By Debra Wilson* of 
During sentencing the judge has to consider the purpose of sentencing and how similar crimes have been treated by the courts, Debra Wilson writes. Photo: RNZ / Dan Cook
Comment: New Zealanders reacted with anger, confusion and disbelief at the sentencing in recent weeks of 18-year-old Jayden Meyer to home detention after his conviction for rape, sexual violation and indecent acts.
Meyer's sentence resulted in protests as well as a petition signed by over 39,000 people demanding tougher sentencing. Crown prosecutors have since announced they will appeal the judge's decision.
So how could such a sentence be justified in the first place? A brief look at the rules of sentencing might provide some insight.
Under the Sentencing Act, a judge is required to consider the purpose of sentencing as well as the principle of sentencing - what we are hoping to achieve with the punishment and how we sentence crimes of a similar nature.
The judge then needs to consider any aggravating factors, such as whether the offending was violent or cruel or whether the victim was particularly vulnerable, as well as whether there were any mitigating factors such as the age of the offender, their background and whether they showed remorse.
In line with the law
If this wasn't complicated enough, each of these elements has to be given equal weight.
In Meyer's case, the relevant purposes and principles would be to hold him accountable for his actions, to take into account the interests of the victim, to protect the community and to assist in the offender's rehabilitation.
The judge likely considered several factors as aggravating, including that the offending involved violence, that the victims were vulnerable due to their ages (all were 15) and the circumstances surrounding the crimes (all had been drinking and one was asleep).
The mitigating factors are unclear, but would likely include his age (he was 16 at the time).
The final sentence imposed was nine months home detention, during which he will be subject to 20 court-imposed conditions, followed by 12 months of post-release conditions.
Meyer's sentence conditions included attendance at a rehabilitation programme, non-association with anyone under 16, and monitoring.
'Slap on the wrist': Over 1000 outraged Kiwis protest against legal system's 'disgusting' sentencing of teenaged rapist Jayden Meyer https://t.co/teC4C7WrGl
— Newshub (@NewshubNZ) September 8, 2022
Possible reasons for home detention
Following a probation report which suggested Meyer was at "medium" risk of re-offending, the judge appears to have prioritised rehabilitation and community safety.
A sentence of home detention would enable Meyer to access rehabilitation programmes in the community. Community safety would be achieved in the short term by his sentencing conditions and, in the long term, by successful rehabilitation.
Would imprisonment achieve the same results? This is unlikely.
First, it is likely that the prison sentence would have been around 18 months. This is classified as a "short term" (less than 24 months) sentence, meaning that Meyer would be automatically released after serving half and would spend the second half in the community subject to parole conditions.
It is unlikely he would receive rehabilitation in prison due to this short sentence (waiting lists are too long). Instead, as was commented on about a similar case earlier this year, prison would merely "see him learning from more experienced sex offenders".
On release, he would likely be ordered to undergo rehabilitation for the remaining nine months of his sentence (and for another six months after that). His chances of a successful outcome might, however, be lessened due to the delay in receiving rehabilitation and the impact of his time in prison.
Home detention arguably provides Meyer with the best chance for rehabilitation to decrease the likelihood of future offending.
Meyer's sentence is also consistent with other recent sentences and with the data on the number of sex offenders serving home detention.
The sentence recognises that young offenders have the ability to change and become productive members of society, instead of labelling them as irredeemable and putting them in an environment where they become "better" criminals.
The Crown is appealing the nine-months home detention sentence handed to 18-year-old Jayden Meyer, who raped four girls and sexually violated another when they were all 15. https://t.co/NdNHmiDtxF
— Stuff (@NZStuff) September 29, 2022
The place of victims
But where are the victims in this approach? By focusing on reducing future offending, this consequences-based approach minimises the impact the offending had on the victims and fails to recognise the short-term safety concerns of the community.
A retribution centred approach, on the other hand, punishes the offender for the actual offending, giving more weight to the harm done to the victim.
Both approaches are equally justified under the Sentencing Act.
Judging by the public outrage, the judge's decision has left many wondering where the voices of the victims are in the sentencing process.
It is a strange feature of New Zealand's criminal justice system that the victim plays only a limited role in criminal proceedings. They may be a witness or provide a victim impact statement, but, unlike the offender, they don't have a lawyer to speak directly for them.
The feeling of being ignored by the system, coupled with sentences that appear unreasonably low may, understandably, leave victims reluctant to come forward.
While the final sentence imposed on Meyer is consistent with the Sentencing Act and other cases, it must be asked if this is all we require from our justice system.
Does this case, and the public response to it, suggest that it might be time to give a greater voice to victims? Perhaps this can be achieved by appointing a "lawyer for the victims" to ensure that their voice is not lost in the complicated sentencing process.
*Debra Wilson is Associate Professor at the Schhol of Law at the University of Canterbury.
