"Newman Online"
Weekly commentary by Dr Muriel Newman MP
Newman On-Line: Returning Sentencing Power To The Judges
This week, Newman On-Line looks at the inconsistencies in Labour’s Sentencing Act, and considers ways to turn sentencing
back into punishment for crime.
In his report to Parliament this week, Serious Fraud Office Director David Bradshaw raised concerns about
inconsistencies in the sentencing of white-collar criminals. By revealing that some offenders have received far softer
sentences than others, he reflected the public’s wider concerns – not only over inconsistencies in the sentencing of
criminal offenders, but – over the fact that the focus of sentencing has shifted away from justice for victims, to
providing for the needs of offenders.
Concerns over sentencing have escalated since the Government passed its Sentencing Act in 2002. The Act is based on
Labour’s philosophy that sentencing should fit the offender’s needs, rather than those of the victim. When sentencing,
judges are required to impose the least restrictive outcome on the offender that is appropriate in the circumstances,
taking into account their family, background, culture, and community, as well as any evidence of their previous good
character.
In particular, judges are instructed to impose sentences that are not disproportionately severe, and which are designed
predominantly for the purpose of rehabilitation.
The Act requires judges to bear in mind the “desirability of keeping offenders in the community as far as that is
practicable”, so that imprisonment is not imposed “unless the sentencing purpose cannot be achieved by any other
sentence”.
In light of these directives and restrictions on judges, it is little wonder that Mr Bradshaw and the public take
exception to the fact that at sentencing fraudsters can be described as “astute”, “hard working”, “competent”, and
“pillars of their community”. But, rather than attack the judges – who are simply carrying out the requirements of these
newly imposed sentencing laws – critics should turn their attention to the fact that it is the Labour Government that is
driving these soft-on-crime laws.
One answer to this problem is to return discretion, and power over sentences, to judges. A recent case in the US
highlights a far more creative and effective approach to sentencing than would be possible here under our present laws:
Shawn Gementera, a 24 year-old with a lengthy criminal record, was found guilty of stealing letters from San Francisco
mailboxes. Instead of sentencing him to prison, the judge ordered him to undertake eight hours of community service –
requiring him to stand outside a San Francisco Post Office wearing a sandwich-board stating “I stole mail; this is my
punishment”. On top of that, he had to write apology letters to his victims, deliver several lectures at local schools
on the evils of criminal offending, and undergo an extended three-year period of supervision.
The judges in this case believed it was necessary for Gementera to be brought face-to-face with the consequences of his
conduct. Since he clearly regarded mail theft as a victimless crime, he needed to be shown that stealing mail did create
victims. He needed to understand that people depend on the integrity and security of the mail system, and that his crime
had abused the trust people had in that system.
As a result of these considerations, the judge ordered a sentence that made him confront – for eight hours – the sort of
people who were his victims, shaming and humiliating him for what he had done. This was deemed by the judge to be a more
effective punishment than prison: it ensured his remorse, and a commitment to mend his ways. It accomplished more than a
weak or custodial sentence could have ever achieved.
My Private Member’s Bill – which is currently before Parliament, ready to be debated on Wednesday week – provides an
opportunity for New Zealand judges to order more effective sentences. The Sentencing (Community Sentencing to Fit the
Crime) Amendment Bill restores commonsense discretion and power to judges during the sentencing of criminal offenders.
The Bill restores to judges – who get to know those who come before them – the power to once again design sentences to
punish offenders and reduce the likelihood of their re-offending through such measures as random drug testing, alcohol
bans, non-association orders to prevent offenders mixing with gangs or known criminals. Such discretion could see the
ordering of community work, or the imposition of stringent supervision requirements at the end of prison sentences.
The Bill also changes supervision sentences from being concurrent, to cumulative.
Labour’s Sentencing Act turned sentencing into a charade, with probation officers being given the power to decide almost
all the significant elements of a community sentence – including where it will be served, when, how, who with, and what
work will be done.
My Bill not only re-instates court control over punishment, but it also enhances the Probation Service’s ability to
ensure discipline among community work attendees by sanctioning poor behaviour, lateness or misconduct.
Ultimately, sentencing is one of the tools used to punish offenders and discourage crime. If we care about reducing
crime in our society, it is time that our judges were given back the power to enable them to do that job more
effectively.