JustSpeak calls for accuracy in reporting of concurrent vs cumulative sentencing

The Dominion Post on Saturday ran a headline article titled "Sentence 'a slap in the face' for Kylee Guy". JustSpeak is of the opinion that there were inaccurate statements from Garth McVicar in that article which included:

Sensible Sentencing Trust spokesman Garth McVicar said he was disgusted that Justice Simon France split Macdonald's offending into two groups - crimes against the Guy family and the other charges - then imposed a cumulative sentence on that basis.

"When you go out and commit serious crimes like Macdonald did, every one of those should have a price," Mr McVicar said.

JustSpeak believes the above statements are unhelpful and misleading.

Organisations like the Sensible Sentencing Trust, which powerfully advocate for the rights of victims, have a social responsibility to make sure the comments they make regarding sentences handed down by Judges are accurate. The above comments, in our view, fundamentally misinterpret the sentencing of Justice Simon France, which makes it very clear that he took into account each of the separate offences that Mr Macdonald had pleaded guilty to in reaching a total sentence.

Whether the sentences were each imposed concurrently or cumulatively in the case of Mr Macdonald would have, in our view, made no difference to the overall sentence. This is due to the totality principle in s 85 of the Sentencing Act 2002. The essence of the totality principle is that, in arriving at the appropriate sentence for several offences, the sentencing judge must not only consider each offence individually, but also assess the offender’s overall culpability and determine what effective sentence is appropriate for the totality of his or her conduct.

JustSpeak notes that there have been requests to the Attorney-General asking “for Macdonald to serve back-to-back sentences for all six of his crimes.” Without commenting on the effect this sentence will have on the family members involved, JustSpeak believes it is important to point out that MacDonald serving back-to-back sentences for all of this crimes does not necessarily mean that he would be serving a longer overall sentence. Instead, s 85 of the Sentencing Act means that he would likely serve the same length of sentence; it would simply be arrived at by a different route.

Giving Garth McVicar a platform to comment on sentencing is dangerous when he implies that a cumulative sentence somehow means that each crime does not have its price when the sentencing notes of Justice Simon France clearly show this to be untrue.

The Ewen Macdonald sentencing decision is publicly available on Judicial Decisions Online. http://www.courtsofnz.govt.nz/from/decisions/judgments.html.

Ultimately open debate is important on criminal justice issues: indeed, that is what JustSpeak stands for. But that debate needs to be informed and should not be misleading. Both the media – and advocacy groups – need to show care and responsibility in this sensitive area.

Background:

JustSpeak was formed at the beginning of 2011 as the youth offshoot of Rethinking Crime and Punishment. The guiding ethos driving JustSpeak is that young people have much to offer to the national conversation on criminal justice. Among other things, young people bring an imaginative outlook, a feeling of urgency, and a sense of hope. Since forming, JustSpeak has made a number of contributions, including holding a series of monthly forums in Wellington, and now also in Auckland.

These forums aim to bring together young people from different backgrounds to educate and upskill members on issues of criminal justice. Topics have previously included Maori and the Criminal Justice System, Vulnerable Children, Drugs and the Criminal Justice System, Boot Camps, the Political Response to Criminal Justice Issues, and Media and the Criminal Justice System. JustSpeak launched in Auckland in August 2012 with a forum on youth offending, which attracted a large audience and significant media interest. For more information, visit justspeak.org.nz.

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