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Mandatory Cumulative Sentencing

Current Situation

Concurrent sentencing is mostly used in NZ. This is where separate sentences are handed down for each offence committed but the sentences are served simultaneously giving a “bulk discount” for multiple offences.

Changes SST would like to see:

  1. A ‘truth in sentencing’ approach is taken so in every case, where multiple offences are committed, offenders receive a separate sentence for each and every offence and the sentences are then served end for end or collectively. This is called cumulative sentencing.

Further comments and explanation

  • Concurrent Sentencing is the type most commonly used at present in New Zealand. This is where separate sentences are handed down for each offence committed by an offender – but they are all served simultaneously, i.e. side by side, in parallel.
  • Cumulative Sentencing is where all the sentences that an offender may get at any one time for a series of offences are served end-on-end, i.e. one after the other.

Ese Junior Falealii – A good example that will demonstrate the difference in outcomes are the sentences handed down for Ese Junior Falealii. He had eleven charges to which he pleaded guilty, and was sentenced as follows;

  • Two murders at 17 year minimum sentence each.
  • One attempted murder at 8 years 9 months
  • Eight aggravated robberies at 7 years 9 months each

However he is serving all these sentences side by side rather than end on end, so effectively he is serving one “life” sentence with a 17 year no-parole period. Not bad but certainly not as tough as the 104 years plus he would have been serving had the sentencing been cumulative!

James Tamata –  He was jailed for “life” in 1995 for murdering Janine Law in April 1988, i.e. he was sentenced to ten years for rape, and eight for sodomising and raping her, to be served concurrently. However, the system did something right in this case – he was also sentenced to 14 years for other sex and property offences to be served cumulatively on top of his “life” sentence, making a total of 24 years. As a result he must serve at least 16 years before he is eligible for parole, still less than an ideal outcome but certainly better than the possibility of his being released after only ten years.

William Johansson – A further example is that of William Johansson who was given a life sentence with a 23 year non-parole period for each for two counts of murder, 11 years for one count of attempted murder, 11 years for 10 counts of aggravated robbery each, 18 months for unlawful passion of firearms, all to be served concurrently. If his sentence were cumulative he would be serving a sentence of 168 years and six months.

The Problem

The problem with concurrent sentencing is that it effectively results in a “discounting” scheme for offenders – they get much the same sentence if they commit a number of offences as if they had committed just one, that being the worst of the offences being considered. The outcome is particularly unjust where multiple murders are concerned – the offender is given one “life” sentence and all the other killings are effectively “freebies”.

This is basically an incentive to kill more once an offender has started, and there have been a number of examples where an offender has committed multiple killings but been sentenced as if they had only committed one. Take Raymond Ratima for example, who killed seven members of his family, but only got one “life” sentence.

One of the dangers of this is that an offender having killed his main target may decide it is worthwhile killing any witnesses. This would actually be quite a rational (if utterly amoral) assessment on his part, as by doing so he increases the chances of his avoiding conviction, without risking a proportional increase in his likely sentence if he is caught. He has nothing to lose by killing his witness(es) and something to gain by doing so.

Another problem with concurrent sentencing is that it sends a very mixed message to the public and to the criminal fraternity. It leaves us all unclear as to what the outcomes are actually are going to be of criminal activity, particularly multiple offences. On the one hand individual sentences are increasing, yet the more offences are committed at once the less the sentence is per offence.

We believe it would be both clearer and more just if all sentencing were to be cumulative. Then we would all have a very clear idea of the consequences of criminal activity, and those consequences would be far more in proportion with the severity and quantity of offending.