The premature dismissal of compensation for a woman wrongly convicted and sentenced to a year of home detention is morally rotten and practically misguided, writes Andrew Geddis.

In her magnificent reporting on things New Zealander’s usually don’t like to think about, Stuff’s Kirsty Johnston has told some pretty sad stories. Families denied payment for a lifetime of caring for their disabled adult children. Autistic people locked in seclusion cells because they are just too hard to deal with. But her latest story on a woman who can only be called “Mrs P” might just about be the saddest of all.

The full account deserves your attention. However, a nutshell version is that following the end of an abusive relationship, Mrs P ended up in the Family Court. The judge in her case apparently took against her, ultimately accusing her of altering a document to try and mislead him. He reported her to the police, who prosecuted and upon being convicted she was sentenced to a year of home detention. In 2020, the Court of Appeal quashed her conviction with, it’s fair to say, some raised eyebrows at the way the lower courts had dealt with her case. However, by that time her sentence already had been completed.

So far, so terrible. Being falsely found guilty of a committing a crime would be a pretty awful thing in itself. Sure, quashing the conviction lifts it from Mrs P’s record, but it can’t undo the initial blow. And, as Johnston lays out, the consequences of that ultimately overturned conviction were devastating for Mrs P. She lost a year of her life sitting in one place, unable to leave it. She lost her job as a teacher. It caused her to rack up significant legal debts. It has left her living on a benefit in a garage with no hot water.

As such, given that Mrs P’s life largely has been ruined by the justice system wrongly labelling her a criminal, you might think that maybe the government would want to do something about putting that wrong to right. No system can ever be perfect and errors will be made. But, surely, if the power of the state is used wrongly to deprive you of your liberty and so take most everything from you, then it should then do something to help undo that harm.

Apparently not, as Johnston subsequently has reported. You see, the “guidelines” that the Labour government adopted in 2020 to deal with wrongful convictions only cover cases where a person is imprisoned. Because Mrs P instead was sentenced to home detention – by “the narrowest of margins” according to the sentencing judge – she falls outside of these. Meaning that the current minister of justice, Kris Faafoi, has rejected out of hand any chance of Mrs P receiving compensation.

There’s three points here. The first is the most obvious: what the actual fuck? An abused woman is revictimised by the criminal justice system and the response is, in essence, “computer says no”? The guidelines on compensating for wrongful conviction are just that … guidelines. Compensation payments made by the government remain a matter of “prerogative”, given on an “ex gratia” basis. If the Labour government wanted to be kind to Mrs P, then it is entirely free to divert from the guidelines and do so.

Second, the decision to exclude wrongfully convicted persons sentenced to home detention from the government’s compensation guidelines makes little sense. Here’s how Andrew Little, the then-minister-of-justice, explained the decision in September last year: “You get to be in a place you’re familiar with, usually with people you’re familiar with … It’s not the level of regimentation and stony-faced existence you’d get in prison.”

There’s an element of truth to that. Home detention isn’t as complete a removal of liberty and other freedoms as is imprisonment. However, it is still a severe restriction. You have to remain in one place for up to an entire year, only leaving it for extremely limited purposes approved by a probation officer. Imagine living under level four lockdown for 12 months, with no exercise breaks or supermarket trips beyond your property. And as the court may impose conditions on you while you are on detention, you may not even be allowed wine to see you through these long days.

Then consider the reasons why the guidelines say a person wrongfully imprisoned should be given a base rate of $150,000 for “non-pecuniary losses” per year locked up:

• Loss of liberty;
• Loss of reputation;
• Loss or interruption of family or other personal relationships;
• Loss or interruption of school or study opportunities;
• Mental or emotional harm.

At least three of these five reasons apply to home detention just as they do to imprisonment. Sure, they may not apply with quite the same force; prison is considered “tougher” than home detention. But, that’s only a reason to give a lesser amount of compensation, not to deny compensation altogether.

In fact, this is what the guidelines already do. They provide for compensation at a lower rate for any time that an imprisoned person spent “where there are significant restrictions on liberty as conditions of … bail or parole.” So, this sort of outside-of-prison loss of liberty will get compensated for – but only if a person also spent time in prison. If a person has more significant restrictions on liberty placed on them due to being on home detention, it apparently won’t get compensated for.

Which brings us to the third point. The guidelines’ exclusion of home detention appears pretty arbitrary and unreasonable, given the stated intention to compensate for certain specified harms. Furthermore, Kris Faafoi has publicly rejected the idea of compensating Mrs P before her lawyer even has made a formal request. He’s treated the (arbitrary and unreasonable) guidelines as if they were a binding legal constraint on his actions, rather than guidelines to aid him when making recommendations to cabinet.

That makes his refusal look somewhat vulnerable to legal challenge to me. Just because any decision on compensation ultimately is for cabinet to make as an exercise of prerogative discretion doesn’t remove the role of the courts in reviewing it. After all, when Amy Adams, then minister of justice, decided not to adjust the guideline compensation awarded to Teina Pora to account for inflation, the High Court told her she’d got it wrong.

As such, when Mrs P’s lawyer does put her formal application for compensation before Kris Faafoi, he might want to think long and hard about actually saying “no” to it. For one thing, he serves in a government where kindness is queen. It costs little to just do the right thing. And for another, if he won’t do this willingly, he may find that the courts are prepared to make him do it anyway.