Concurrent sentencing is a topic that the Sensible Sentencing Trust (SST) has long campaigned on.
It is a very serious matter, with this type of sentence frequently applied by the courts in New Zealand. What concurrent
sentences do is in fact manifestly unjust. Good for the offender, bad for society. It is hard to understand why
parliament would have agreed to this type of sentence.
The message concurrent sentencing sends is that multiple offences are fine because the courts will lump them all
together into one sentence. An example might be where an offender breaks and enters a premise, helps himself/herself to
some merchandise, is confronted by the owner working out the back whom he/she then assaults. A court is most likely to
look at these three offences, sentence each one separately and then say to the offender; ‘to be served concurrently’.
What does this mean? Well it means that the two lesser offences of breaking and entering and stealing are in effect
FREE! because the more serious offence of assault was considered by the court to be the most significant.
Almost every time that court news is published from the courts around New Zealand, there are instances of concurrent
sentencing. Not only do offenders get let off some of the offending with concurrent sentencing, but also of course only
a third to a half of the imposed sentence is actually served (Sentencing Act 2002).
So, what is the alternative to concurrent sentencing?
Sentence the offender for each crime and add them together. This is called ‘Cumulative or Consecutive’ sentencing. So,
in our case above, say the offender was sentenced to 6 months jail for breaking and entering and 6 months jail for
stealing and 12 months for a vicious assault, then under concurrent sentencing he/she would be sentenced to a total of
12 months in prison (based on the most serious charge). The two lesser crimes are in essence free. However, if the
offender was sentenced under cumulative sentencing as the SST says he/she should be then the total sentence would be 6,
plus 6, plus 12, equals 24 months. This the SST claims, would be a just result for the crimes committed against the
victim and therefore against society.
The hypothetical case cited above is common. But here is a real-life case, where a young girl of 15 years who we will
call Vanessa, was sexually assaulted and murdered by a stranger while walking across a school ground towards her
friend’s place, a few years ago now. The police charged the offender with sexual violation and murder, but the
Prosecutor decided not to pursue the sexual violation charge. Was that because murder was an easier charge to prove or
was it because the Prosecutor knew that if the sentencing went something like 6 years for rape and 10 years for murder,
that the crimes would be served concurrently, that is for a total of 10 years! If that was the thoughts of the
Prosecutor, then justice is not served. Indeed, on questioning, the Prosecutor said he saw no point in pursuing the
sexual violation charge as if the accused was found guilty of the sexual violation and the murder, then he would serve
the sentence concurrently anyway. The Prosecutor added that it was his decision to make and that was that. The fact that
this offender at the end of his sentence, would not be registered as a sexual offender as well, seems to have been
overlooked.
In another recent case where a woman and her three-year-old daughter were attacked by an ex boarder (in their own home),
the daughter was killed and the mother was attacked with a hammer and a knife. The mother suffered several injuries
including a fractured skull. The offender pleaded guilty to murder and attempted murder and was sentenced to 13 years
without parole for the murder and 10 years for attempted murder. The sentences ‘to be served concurrently’. At appeal
the sentence for attempted murder was reduced to 8 years which made no material difference whatsoever because of the
concurrent nature of the sentences. These are two major crimes and the sentence should have been a cumulative one for a
total of 23 years.
In a more recent case, where a 22-year-old woman was murdered and for this release we will call her Sophie, there were a
number of crimes committed apart from the murder. She was murdered, but also bashed, stabbed 216 times including
multiple times in her eyes, had quite a lot of her hair cut off, her nose cut off, her ears cut off and perhaps more
importantly in terms of sexual interference, part of her labia cut away. There was more than one crime here. Defilement
of a dead body alone is a major serious crime.
In this latter case, only the murder was pursued. Why was that? Well it is more than likely that had the other crimes
been included in the overall charge, then it is almost certain under our sentencing regime that all the crimes would
have been served concurrently. As an aside, this offender ought to have been sentenced to Preventive Detention, where
the qualifying act is ‘sexual or violent offences’ (ss 144A/144c of the Crimes Act 1961). Where a sex crime is
punishable by 7 or more years imprisonment. The offender in this case was sentenced to 18 years non-parole, but probably
should have been at least 25 years.
So, it is not just that obvious cases are treated in a concurrent fashion, but also that certain parts of crimes are not
pursued because the police and prosecution know that the courts are more than likely to give a concurrent rather than a
cumulative sentence.
Concurrent sentencing is not fair or just. It allows the offender to escape part of the wrong that he/she has done to
society.
While the Members Bill has tended to concentrate on specific issues around certain crimes, it definitely will, if passed
by parliament, start a wider discussion about concurrent sentencing.