Sentencing (Community Sentencing to Fit the Crime) Amendment Bill

The Government will be opposing this bill. Normally in Government we have some sympathy for Opposition members, who without the resources of drafting and of policy advice cannot always be expected to get a bill absolutely right. But that is no excuse for this bill, which would be one of the most shocking examples of inept, incompetent, inconsistent, inaccurate, and downright dishonest legislation that I have ever seen—and I have been here for a while to judge a number of members’ bills. This one is an absolute shocker.

Muriel Newman began her speech by claiming that the Sentencing Act took away the judge’s power to determine an offender’s sentence, and handed it to the probation service and the Parole Board. That is simply not true. Under the Sentencing Act judges sentence offenders and the Department of Corrections administers those sentences, just as they did under the previous law. But having said something that was not true, Muriel Newman then stated later in the bill that she wanted to implement what she condemned at the beginning of her speech. In fact, this bill would allow a probation officer who is supervising a community work sentence to add time to that sentence for non-compliance, without reference to the court. That would pass over sentencing powers from judges to probation officers, which is the exact opposite of what she said when she began her speech.

Then—if one tells a whopper, one tells a big one—Muriel Newman said that this Government had ignored the 1999 referendum on law and order. Now that is absolute nonsense. In 1999, 92 percent of New Zealanders voted for a tougher line to be taken on law and order. That referendum was effectively a referendum on 9 years of the previous National Government’s incompetence and inaction. There were 9 years of police cuts. The very thing that the National Party now says that it is against, it did for 9 years while in Government. Because of the INCIS blunder—the biggest blunder by any Government in recent history—National members were going to cut 500 police officers from the police rolls after the 1999 election. We have evidence of that. That is duplicity, that is dishonest, and that is just—I cannot use the “h” word in this House, but I think Madam Speaker knows what I mean. We had 9 years of record high crime, but we had absolute inaction on that from the previous National Government.

Well, we have turned that around with the Sentencing Act—an Act that for the first time does not talk about getting tough; it does get tough. It puts away the worst murderers in this country for a life sentence with a minimum non-parole period of 17 years. The previous National Government said it would get tough, but did nothing. We have bail laws that state that if a person has a track record of serious offending and has continued to offend while on bail previously, that person will be denied bail. Yes, that has increased by a very large percentage the number of people who are held in custody while they are awaiting their court case, but that is done for the safety of the community, and I make absolutely no apology for that. We have a Parole Act that states that the first thing the Parole Board should look at is the safety of the community. That is its paramount consideration. We did that. National talked about it and did nothing, and the ACT party was an absolute apologist for the last 3 years of that failed National Government. Perhaps ACT has recognised that, because it is now fighting like cats and dogs with the National Party. If National cannot form a coalition in Opposition, what sort of coalition could it form to create a Government?

Muriel Newman then had the effrontery to talk about victims being sidelined by the sentencing laws. I point out that for the first time, the Sentencing Act increased the role of the victim in the sentencing process. The Parole Act increased the victim’s role in parole and release decisions. We passed the Victims’ Rights Act, and that Act is the first time since the last Labour Government that we have had legislation put in place to enhance the role of victims.

The Greens will also be opposing this bill. As I read through the member’s bill, it seems to me that there is some confusion about what the different parts of the Sentencing Act are intended to achieve. So I would like to go through some of the clauses and highlight what I think are some of the problems with regard to the member’s bill.

The first one is in clause 4, where sections 46 and 47 of the principal Act are repealed. Section 46 provides guidance on the use of the sentence of supervision, and states: “A court may impose a sentence of supervision only if the court is satisfied that the sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.” I think that amendment relates to the comment in the explanatory note of the bill about the fact that the purposes of sentencing should include other factors. But if we go to section 56 of the Act, which is about community work as opposed to supervision, we find it is clear that when imposing a sentence of community work, the court must give particular consideration to whether the nature and circumstances of the offending make it appropriate for the offender to make compensation to the community in the form of work in addition to, or instead of, making reparation, and whether the sentence is appropriate having regard to the offender’s character, personal history, and any other relevant circumstances. I think that shows a confusion about the different purposes of supervision and community work in the Act.

Clause 6(2) of the member’s bill proposes amending section 52(2) of the principal Act by inserting “(ba) conditions requiring the offender to submit to routine or random testing for the use of illegal drugs:”.

It seems to me that under section 52(2)(c) of the Act that condition can already be applied. It states: “any other conditions that the court thinks fit to reduce the likelihood of further offending by the offender.” Clearly random testing for drugs would be a condition for someone where drug use is a contributor to his or her offending. I cannot see why, given the enormous amount of time and money that would go into drug testing offenders, one would use it unless it was for the purpose of reducing further offending. So it seems to me that this is a pointless provision to put in the legislation.

Then clause 6(3) states: “Section 52 of the principal Act is amended by repealing subsection (3).”, which states: “No court may impose a sentence under this section that the offender pay any fine, reparation, or other sum ordered to be paid on conviction …”. I think again that shows some confusion, because other parts of the Act are concerned with achieving that very purpose. It seems to me that the removal of subsection (3) would actually create confusion in the Act, and confusion around the different types of sentencing. I do not think that amendment would be helpful.

Clause 6(4) of the member’s bill proposes adding to section 52(5) of the principal Act, which now states: “An offender does not breach his or her conditions for the purposes of section 70 if he or she withdraws consent to taking prescription medication.” The member wishes to add “, but the withdrawal may trigger the application of alternative conditions or an alternative sentence imposed at the time of sentencing, or on application … .” Now let us be clear about this. For the purposes of section 70, the section in the principal Act allows a person to be given a term not exceeding 3 months, or a fine not exceeding $1,000. It does not state that there are no consequences if someone then withdraws his or her consent; it simply states that one cannot stick the person in prison or fine him or her. But clearly there is provision, under section 54 of the Act already, for a probation officer to apply for a variation or cancellation of a sentence of supervision. That is all laid out in section 54 of the Act.

Again, I think that there is some confusion in the member’s bill, whereby she seems to be trying to put in conditions or clauses that are already permitted in the principal legislation. It really makes me wonder about the actual purpose of the bill.

I rise for the ACT party and for Muriel Newman, whose Sentencing (Community Sentencing to Fit the Crime) Amendment Bill was drawn, to speak in support of the bill. I worked closely with Muriel Newman in preparing the bill.

💬 Nandor Tanczos: Oh, that explains it!

I believe that Mr Tanczos would be well aware there are unlikely to be very many misconceptions on my part about what the Sentencing Act and the Parole Act do, after the time that we put in to passing that legislation in 2002. I was not surprised to hear Phil Goff sing the same song that Mr Tanczos sang on this bill. The first thing Mr Tanczos turned to, of course, was the provision that suggested that people on parole—offenders under supervision—should be required to stay free of illegal drugs, and that there should be random testing, or that it could be imposed as a condition of parole. That is obviously a subject dear to his heart, and though Phil Goff did not address it, it was once a subject dear to Phil Goff’s heart. The Hon Phil Goff started his career as Minister of Justice with a ringing speech in which he undertook to reform the cannabis law. I think that Mr Tanczos will agree there was encouragement in 1999 for him to think that his moves to get cannabis legalised would get some official support from Labour. But that prospect seems to have faded, as it became clear that the electorate would not support that.

We have now had a series of speeches that tried to duck the real issues raised by this bill. First, I say that judges no longer pass sentences. Judges, instead, send people off to the Department of Corrections, and it is the head office in Wellington that decides what the real sentence is. When it comes to community work, community work sentences do not mean a thing to many offenders. Community work sentences are essentially optional. What we have in some areas—and we cannot get accurate figures—is a completely demoralised probation service that organises supervisors to turn up. It has no idea how many people it will be supervising, because community work now is based on people turning up if they do not mind doing so. In some areas the turn-up on a typical Saturday is as small as 19 percent. So a sentence that was supposed to be a punishment to deter offenders, and that was supposed to make sure people felt a price was being paid for committing crime, is now the very opposite of that. It sends a message to people—a message that Labour actually wanted to send—that the Government apologises for punishment. It sends the message that the community is a sucker.

The bill also restores, or tries to restore, a power that was very effectively used in the days when New Zealand had a low crime rate—that is, non-association orders. It states that people sentenced to supervision can be made subject to conditions against associating with gangs. Non-association can be a condition of remaining under supervision instead of going to prison, or instead of going into a harder sentence. That is very important. At the moment the Sentencing Act makes it very plain that the only reason that a supervision order can be made is in the interests of the rehabilitation of the offender. So a supervision order cannot be used, for example, to ensure that the offender is properly punished. It cannot be used to ensure that the offender is not out there encouraging others to offend. This bill states that one of the express purposes of a supervision order should be to make it a condition to “reduce the risk of offending by associates of the offender;”. The whole focus of the supervision order in the Act is on the particular person who is being sentenced, when the purpose of that kind of order should be focused on his or her associates: on the gang if it is gang offending, or on those people whom offenders would encourage or mislead—the bad company that every community’s wisdom knows is the likely cause of problems for young people, particularly.

The bill also requires a judge, when he or she is replacing an ineffective sentence of community work with a sentence of imprisonment, to take into account the unexpired period of the community sentence.

I rise on behalf of United Future to debate what I think is actually quite an important bill. I want to know from the Minister, after listening to his speech, why he is afraid to send this bill to a select committee to debate its merits openly. What is he frightened of? This bill actually talks about a lot of the things the public is talking about—but not the politicians, who hide behind things.

Through things like the Norm Withers referendum, the public wants answers to the very real crime crisis in our community. We can hide behind the silly numbers the police try to play down as far as the crime rate is concerned, and we can try to hide and obfuscate things about how the court system operates, but ultimately this bill is about some of the things we need to talk about. Whether or not the Labour Government decides to support the bill, at least the bill should see the light of day through the select committee process, in order to debate the very important issues it presents.

The Sentencing (Community Sentencing to Fit the Crime) Amendment Bill restores discretion and power in relation to community sentencing back to judges for the sentencing of criminal offenders. This bill, if passed, will return to the judge the power to define the sentence of an offender before the bench, rather than to have the judge be nothing more than the mouthpiece of officials from the probation service and the Parole Board. The real need for this bill has been brought about because the Sentencing Act of 2002 reduced to one-third the sentence that must be completed before parole becomes possible. Whether it does that is not what matters; what matters is the effect of putting that into the hands of the Parole Board.

One of the things that is interesting for me is the fact that the Sentencing Act was much mooted by this Government as providing tougher legislation and a tougher regime than there was previously. But the fact of the matter is that the average sentence has been increased, since 2002, since this Act, by only 6 measly months. A lot of that can be explained, sure enough, by high-end criminals having had longer sentences, but it does not explain that for the main lot of offenders sentencing still remains a joke.

The fact is that the police pick people up and then there are 35,000 cases still to go to court, still to see the light of day. What does that tell offenders? It tells them that they are not accountable. What does that tell victims? It tells victims that they do not matter. I do not see any reason why bills such as this, that want to try to put a bit of initiative back into the hands of judges, ought not be discussed and pushed forward into a select committee. I think the Government ought to reserve the right to decide ultimately whether it supports the bill, but at least we should have the debate. I say to the Government: “Don’t hide; don’t run away from the problem; don’t stick your head in the sand and pretend it is not there. Face it!” This bill is one way we can address some of those concerns.

An obvious question to ask is why courts should have control over the nature and effect of sentences, which is actually the question that Muriel Newman’s bill poses. Firstly, the judge sees all the evidence. It equips him or her to decide on all the relevant information, including the courtroom demeanour of the offender. Other than the defence counsel, no one else from the criminal justice system has greater one-on-one time with the evidence. I think that is an important point.

Secondly, section 47 of the Sentencing Act provides that where a court imposes a sentence of supervision in respect of two or more offences, the sentences must be served concurrently. That is absolutely against the interests of victims, and against the interests of the law-abiding public. The bill proposed by Muriel Newman seeks to repeal that provision, and I for one would absolutely agree with doing that. I think most members of the public would, as well. We are sick and tired of people getting discounts for committing multiple offences, simply because our criminal justice system is run by ideology rather than by common sense and the pragmatism shown by the public.

Thirdly, the bill allows for the court to require offenders to submit to routine or random drug tests, if it sees fit. How can that be an abrogation of offenders’ rights? That is an absolutely key issue. If a drug culture is part and parcel of the offending, it ought to be subject to the court’s discretion.

The bottom line is that United Future will support this bill, because we should demand sentencing that is appropriate and in proportion to the crime.

This evening we are debating the Sentencing (Community Sentencing to Fit the Crime) Amendment Bill, which is sponsored by ACT’s Muriel Newman. I am chair of the Justice and Electoral Committee, and one of our early tasks after I became chair in 1999 was to consider the legislation leading to the Sentencing and Parole Bill, and then to consider that legislation itself. Eventually, that bill split to become the Sentencing Act and the Parole Act. I guess one of the themes around that, as both Marc Alexander and the Minister mentioned, was the 1999 referendum.

I think that Labour has delivered on the key elements of that referendum. One of the extraordinary elements of this Government is that we have succeeded, both in terms of what one could see as the community-focus parts of the Withers referendum—particularly around building the rights of victims—and also in terms of increasing the sentencing for the worst offenders. I was fascinated, when in conversation with Garth McVicar from the Sensible Sentencing Trust only a couple of weeks ago, to hear him say that in his view this Government has done a massive amount in the last 5 years to implement the principles of that referendum.

Given that, I turn now to look at what the Sentencing Act was all about. A couple of things come to mind. The first was more certainty in sentencing. Before the Sentencing Act went through, I can well remember people right across Parliament being very critical of judges being inconsistent. Yet this bill restores more responsibility to judges and, as the notes about the bill say, “reinstates court control over punishment.” So I am not sure that that is the direction we want to go in, at all.

The second thing that the Sentencing Act does is widen the range of coherent and structured options for courts to be able to use. Within that range, supervision is one option. Supervision is designed to minimise reoffending, while promoting rehabilitation and reintegration. Supervision is on the sentencing menu: it is flexible; it is relatively unrestrictive; and it is often imposed side by side with other more restrictive sanctions, such as community work, to address the rehabilitative needs of the offender. From a principled point of view, I would say that if an offence warranted a highly restrictive response then supervision would not be appropriate. Reparation, fines, community work, or imprisonment are always available. So in my mind, supervision is one of the key elements of that range and I think it should be approached and amended only after great discussion.

The intention of that sentencing legislation was clearly to give the most serious offenders, and also habitual reoffenders, longer sentences, as well as to introduce those more imaginative options. If we look at the facts, we see that there has been an astonishing success story since the Sentencing Act went through. We do, by the way, have the lowest crime rate in 20 years, and I think these debates should take place in that context.

💬 Stephen Franks: Rubbish!

I prefer to look at the official figures rather than to listen to Mr Franks, in that respect. We have the lowest crime rate for 20 years, yet in 2003, which is the last year for which we have figures, more offenders were imprisoned than in any year in the 1990s. The average length of a sentence was 16 months—up from 12.9 months under National in 1994. The average non-parole period imposed for life sentences in 2003 was 13½ years—3 years longer than it was when National was in power. For the first time on record, over half of life sentences had a longer non-parole period than the standard minimum of 10 years. Under the Sentencing Act, 23 percent of convicted violent offenders were sent to jail last year to serve an average sentence of 29.7 months—the highest figures on record. To me, that is a sign that the legislation is delivering what it was intended to deliver.

However, a wise Parliament obviously looks from time to time at legislation, so I came to Muriel Newman’s bill with an open mind—as I always do. But when I read in the notes to that bill that it reinstates court control over punishment, and when I read the comment that the Sentencing Act turns the sentencing focus into a charade, I knew this was nonsensical legislation. Labour opposes it.

I raise a point of order, Mr Speaker. I did not hear one of the comments, and I want clarification. Was that an open mind or an empty mind?

The ASSISTANT SPEAKER (Hon Clem Simich): I think the member heard it.

I would like to start by reminding the House that if there is merit in a member’s bill there is a longstanding tradition that the bill will be referred to a select committee for further consideration. New Zealand now has the highest rate of violent crime than at any other time in our history and that crime is an absolute key concern of New Zealanders, so any bill that seeks to improve the situation to make New Zealand a safer society merits consideration. I would like the Labour Party members to take that into consideration when they vote.

At the ACT conference at the weekend we heard from Ray Mallen. He is the Mayor of Middlesbrough and was a police chief for 30 years. He told us how zero-tolerance policing works; it brings down crime. But he reminded us that the key to good policing is that it is accompanied by appropriate sentencing. This bill seeks to improve sentencing in New Zealand—not custodial sentencing, but community sentencing and supervision.

In this country we are suffering from a soft-on-crime Labour Party that has undermined sentences since it has been in power. It cares more about the needs of criminals than victims; it has effectively eliminated punishment as the key purpose of sentencing; it requires offenders to be kept in the community as far as possible, rather than locking them up; it has slashed the length of prison sentences; and it has given the power over sentencing to probation officers and the probation service—stripping it away from the judges.

This bill brings back common sense into sentencing for community work and supervision. It gives judges the power to determine things like random drug-testing, alcohol bans, and the fact that offenders should not associate with known criminals. Under this bill, the judge could require offenders to write letters of apology to people whom they have intimidated, people whom they have shoplifted from, or whatever; require people to clean graffiti off walls; and require offenders to be publicly humiliated if that is what the judge believes will actually bring about remorse in the offender. We have lost all those common-sense approaches. The bill also brings cumulative sentences, instead of concurrent sentences. If an offender receives a sentence of 1 year, 6 months, or 9 months it is all added up, instead of being done in one sweep.

I think the key point is that a judge knows better than anyone else in the court what will work for an offender. Under this bill he will be able to use sentencing as a tool, not only to punish the offender but also to send out a strong signal that will discourage crime. The bill seeks to make the sentencing of offenders an effective tool to reduce crime in New Zealand, and because of that it deserves the support of this House.

I say to the Labour Party that if it votes down this bill and does not allow it to go a select committee, then it is simply sending out the signal to New Zealand that Labour is, indeed, soft on crime. This bill is a genuine attempt to make our sentencing laws better in this country, and because it is a member’s bill the Labour Party has a responsibility to support such a bill to a select committee so that the public of New Zealand can come along and have a say.

In 1999 the people of New Zealand overwhelmingly sent a message to the Government that they wanted a Government to be tough on crime. It is an absolute tragedy to see the way the Labour Party has undermined crime and punishment in New Zealand. This bill is an attempt by an ACT party member to improve the situation, and I urge the Government to support it.