Mon May 22

It's time to fix NZ's Sentencing Act, which lets too many young sex offenders avoid jail

Written by Debra Wilson, Associate Professor, School of Law, University of Canterbury

Over the last 12 months, multiple ^[1] young sex offenders have been given home detention for sexual assault. Time ^[2] and time again ^[3], the argument has been that these men were too young to fully understand the consequences of what they were doing.

But is 25 really too young to understand that sexual assault is wrong? And how old is old enough to be considered fully responsible for your conduct?

The recent case of a 25-year-old church youth group leader and his 15-year-old victim provides some insight into where the court is heading on these key questions.

The case also highlights the need for the parliament to step in and make a call on revising its 2002 Sentencing Act ^[4], which currently does not clearly define who a “young offender” is. That gap in the law is what’s allowing discounts for sexual offenders into their mid-20s.

Imprisonment “clearly warranted”

While a youth leader at Otūmoetai Baptist Church, Luke Stainton ^[5] persuaded a 15-year-old girl to enter into an “intimate relationship” with him. This involved weekly sexual encounters over a one year period. During this time, Stainton sought advice from his church and was told that his actions were inappropriate and needed to stop. He did not follow this advice.

A pre-sentence report described Stainton as placing his “own needs and gratification” first, with “no thought for the victim”. His offending was “calculated” and “planned” to avoid detection, and his expressions of remorse focused on the impact of his behaviour on himself, not the victim.

The report concluded that he was at a medium risk of re-offending. The judge concluded that the report did “not speak very positively of [Stainton]” and that a sentence of imprisonment was “clearly warranted.”

But the defence’s psychiatric report described Stainton as having “considerable naivety for his age” and of “very low-risk of re-offending”. It noted Stainton’s acknowledgement that he made “foolish choices”.

In the end, Stainton was sentenced to 27 months imprisonment, based on a starting sentence of 3.5 years, and discounts of 25% for early guilty plea and 10% for good character. He appealed.

The appeal judge agreed with the approach of the sentencing judge, but then added a further discount of 10% due to his age. This meant that the sentence was now less than 24 months imprisonment, which allowed the judge to convert it to a sentence of home detention.

Are under 25s unable to make good decisions?

Between Stainton’s initial sentencing and his appeal, the Court of Appeal released a separate decision on sentencing of “young people”.

In R v Dickey ^[6], three teenagers were sentenced to life imprisonment for murder. They appealed this on the basis that the sentences were too harsh given their ages.

The court agreed and reduced their sentences, accepting neuro-scientific evidence ^[7] that the part of the brain that deals with impulse control, risk assessment and planning may not be fully developed until the age of 25.

If this is the case, then these research findings will need to be taken into account for all sentencing of those under 25.

But should a sentencing discount for age be automatic?

Stainton does not fit the mould of the young offender described in the Dickey decision. Stainton’s offending was not impulsive, but occurred weekly over a one year period. He did not fail to understand risk, but deliberately planned his offending to avoid detection. Despite this, he received a 10% discount because of his age, with the judge noting that his lack of remorse was evidence of his immaturity.

It is important to note that when an offender shows remorse, this is often taken to mean that the offender has taken responsibility for their actions and shows potential for rehabilitation. This remorse can therefore justify a sentencing discount ^[9]. But in Stainton’s case, the lack of remorse was interpreted as a sign of his immaturity, warranting the sentencing discount.

Time for parliament to act

As pointed out above, Stainton is the latest in a series of cases in which sex offending against teenage girls is punished only with home detention, and not imprisonment. Despite the young ages of the victims, it is the older offenders who depicted as young and immature.

The victim in the Stainton case suffered from mental health issues in the four years since the offending. Her bravery in coming forward should be recognised.

The Sentencing Act of 2002 ^[11] permits a sentencing discount based on “the age of the offender” but does not state when a person is too old to receive this discount.

In the Dickey case, the court suggested that it might apply to under 25s, but added that it was not creating a rule for judges in future cases to follow, and that the maximum age limit was a matter for parliament to decide. Without any further guidance, the judge in Stainton applied the discount to a 25 year old.

New Zealand’s increasing number of cases in which young sex offenders are sentenced to home detention, and the rising age at which they may be able to an age-based discount, suggest it is now time for parliament to revisit the Sentencing Act’s provisions on young offenders.

The parliament should consider this new neuro-scientific evidence – and then clarify, so all New Zealanders know, how old someone needs to be before they are presumed to be fully responsible for their sexual offending.