A very rare poll on a judicial decision

I did something I have never done before and ran a poll on what a sentence should be. It shows how totally out of touch some Judges are with the public.

I would normally never poll on a judicial sentence as there are so many factors to be considered in sentencing. But it was justified in this case as the Judge ignored the written statute and made a value judgement about what New  Zealanders would consider shocking to their conscience. By over-riding the Sentencing Act passed by Parliament, the Judge made his judgement fair game to test.

The background is in this Herald story. Zacquirin Tikena-Stuchbery had managed to chalk up three serious violent assaults in just three years. The Sentencing Act 2002 86D(2) states:

Despite any other enactment, if, on any occasion, an offender is convicted of 1 or more stage-3 offences other than murder, the High Court must sentence the offender to the maximum term of imprisonment prescribed for each offence.

86D(3) states:

When the court sentences the offender under subsection (2), the court must order that the offender serve the sentence without parole unless the court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to make the order.

So this is the law of the land. This meant that the offender must be sentenced to 14 years in prison, with the Judge having discretion over whether to make it with or without parole eligibility if they thought no parole eligibility would be manifestly unjust.

But last year the Supreme Court found in the case of Daniel Fitzgerald that his seven year third strike sentence for indecent assault could be reduced, despite the statute law, if the punishment was so excessive that it would shock the conscience of properly informed New Zealanders. They based this on the Bill of Rights Act even though BORA explicitly is not meant to over-ride other laws.

Now the Fitzgerald case was a difficult one. His three strikes were burying his head in a woman’s buttocks, slapping buttocks and an unwanted kiss. There is a good argument to be made for removing indecent assault from the three strikes regime as what constitutes indecent assault can range massively. So one can understand (even if one disagrees) why the Supreme Court ruled the way they did in that case.

Anyway the Supreme Court made their decision. And the threshold is that the punishment would shock the conscience of properly informed New Zealanders. You could argue seven years for an unwanted kiss would do so.

But the case of Tikena-Stuchbery is nothing like this. All three of his strike offences were serious offending. The first was for multiple beatings of his partner. The second was for a violent beating and robbery of a man outside a bar. And the third, as reported was:

He was sentenced today for lashing out at the woman on November 27, 2020, after their home was burgled and he blamed her for not being home to prevent it. The following evening, she fell asleep as he played games on her phone and she woke up to what the judge described as a prolonged, “violent and brutal” beating prompted by jealousy over a text from another man who had commented on her looks.

“The complainant begged you to stop the assault and call for an ambulance,” Justice Davison said, noting that the defendant only agreed to medical attention if his victim promised to lie about the cause of the injuries.

“The attack was vicious and extremely violent,” the judge said, adding that the victim has since expressed forgiveness but that doesn’t mitigate the offending.

This seems like exactly the type of offender the law is designed for – three violent assaults in just three years. Yet the Judge refused to sentence him according to the statute for 14 years jail (he could have had parole eligibility in under five years) and declared that doing so would be so “disproportionately severe and crushing” as to shock the conscience of New Zealand.

It is that call by the Judge that the sentence set in statute would shock the conscience of New Zealand I wanted to test. If say 75% or even 50% of NZers said such a sentence would be wrong, then maybe you could say the Judge was right. So here is the question I asked in our June poll of 1,200 New Zealanders:

For this question I’m going to read out details of a recent criminal case. At the end of it I’d like you to tell me which sentence you think would be most appropriate, out of three options. Zach is 22 years old. When he was 18 he beat his partner up and received his first conviction for violent offending. A year later he beat up and robbed a man outside a bar and received his second conviction for violent offending. A year after that he beat up his partner in a lengthy assault described as prolonged, extremely violent, brutal and vicious. The rationale was because another man had  commented on her looks. This got him a third conviction in three years for violent offending. Which of the following three sentences do you think would be most appropriate? 14 years with no parole, 14 years with parole eligibility after five years or Five years with parole eligibility after two and a half years

The results of the poll are:

* 14 years no parole: 43%
* 14 years with parole eligibility in five years: 38%
* Five years, parole eligibility in  2.5 years 10%
* Unsure 9%

So 81% of New Zealanders said they thought the sentence set out in the statute would be appropriate. Only a miniscule 10% thought the sentence the Judge substituted was appropriate.

This is not about selecting sentences by opinion poll. This is about testing the assertion made by the Judge in his decision to ignore the statute passed by Parliament on the grounds that the mandated sentence would shock the conscience of New Zealanders. It is clear that the Judge is massively out of touch on this issue. You could quibble over wording and background of the offender etc, but there is no way you can say that the assertion that the mandated sentence would shock the conscience of New Zealanders is correct when eight times as many think that sentence is the appropriate one.

I hope that Crown Law sees it job as to uphold the law as passed by Parliament and appeal this decision. Otherwise we are on very dangerous territory. 

 Incidentally the support for the statutorily mandated sentence over the one the Judge substituted was in all demographics. The breakdowns are:

  • Women 81%
  • Men 80%
  • Under 40s 79%
  • 40 to 59  80%
  • 60+ 83%
  • National voters 86%
  • Labour voters 76%
  • Maori Party voters 79%
  • ACT voters 88%
  • Green voters 81%

Agreement that a 14 year sentence with parole would be appropriate for this offending  has massive agreement in every demographic. The assertion by the Judge such a punishment would shock our conscience is hopelessly wrong. There is not a single demographic that would agree.

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