Chapter 7 – Improving the current legal model – Hara Ngākau Kino

The current legal model (sentence aggravation)

The legal model currently used to address hate crime in Aotearoa New Zealand is called the sentence aggravation model. Under this model, an offender’s hate motivation is taken into account as an aggravating factor when they are sentenced. Hate motivation isn’t part of the offence and isn’t recorded on the offender’s conviction. The maximum penalty for the offence doesn’t change. The sentence aggravation model can apply to all offences and any enduring common characteristic.

The sentence aggravation model is currently used in New Zealand, Australia (New South Wales, Victoria, South Australia, Tasmania and Northern Territory), England and Wales (alongside specific offences), Canada and Northern Ireland.

The sentence aggravation model has several possible advantages over other legal models. For example:

it applies to all offences and enduring common characteristics;
the seriousness of the hate motivation is assessed on a case-by-case basis;
it is more efficient in terms of court time and costs, since hate motivation doesn’t need to be proven at trial and is often not disputed; and
keeping the current legal model would avoid the costs and uncertainty of significant law reform.

Ways to improve the sentence aggravation model

There may be ways to improve how the current law works without changing the legal model. We want to know what you think about this. We explore some options below.

Showing that hate crime is serious

If the current law doesn’t do enough to show hate crime is serious, some ways to address this could include:

requiring sentencing judges to state that an offence was a hate crime in a court hearing open to the public and media;
requiring sentencing judges to explain how the offender’s hate motivation affected their sentence;
reviewing the maximum penalties for existing offences to make sure they are high enough to include the offender’s hate motivation.

Encouraging reporting of hate crime

If there are barriers to reporting hate crime, changing the legal model may not be the best way to address this. Other options could include:

a public awareness campaign;
introducing alternative ways of reporting, such as community-based services that can report hate crime on behalf of victims and others.

Prosecuting hate crime

If hate motivation isn’t being consistently raised by prosecutors at sentencing, some options to address this might be:

Providing advice to Crown solicitors on prosecuting hate crime, similar to the guidance already provided to Police prosecutors.
Flagging hate crime cases in the court system. Prosecutors could be asked to state if a charge against a defendant is an alleged hate crime. A flag could prompt judges to consider hate motivation at sentencing and other relevant times (such as when deciding whether to grant the defendant bail).

Improving information about the outcome of hate crime prosecutions

If hate crime cases were flagged in the court system (as discussed above), the courts may be able to share information about those cases with Police. This could help Police track how often prosecutors are raising hate motivation at sentencing and the outcome of hate crime prosecutions.

Applying the hate crime aggravating factor

If there are concerns about the application of the hate crime aggravating factor, it may be possible to fix them by changing the wording of the factor. For example:

If there is concern that the aggravating factor may apply in when hate is only a minor reason for the offending, it could be changed so that hate must be an important part of the offender’s motivation.
If there is concern about which characteristics are protected by the aggravating factor, the factor could be changed so it only applies to listed characteristics, instead of any “enduring common characteristic”. Another option is to change the list of examples of protected characteristics.
If there is a problem with the aggravating factor only applying where the offender believed the victim had the protected characteristic, this requirement could be removed.

Rehabilitation of hate crime offenders

If there is a problem identifying the rehabilitative needs of offenders, any hate crime flag introduced in the court system could be shared with Corrections. Corrections would then be notified of convictions for hate crimes.

Hara ngākau kino | Hate crime