It is a judicial cliche to say each case turns on its facts, but it is no less true because of that. Each crime will have its own individual circumstances, perpetrator, victim and witnesses, which will affect the view their honour takes on the incident as a whole when pronouncing sentence.
Parliament is now considering a range of alterations to the Crimes Act via the Crimes Amendment Bill, which is before the Justice select committee.
Some of the changes proposed are uncontroversial: reforming New Zealand’s laws on human trafficking to better conform to international laws and agreements is something which MPs of all stripes should easily find agreement on.
More contentious will be amendments relating to citizen’s arrests, defence of property and theft in response to recommendations from the ministerial advisory group for the victims of retail crime.
We have editorialised before that these amendments to the Crimes Act — particularly those concerning the power of arrest — require a serious rethink.
While no doubt popular, especially with the beleaguered shop owners and workers at the pointy end of armed robberies and ram raids, the proposals run the risk of placing retail staff even more in harm’s way by potentially making them think they are required to place themselves in even greater danger by trying to apprehend a culprit.
The committee, no doubt, will hear much on this issue once submissions close.
Another probable change that will be less contentious is the new "manslaughter by strike to head or neck" offence, but this too does have some fish hooks
Such an offence, colloquially known as a "coward’s punch", can have devastating and potentially fatal consequences. Often unprovoked and usually a complete surprise to their defenceless victim, introducing a law to single out such offences for more extreme punishment is part of the National-New Zealand First coalition agreement.
But following that route then begs the question as to why a "cowards punch" is not anything other than manslaughter or aggravated assault, as such crimes are now considered? The committee may well struggle to find language that creates a clear and obvious differentiation.
That said, there is a clear need to discourage such appalling behaviour. The sad example of Steve Radnoty, a Dunedin man killed in a senseless "king hit" attack in a fast foot restaurant in 2011, is but one local example of this.
Another is that of Invercargill man Matthew Coley, killed by a blow to his head delivered by a teenager outside a convenience store in 2016.
The Radnoty and Coley cases were two of 11 highlighted yesterday by the Sensible Sentencing Trust as it launched a campaign to ensure the new offence is supported by the select committee.
Further, the trust wants Parliament to add a mandatory minimum sentence to the offence, in addition to the proposed maximum sentence of life imprisonment.
On the surface, the trust has a point. Of the 11 cases it highlighted, sentences imposed ranged from home detention (a quarter of cases) to five years imprisonment.
Its research found that across the ditch in New South Wales and Victoria such crimes were treated far more stringently: the average sentence was about nine years, with minimum non-parole periods of at least six years.
We agree that a more severe stricture is needed for these crimes, but the minimum sentence proposal by the Trust is a blunt instrument that will tie judge’s hands if a measure of mercy is appropriate if the circumstances warrant it.
The trust fears the Sentencing Act requirement for consistency will mean the 11 cases it highlights will become benchmarks, but this assumes judges will be assessing coward punch crimes under an old law rather than through the lens of a newly created offence.
These crimes do need a sentence that demonstrates society’s disapproval, but judges also need to be able to judge on the facts placed before them.
