Criminal Justice Reform Bill

Part 2, which covers clauses 28 to 142, includes debate on schedule 3.

It is good to get to Part 2 and to some of the meat of this legislation. This will be a brief debate, I am sure, and I sense universal support for the provisions in this part, but, none the less, I believe we will have a meaningful exchange. This part, of course, gives effect to some of the critical parts of—[Interruption] Mr Finlayson is yet again getting into his usual personal reflections. I suggest the member goes back and reads his own maiden speech. He might find it interesting.

Part 2 creates three new non-custodial sentences: firstly, home detention, which becomes a sentence in its own right, rather than a way of serving a sentence of imprisonment. I think the member opposite, Mr Power, is indicating his agreement with that, and that is something we have had considerable discussions about. I think it is generally seen by members around the Chamber as a positive move. I acknowledge Ron Mark’s involvement in the development of this particular part of the bill. He put a lot of time and effort into it, and has taken a lot of interest in this area. I properly acknowledge his input. The other non-custodial sentences are intensive supervision, which is a more comprehensive version of the supervision sentence, community detention, and electronically monitored curfew provisions.

The new sentence of home detention will be the second-most restrictive option in the sentencing hierarchy, and will certainly be an alternative to what has become increasingly seen as a short sentence of imprisonment. I think it will provide for the courts a meaningful alternative in appropriate cases—we should always emphasis “in appropriate cases”—to a custodial sentence, which often has been the default position because of the absence of a more appropriate sentence.

This part also contains amendments to improve the operation and credibility, I think, of the current community-based sentence. It is fair to say that the credibility of those sentences does need to be enhanced, in order to restore the confidence of the community and of the judiciary. Again, if we can restore that confidence, then I think we will see an increased use of those sentences. The passing of this legislation will provide the means to achieve that.

Part 2 also includes provisions around the sentencing guidelines, which we have recently debated, including a requirement that the courts impose sentences consistent with guidelines, unless satisfied that this would be contrary to the interests of justice. That, of course, provides a necessary safety valve for judicial judgment, and it is an important part of this provision. Part 2 also alters the parole eligibility for long-term sentences that are currently more than 2 years, from one-third to two-thirds of the court-imposed sentences. Offenders may still be kept in for the entirety of the sentence, of course. That is a decision for the Parole Board. But what will be very clear is that, firstly, two-thirds minimum will be served, before eligibility for consideration of parole; and, secondly, parole will clearly be seen as a consideration, not a right.

Part 2 repeals the existing home detention regime, as I have indicated, for offenders sentenced to imprisonment. In its place, offenders may be sentenced to home detention, or may have residential restrictions imposed, as a condition of parole; both of which operate similarly to the current home detention regime. Also in Part 2, the police, in addition to the Department of Corrections, get the power to apply for the recall of an offender, on the grounds that the person poses an undue risk to the community. Both the police and the department will also be able to provide the Parole Board with confidential information, which will not be disclosed to the offender. The board will have the power to summons witnesses. I think all of these provisions are important additions to the legislative framework and to the tools of the courts to put an appropriate mix of sentencing into play—I think it is fair to say in the absence of an adequate mix of options currently.

Finally I will mention briefly Supplementary Order Paper 121 in my name that reinserts Subpart 4 of Part 2, which extends the sunset clauses in the Prisoners’ and Victims’ Claims Act 2005.

💬 Simon Power: You had me until then.

I know I can convince Mr Power of the wisdom of this move. Members will recall that the Prisoners’ and Victims’ Claims Act 2005 had three main features: the monetary compensation as a remedy of last resort, the simplified process for victims’ claims, and the extended limitation period.

The Act has two sunset clauses: first, the guidelines on when compensation is available expire at the end of this month, and second, the simplified claims process applies only in respect of any final judgment for compensation or out-of-court settlement made before 1 July 2007. This Supplementary Order Paper contains provisions extending the operation of the guidelines to 30 June 2010 and the simplified claims process to settlements made before 1 July 2010.

The Minister in the chair, Mark Burton, started his contribution to this Committee stage by saying that he was looking forward to a constructive discussion about Part 2 of the Criminal Justice Reform Bill. I will give him a constructive discussion, because during the select committee stage National was keen to split this bill into its two natural parts: the part that deals with the Sentencing Council and the part that is essentially the criminal law reform part of the bill. In fact, there is a Supplementary Order Paper 125 in my name that will attempt to do that at a later stage. I also note the Minister’s further Supplementary Order Paper—one of five, I think, at last count—which will create five different bills as a result of the natural flow-on of different changes to different Acts.

I want to make clear that although National was opposed to the Sentencing Council and remains opposed to the Sentencing Council, and, pending changes not being agreed to by the Government during the Committee stage will vote against the third reading of this bill, National will be supporting the changes to sentencing, bail, and parole legislation in Part 2. Our minority report made clear that we were opposed to the Sentencing Council. Our minority report made clear that we will not support an extension of the sunset clause in respect of victim compensation paid to offenders who are incarcerated. But I can say for the Ministers listening that National will support the introduction of home detention as a sentence in its own right. We believe this to be a positive move, not because we believe alternatives to custodial sentences are essential in order to reduce the prison population but because we believe home detention could be a useful tool to reduce reoffending over time. Public safety is the No. 1 consideration for National on the issue of home detention. Sir Douglas Graham was the person who introduced home detention to this House in the first instance—it would be nothing short of churlish for National not to recognise that at this point—and I say to the Minister that Part 2 will get our support in respect of the home detention provisions.

Part 2 will get our support with changes to the Parole Act. In respect of the two-thirds eligibility for those sentences over 2 years, we say that it should always have been two-thirds. Let us not escape what is sitting under our noses tonight, which is that in 2002 when Phil Goff came down to this Chamber and passed the sentencing legislation to change the eligibility for parole to having only one-third of the sentence served, we said to the Minister then that no good would come of it. Tony Ryall, our justice spokesperson at the time, said to Mr Goff that no good would come of it. Sure enough, it has taken the Government another 5 years but it has worked out that the public will not stomach eligibility for parole at only one-third of a sentence served. It is a hard lesson that the Government has had to learn. If it had listened to National in the first place, it would not have changed from two-thirds eligibility. So we will support the reintroduction of a two-thirds hurdle for eligibility for parole. We think that is something that should never have changed in the first place.

The third thing that National is supportive of—although not without controversy, as we found out during the Justice and Electoral Committee—are the new confidentiality orders. The select committee took some care to get the provisions around these new confidentiality orders done in a sensible and constructive way. Let us be frank: this is the reaction to the Graeme Burton fiasco. This is the Government’s response to the Graeme Burton fiasco, whereby information that comes to light, whether proven or not, will end up before the Parole Board, subject to a confidentiality order, for the board to take those facts into consideration at the point parole is considered. National supports that move. All information should be placed before the Parole Board at that point. We know from the tragedy that surrounded the Graeme Burton fiasco that there was information that, had the Parole Board had it to hand, a different decision might have been forthcoming to avoid that tragedy. I emphasise that the use of these confidential orders is pretty exceptional. Charles Chauvel will no doubt speak to this, because he was quite heavily involved in the drafting of these provisions. These orders are exceptional and should not become the norm, but they will be useful to the Parole Board in certain circumstances and we will certainly support the Government on those provisions.

Having said those two or three things, it is clear that National will be voting for Part 2 of this bill. We think that the introduction of a Sentencing Council will ultimately outweigh the good done by Part 2. But be in no doubt that National supports parole eligibility at two-thirds of sentences, not one-third, and be in no doubt that National supports confidentiality orders being accessible to the Parole Board where information at hand could make a difference to the granting of parole. We also support home detention as a stand-alone sentence.

We will not be supporting Supplementary Order Paper 121 relating to the Prisoners’ and Victims’ Claims Act. I want to remind a couple of the other parties in the Chamber of their positions at the time the third reading of that bill passed in 2005. New Zealand First was opposed to the legislation and the Green Party agreed to a sunset clause on the following basis. I give a direct quote from the contribution made by Nandor Tanczos in the third reading debate: “It is exactly what the Greens have secured—a written commitment”—this is in exchange for agreeing to the sunset clause—“to establish an independent prison complaints authority by the end of 2006.” The reason the Greens gave the Government its support on this legislation in 2005 is that they got a “commitment to establish an independent prison complaints authority by the end of 2006”. Well, I say to Green Party members, it has not happened. It has not happened. Green Party members were duped in 2005. They got a commitment from the Government to get an independent prison inspectorate. That has not happened. I tell them to vote against an extension of the sunset clause.

We will be attacking this particular Supplementary Order Paper with some vigour during the course of the next 2 to 3 days, because this legislation has no place in our law. It is nothing that an independent prison inspectorate could not deal with. Prisoners should go to the police if they are assaulted, rather than making victims relive their crimes by applying to trust accounts to get money that has been awarded to offenders. There is nothing in this for victims of crime. Victims are forced to relive those crimes in order to access these moneys. National is opposed to that, as was New Zealand First in 2005.

We will be going through this part of the bill piece by piece over the next short while. Let me make the position clear again. National will be supporting Part 2 at the Committee stage. We will not be supporting the Minister’s Supplementary Order Paper 121, relating to the amendments to the Prisoners’ and Victims’ Claims Act.

It is a pleasure to stand and speak in support of the Criminal Justice Reform Bill. I am very pleased to see National Opposition members acknowledging at least a little support for this bill, but it is a major disappointment that that support is very minimal.

This Labour Government’s approach to justice and crime is commendable, and it is something that we in the Labour Government are very proud of. We believe that the needs of victims are central to thinking about crime and justice. We have actually put up, rather than just indulged in all the rhetoric we hear from the other side of the Chamber. The Labour Party in Government is, in fact, the only party to have ever passed legislation to enshrine victims’ rights. That was in 1987, and we have done it again much more recently, in 2002. This bill builds on that legislation and works towards certainty, clarity, and a better justice system for all.

This Government responded to public concern, with the Bail Act of 2000, the Sentencing Act of 2002, and the Parole Act, which followed the Sentencing Act in the same year. These laws mean that more offenders are being caught, sentences are longer, and inmates are serving a greater proportion of their sentences. That clarity and that certainty—certainly to victims—is reassuring. It is certainly a very difficult time for victims, but having some certainty in sentencing has found favour with a broad range of people throughout New Zealand. I can see Mr Finlayson nodding, reasonably wisely, over there.

I know that this Government has a strong record on law and order. In fact, we are seeing the lowest crime rate in New Zealand for quite some time, and improvements made since 1999 to justice legislation have tightened up the penalties facing dangerous and violent criminals. We now have the lowest rate of crime since 1982, although we would not think so when from time to time we hear the rhetoric from the other side of the Chamber.

The bill is a continuation of this Government’s commitment to a fair, accessible, and effective criminal justice system. It is about improving what we do in prisons, in rehabilitation, in incorporating employment, and in reintegration into our communities. Certainly, the community-based systems that have been introduced—community detention and intensive supervision—go a long way towards helping to steer offenders away from crime in the future. It does this by placing greater emphasis on offenders’ work and life skills. We know that a large part of dealing with criminals in the justice system is not just about punishment or being accountable for one’s actions but about actually setting up a system through which criminals are rehabilitated, thereby enabling them to go on to make a meaningful contribution to society rather than travel down the path of crime again.

To make home detention a sentence in its own right is a very sensible and common-sense thing to do. It is a useful option for offenders—offenders who would otherwise spend a very short time in prison. By abolishing back-ended detention, we will have a much more sensible use of the home detention system.

Certainly, to amend the parole system to reflect greater truth in sentencing is very much part of this legislation. Parole will be an option only after a prisoner has served two-thirds of his or her sentence, rather than the current one-third of a sentence, and only for sentences of more than 12 months. Prisoners serving sentences of fewer than 12 months will be absolutely ineligible for parole. It is expected that instead of the average prisoner serving 62 percent of his or her sentence, which is currently the case, he or she will serve over 80 percent of it. I feel that that approach is common sense.

It would be remiss of me not to say, following that member’s speech, that it will be wonderful for the people of Papakura and Manukau to hear from the Government that, apparently, crime has gone down. Well, I say sorry to Ms Pillay but it has not gone down in our patch. It is not down in South Auckland—not violent crime. It has gone up, by about 18 percent last year. That is what is happening.

When I first came to Parliament a mere 5 years ago we did not even know there was this drug called P. We did not know about methamphetamine. Now, under this Government, almost every day there is a story in the newspaper about some celebrity, sports star, or somebody else who is addicted to this dreadful drug. That is why this Criminal Justice Reform Bill is so important.

It is important because it deals with parole. We have said that we will support the rule that prisoners must serve two-thirds of their sentences before they come out on parole. One of the things that Mr Power mentioned earlier was the fact that it was Phil Goff who came down to the House and announced those great, big new sentencing guidelines and huge sentences that would happen. But the little kick was that he said of prisoners: “By the way, they can come out after one-third of their sentence.”

💬 Chester Borrows: Where is he tonight?

We have not heard from Mr Goff tonight, I say to Mr Borrows. I do not know why he is so quiet, but we have had to fix that. It has taken all these years to fix it.

I commend to the Committee a Supplementary Order Paper put forward by my colleague Chris Finlayson. I would like the Committee to consider the very serious point he has put in front of us, which is in relation to his new section 21A, proposed to be inserted by clause 40: “Court must have regard to sentencing guidelines”. The Government stated in its new section 21A that the “Court must adhere to sentencing guidelines”. In other words, this is another little kick to judges—

💬 Nathan Guy: It hurts.

—where it hurts—to tell them they are not allowed to make some decisions.

I have heard some discussion tonight about how dreadful it would be if judges were to give different decisions to different people. I have heard about regional differences, and apparently this is a terribly bad thing. Well, I hate to tell some of those members, who do not seem to realise it, that criminals commit crimes, and that every single crime is different. Every single crime is different. A murder is not just a murder, because of the victims involved and because of the circumstances in each case. Unfortunately, we have only one penalty for murder, so I would say that perhaps burglary is a better example. Somebody might come into a house, burgle the house, and destroy the house—break everything, ruin all the photographs, and just vandalise the place. That will clearly be more serious for the victims than a situation where someone comes in, burgles, and takes the TV. Clearly there will be different ramifications but, on the face of it, it is a burglary.

I think it is very important that we retain for judges the power to use their brains. They all have brains, and they are all highly intelligent people. They are all people of absolute integrity or else they would not have been appointed, and they are all people who are absolutely dedicated to doing the job. Judges give up a lot when they become judges. We know as MPs that we are recognised in the street, that people want to give us their advice, that they want us to do all sorts of things, and that they want our support. Judges have all of that, yet they have no anonymity, at all. They are bagged all the time either in Parliament or in the newspapers and elsewhere. They are bagged by people who should know better, and they lose out a lot. Their children lose out, because who would want to go home and tell dad or mum the judge what has been going on at the school party? The fact is that judges are always in a difficult position.

If a Cabinet Minister is caught drunk driving, he or she will just lose his or her warrant for a little period of time, and then that Minister is back in. But if that happens to a judge, then he or she misses out altogether or is pushed sideways into some other role that everyone knows is actually a demotion, and eventually that judge goes away. That is what happens. Judges have to meet higher standards of behaviour and accountability than we, as members of Parliament, have to meet. No matter what we do, if we turn up in 3 years’ time and are re-elected, it is all on again and we are in there again. But judges have to stand by the rules they have to enforce.

Judges are people whom we should take very seriously. So when judges are told by this Government that they must adhere to sentencing guidelines unless they are satisfied—

It is a pleasure to speak on Part 2 of the Criminal Justice Reform Bill. I was amazed to hear an earlier speaker on the Labour side say that this Government was tough on law and order. That is incredibly empty, misleading rhetoric. This is a Government of which I think it can be properly said that justice must not only be seen to be done, it must be seen to be believed. It is as bad as that.

Why do I say that? It is in connection with Part 2 that we see a substantial rewrite of the Sentencing Act 2002. For those of us who were in Parliament at that time, including the Minister in the chair, Mark Burton, it was much vaunted legislation. It was heralded by the Labour Government as the answer to the sentencing regime. There was to be a comprehensive plan, a clear hierarchy of sentences. It was to be the final word, but it was not the final word, was it? Because we now see in Part 2, in the changes that are made to the Sentencing Act, some 67 amendments of varying complexity. We see very detailed provisions relating to, for example, intensive supervision and community detention. So it is right to say that this is a night of rich irony, when we see the Labour-led Government exposed for the sham that it is, and for the falseness of the representations it made as to the effectiveness of the Sentencing Act 2002.

Others have said, and it is worthwhile repeating this in the presence of the Minister, that the changes made by this Government in respect of parole are truly startling. If we look back at the Sentencing Act the regime was very simple. The regime was that the rapist who was jailed for 9 years would be eligible for parole after 3 years. National was shocked at that and I actually believe the community was shocked, too. But Minister Goff stood before us and said that this was the fair thing to do, this was the appropriate thing to do, and this was how the public was to be protected. He said that it reflected an adequate measure of retribution in respect of some of the worst crimes we had known.

Now what do we see? In clause 120 of the legislation we see that a very substantial change to section 84 of the Sentencing Act is proposed. Instead of the rapist being out after 3 years on a 9-year term if parole is granted, it will now be increased to 6 years. There will be some in National who say that even that move is not good enough. I could not believe that Lynne Pillay would stand here in the body of the Chamber and talk about truth in sentencing. Because what truth in sentencing is about is that if the sentence of the court is 9 years, then that is the sentence that is served.

This legislation is not about truth in sentencing. There is a case, I would say, when no parole should be given. Although I support what others have said, that this bill certainly is an improvement on the failures of the Sentencing Act, there will be some who say it does not go far enough.

Progress to be reported presently.

House resumed.

The Chairperson reported progress on the Criminal Justice Reform Bill, and no progress on the Te Roroa Claims Settlement Bill.

Report adopted.

The House adjourned at 9.57 p.m.