition should also take a hard look at themselves, he said.

"This makes a lie of all of those who talk about tough on crime," Borrows said.

"It is not a safe system if we are taking people ... putting them back into the communities where their crimes were committed with absolutely no rehabilitation and no hope that they won't be coming back [to prison] pretty quickly."

It was time to move past tough on crime approaches and start to get smart on crime, he said.

"If you start to show any understanding of why offenders offend and go on and create victims, then apparently you're soft on crime.

"Whereas it's as simple as joining the dots."

Disproportionate number of Māori in remand

The numbers revealed remand prisoners were also disproportionately young and disproportionately Māori, even compared to the disproportionately Māori prison population.

Auckland University professor Tracey McIntosh said the numbers were concerning, but unsurprising.

"It just speaks to a system that is not reflective or focussed enough on really good outcomes. I don't believe just churning through the system and doing time-served creates good communities or individual outcomes," she said.

She had been involved in research looking at remand prisoner populations in many countries overseas and, like Aotearoa, elsewhere indigenous populations were disproportionately represented and affected by remand rules.

It raised questions about human rights issues, as there were innocent people pleading guilty to take time-served sentences and just get out of jail, McIntosh said.

"If you were to be proven innocent [following a trial], you would have served a period of time longer than you would have got if sentenced, so there's some real issues around that," she said.

National's Justice spokesperson Paul Goldsmith said the numbers showed the government was focussed on the wrong areas and soft on crime, with its only target being to reduce the prison population by 30 percent.

When asked for an example of the government being soft on crime, he pointed to the repeal of the previous government's three strikes law.

"It's one legislative change, but also a clear signal that they've sent to the whole sector that the number one priority for them is reducing prisoner numbers, irrespective of what happens in the community and that's cascading through the system," Goldsmith said.

"Everybody is conscious of when people have been convicted of very serious crime and not gone to prison but they've gone to home detention. There's a real issue there.

"We're not just saying lock people up and throw away the key, but there do need to be serious consequences for serious crime. And then secondly you've got to do the rehabilitative stuff effectively, and then thirdly you've got to make sure the court system is working efficiently."

Justice Minister Kiri Allan said the government recognised the delays in the court system and the impact on those they affected, particularly victims.

"That's why addressing court delays is a significant priority for me and our government. It is one of the foundational aspects of our core justice priorities, ensuring that people have access to justice, an area which we substantively funded through Budget '22.

"There are three primary focus areas for the justice sector: access to justice (including reducing delays across the justice process); focussing on victims; and focussing on remand.

"There are several initiatives underway to reduce delays in the justice system, and these approaches have to be driven across the justice sector collectively by police, Corrections, Crown Law, Oranga Tamariki, the courts and Justice."

The 2022 Budget included $562 million law and order package, and the government had provided $90 million for additional judicial resources in response to the pandemic, Allan said.

"A range of complex systemic factors have driven increases in the prison remand population, rather than previous Bail Act reforms, for example, later guilty pleas in the criminal court process leading to more court hearings and creating strain on court resources.

"These include an increase in category three cases, which are more serious and generally require more resources compared to category one and two cases, adding further pressure to case workloads regardless of when the plea occurs. In addition, the amount of time a person spends on remand is dependent on how long it takes for the judicial process to be completed by the courts, influenced by factors including the complexity of the case and the plea entered.

"Although decisions to remand a person in custody are determined by the courts, Corrections is continuing to work towards long term reductions in the remand population through things such as the High Impact Innovation Programme (HIIP).

"HIIP has operated a number of initiatives to prevent unnecessary delays for people in the justice system, both for people on remand and those who have been sentenced. HIIP initiatives like its Sentencing Ready team works with parties who contribute to sentencing hearings to help make sure all necessary information is available at sentencing hearings.

"This work aims to improve information flow and access to information, which enables informed decision-making by the judiciary or New Zealand Parole Board as quickly and safely as possible, reducing the time it takes for people remanded in custody to be sentenced after conviction."