Can non-citizens, those on work visas or permanent residents, be sent to their home country rather than imprisoned here if they commit a serious crime?
Offending committed in New Zealand must be dealt with by our courts.
The alternative would be that people who are neither residents or citizens of our country could commit crimes and not have to pay the price, but be deported to their own countries where they may not receive punishment because no crime has been committed in their country.
Normally, prosecutions of non-citizens in New Zealand are dealt with in exactly the same way as done for the citizens of New Zealand. If the sentence is imprisonment, it is served in New Zealand. They must receive the same punishment as a citizen would receive, and not be deported before they have served their sentence.
New Zealand residents are subject to good character considerations for two years or more; if they offend during that period, there may be repercussions such as deportation.
An INZ decision
Deportation of New Zealand residents who have committed a crime is a matter for Immigration New Zealand (INZ). Judges do not have any input.
The possibility of non-citizens being deported is not normally a matter for consideration by Judges, unless somebody is facing a lengthy term of imprisonment for serious crime such as importing a Class ‘A’ drug.
It could be considered that the public good would be better served if a slight discount was given to the prison term on the basis that the prisoner would be deported to their country immediately upon release. Although this places a financial burden on New Zealand, the principle is that everyone must be treated equally in this country as far as the law provides.
Differing verdicts
Why are prison terms not more severe and proportional to the magnitude of the crime (e.g. multi-million dollar theft)?
As already outlined in answering questions on deterrence and consistency, sentencing is not a “rubber stamp”. Each case is individual, and that is only just and fair. Judges have to follow the same structure and consider the same mandatory sentencing principles and purposes for any sentencing.
These are set out in the Sentencing Act and Judges must sentence in accordance with them. They include deterrence and denunciation and the court must take into account the effect on a victim, whether there is a guilty plea, whether there are no previous convictions, and a number of other matters that are important.
These include reparation and whether there is an offer to repay what has been taken, issues to do with rehabilitation, there could be mental health issues involved, or issues to do with the age of the offender.
Balancing exercise
There are a number of things which must be taken into account and sentencing is a balancing exercise. Although the law says that 20 years in prison is the maximum penalty for rape, it does not necessarily mean that a person found guilty of rape is going to prison for 20 years.
It is always possible for a Judge to impose a minimum non-parole period because the law allows a person to be eligible for parole after a certain time.
But a Judge can decide in a particular case that someone has a minimum period before they are eligible for parole, usually where there is a long sentence.
For example, if an offender is sentenced to 15 years’ imprisonment, the Judge might decide they should not be eligible for parole until they had served eight years.
Many factors need to be weighed up at the time of sentencing.
That is why multi-million dollar theft might not attract a much longer sentence than a theft of a smaller amount; it all depends on the circumstances.
The important thing is for the Judges to apply the law, and the law about sentencing is in the Sentencing Act 2002.
The above is the response given by the judges of the Auckland District Court at their ‘Community Day’ held at Fickling Convention Centre on September 24, 2012. The Editor of this newspaper was present at the meeting and the responses of the judges to a number of questions are published in a series. The responses are reproduced verbatim, as given by the judges. The first four parts appeared in our November 15, December 1, December 15, 2012 and February 15, 2013 issues.
