A fascinating, but somewhat mysterious, piece of research has recently been published in the Australian & New Zealand Journal of Criminology. It describes huge variations in the imprisonment of drink drivers between one region of New Zealand and another.
PhD student, Wayne Goodall (left) and Dr Russil Durrant (right) of Victoria University divided the country into 17 areas (or judicial ‘circuits’). They found that in one circuit (number 8), repeat drink drivers are twelve times more likely to be sent to prison than drink drivers in other areas. In three other circuits, offenders were ten times more likely to end up in prison. But the circuits are not identified. The researchers refuse to disclose which regions are sending the most people to prison. All they would say is that “judges in the provinces were more likely to incarcerate drink drivers than judges in metropolitan areas”.
The need for consistent sentencing
This lack of clarity is problematic on a number of counts. First, judges need to be consistent in the way they punish a particular offence. This obligation is laid down in section 8(e) of the Sentencing Act 2002 which says judges ‘must take into account the general desirability of consistency with appropriate sentencing levels… in respect of similar offenders committing similar offences’. In short, judges should be handing out roughly the same punishment for the same crime – but we now know that when it comes to repeat drink drivers, they’re not. Goodall and Durrant acknowledge that this inconsistency may extend to other crimes as well – but more research is needed.
They also say the reason for the inconsistency is that New Zealand has no sentencing guidelines – and so judges in the district courts are left to their own devices. Goodall says local area judges form “personal constructs about offenders” which vary from one region to another and this has led to “systematically different approaches” from different regions. In some areas, judges incarcerate people for quite minor offending – such as tagging. In 2007 the Government was so concerned with the growing number of low level offenders in prison, it announced the establishment of a Sentencing Council. It agreed with the Law Commission recommendation that judges need sentencing guide- lines. Unfortunately, National scrapped the plan when it came to power in November 2008.
Where is circuit 8?
With all due respect to the judges concerned, this research shows that leaving the judiciary to their own devices was a big mistake. Let’s not make another one by suppressing the details and failing to get to the heart of the matter. We need to know – where is circuit 8?
My guess is Hawkes Bay where Judge Tony Adeane (right) is in charge – and doesn’t like the writing on the wall. In April 2008, Adeane sent an 18 year old tagger to prison and declared the sentence was “a signal to you and your friends that the penalty for graffiti in Hawke’s Bay will be imprisonment until such time as there is some sign this self-indulgent egocentric behaviour is abating”. The following month he sentenced nine drink-drivers to prison in two days.
These are not isolated cases. Goodall and Durrant examined drink driving offences in New Zealand over a two year period (2008-09). Altogether, 9039 repeat drink drivers were involved in the study of which 2429 (more than a quarter) were sent to prison – with the highest percentage of incarcerations (by an absolutely massive margin) in circuit 8.
This is an aberration of justice. Perhaps it is no coincidence that Garth McVicar, founder of the so-called Sensible Sentencing Trust, lives in Hawkes Bay. For years he’s encouraged judges to put more people in prison – except those who stab young taggers to death. McVicar has had a significant impact on the growth of the prison population so one is inevitably led to the conclusion that circuit 8 is probably in Hawkes Bay.
However, the region in which you are sentenced is not the only factor affecting sentencing. In New Zealand, Maori are seven times more likely to be given a custodial sentence than pakeha and men are three times more likely to go to prison than women. Even being physically unattractive can increase your chance of imprisonment. There is very little research on the impact of geography on sentencing, even internationally – but this ground breaking research at Victoria University suggests it may have an even greater impact than race or any other factor.
The need for transparency
We need to know where these hidden biases in our justice system are. If the judges in Hawkes Bay are out of line with their colleagues, they certainly need to know. Policy makers also need to know so they can figure out how judicial biases operate and how to overcome them. So it is essential that the VUW researchers tell us which region of New Zealand is circuit 8 – and which other provincial areas send ten times as many people to prison as metropolitan areas. This information should provide unequivocal evidence that New Zealand needs a Sentencing Council after all.
I asked Dr Durrant to tell me which circuit represents which area. He refused saying: “For reasons that you can probably imagine the identities of the circuits cannot be disclosed.” Frankly, I cannot imagine a single reason for keeping this information secret. This is not a national security issue and Victoria University is not the NSA – or the GCSB. This is about the New Zealand justice system which needs to be open and transparent.
I have had to write to the Ombudsman to try and get the information made public. But that shouldn’t be necessary. VUW should take pride in an excellent piece of research which has uncovered a substantial bias in the administration of justice. They need to give us the details – not cover them up. And then they need to do more research to see if it applies to other kinds of crime. In the meantime, a smart defence lawyer might argue that if his client is a male, Maori and lives in the provinces, there is convincing evidence he is unlikely to get a fair hearing.