Sentencing and Parole Reform Bill

Part 1 of the Sentencing and Parole Reform Bill deals with the main changes to the principal legislation. It involves not only the ACT Party’s “three strikes” policy, on which it went into the last election, but also the National Party’s policy of no parole for the worst repeat violent offenders. It has been a pleasure working with Mr Garrett and the ACT Party on this bill. The party has been very decent to work with, and I thank it for that.

Changes have been made to this bill through the deliberations of the Law and Order Committee, which has been a long process over the last year. I thank the committee chair, Sandra Goudie, and all the committee members for the attention they gave to the bill.

In particular, some issues have been raised about rehabilitation—that perhaps we should just have more of it. I say that we do: we are doubling the amount of rehabilitation in our prisons. By the end of next year there will be double what there was when we took over as the Government. I do not agree, at all, that repeat violent offenders who create victims are themselves necessarily victims. At some stage in their lives those people must take responsibility for their actions. Will someone be old enough at 30 to take responsibility, or will that person be old enough at 40?

I think many of us feel that it is very important to have a system in place in our criminal justice system where people are given warnings about what will happen. I am very pleased with the assistance that has been given by judges and the judiciary, and by Mr Garrett, in relation to Supplementary Order Paper 123, which we are putting forward today, which is about how we can make sure that the warning system works best not only for offenders but also for victims and for the criminal justice system.

This bill is not about locking up people for stealing a loaf of bread; it is very much focused on our worst repeat violent offenders. When we talk about what we can do for them, let us talk about what we can do for victims, as well. One of the things we can do is keep the very worst people locked in secure environments so that they do not create more victims. I know that it is sometimes very painful for people to have to deal with the raw emotions of victims. I know that judges often find it very difficult to deal with victim impact statements, and I know that many of us who have not been the victims of horrendous violent offences find it very difficult to deal with people who are so raw in their emotions. Frankly, I think we are lucky to not be in that situation. My heart goes out to those people; I know that it is uncomfortable. But do members know what? We just have to accept it. It is their emotion; it is their life, or the life of their family member, that has been taken apart, and they deserve to be treated with dignity. This bill will give back some dignity to them and to their families.

The Labour Party has put forward a number of amendments to Part 1, which I will briefly deal with. They relate to clause 5, which inserts a manifestly unjust provision for “three strikes” sentencing, and exclude in new section 86A accidental or negligent manslaughter, for reasons that I will go into later in the debate, and which my colleague has referred to. We have a number of other amendments.

I will make just a couple of points. What I think is interesting about the process around this bill, as we talk about Part 1, is a comment made by the Minister in the chair, the Minister of Corrections, in her summation. I think she said—and I will be corrected if I misquote her—that she does not consider offenders to be victims. To some extent I agree with her on that, but it is very interesting that if we accept—as, for instance, Mr Garrett did when he got into some difficulties in this place in his own office—

💬 Sandra Goudie: Are we talking about Part 1?

Yes, I am talking about Part 1, if the member would listen. That member’s trouble is that she is not chairing the Law and Order Committee now; we have a decent chairman in the chair.

When Mr Garrett got into some difficulties he said a couple of things. He said that things had happened in his life. I think he referred to an oil rig and to a culture in Samoa that, he said, affected his behaviour at the present time. I accept that and I do not argue with it, and I do not say it to make a political point. I think Mr Garrett was actually saying that things happen in people’s lives. For instance, a child who is raped at the age of 5 by his father may indeed turn out to be a sexual predator at age 25. That does not in any way excuse what that sexual predator did, but logically one might say that is the alibi that Mr Garrett used for his behaviour: the environment people grow up in and the things that were done to them do not excuse their behaviour but may have some tangible or intangible intelligent connection that may have promoted their becoming the predator they are today. Maybe there is a connection. I agree with people who say that does not excuse the behaviour. But I argue that there is a connection and, to use Mr Garrett’s point about starting points, we should perhaps be dealing with that starting point, not political pamphlets like this. So although I agree with the Minister when I say that offenders are not necessary victims, because of the nature of their actions, I also think if one looks at their behaviour and the environment in which they grew up and lived in, one might be able to draw some tangible conclusions that might teach us ways to prevent crime from happening in the future.

I will get back to the bill to stop the squawk-box across the aisle. She thinks she is still chairing the Law and Order Committee, but she chaired that committee in such a way that she truncated and shut down any debate about the process surrounding this bill. If she thought that this bill would really work she would have encouraged debate and allowed the Ministry of Justice, the actual authoritative agency that deals with this bill, to make submissions on the amending clauses. The Minister of Justice has become the invisible man on this bill, although in some ways I do not blame him, because he does not believe in it, either.

I will deal with some of the amendments we have put forward. We are putting forward an amendment to new section 86D(2) in clause 5—and I will go slowly for Ms Goudie—by inserting after “maximum term of imprisonment prescribed for each offence” the words “unless the Court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to make the order.” The reason for this amendment is that the legislation states that on a third strike the offender will receive the maximum penalty in prison for that offence, with no parole. When people have criticised the bill for taking away judicial discretion, the ACT Party has repeatedly asserted that the court has the discretion, on a third qualifying offence, to not impose the maximum sentence if it would be manifestly unjust. For example, Mr Hide and Mr Garrett, in a pamphlet on the “three strikes” policy and the Sentencing and Parole Reform Bill, said the following: “The judge sentencing a Strike Three offender will have no option but to sentence the offender to the ‘max’ unless it would be ‘manifestly unjust’ to do so.” This is not correct. The proposed legislation says that although the court has the discretion not to order the sentence to be served without parole if it is satisfied that it would be manifestly unjust to make the order, imposing the maximum sentence on a third qualifying offence is mandatory. Simply put, Labour’s amendment gives the court the discretion not to impose a maximum term of imprisonment on a third-strike offence if it is satisfied that it would be manifestly unjust to do so. That aligns the proposed legislation with at least the public assertions of the ACT Party.

There are many examples of when it may be deemed unjust to sentence an offender to a maximum sentence for a third offence. The most obvious, of course—as has been discussed in the previous debate—is manslaughter, because of the huge variance in the seriousness of that offence. As the legislation is currently written, an offender would receive a life sentence for manslaughter on a third offence, whether the manslaughter was a vicious assault or a tragic hunting accident. In fact, officials came before us and said that it could well be the case—not theoretically but in practical terms—that a person may commit a heinous first-strike offence and get a lesser sentence than a person who commits a third strike and less heinous, if I can put it that way, offence. I wonder what the “get tough” Minister and Mr Garrett will say to the victims of a first-strike offence when the two are compared and they see that something is wrong if we are talking about equity of victims. What emotions will run through the minds of those victims?

If we are interested in justice and in appropriate levels of justice, then issues around manslaughter and its varying nature should be considered. We could have a case where a person commits aggravated robbery twice to, say, finance a drug habit. I am not making any excuses for that person; it is an extremely bad thing to do. It is outrageous and should be punished. But 40 years on, that person may have cleaned up his or her act—I hope that we all believe in that thing called “hope” and maybe in reintegration—and after 40 years of non-offending that person may go out hunting with a mate, a hunting accident occurs, and somebody is killed. I am sure somebody will laugh at this, but it is a real possibility. It may be remote, but it is a possibility that needs to be covered off in this legislation. We have an amendment on the Table dealing with that.

It is not about political points; there are some major holes in this legislation. I have no doubt that the bill will go through tonight. We will oppose it but members opposite have the votes and they will win. We are proposing a number of amendments because, even though we oppose the bill going through, we believe that there are manifest inadequacies and weaknesses within it. I would like an explanation from the Minister in the chair about my example. Let us say a person had committed aggravated robbery twice in his or her career to finance a drug habit, then 40 years later commits a third-strike offence because he or she goes hunting with a mate—I am not excusing it—something occurs, an accident happens, and the “three strikes” policy kicks in. I argue that that is far different from the other end of the variances of manslaughter; we can probably all think of a number of examples of the vicious nature of manslaughter.

I raise this issue with the Minister in all seriousness, and she may want to take some advice on it. I think it is a pertinent issue if we are truly concerned, as has been said, about protecting victims and ensuring that just outcomes flow from this legislation. I do not believe that they will. As we have done in the past with other law and order bills, we offer the Minister what we believe may well be a logical solution. Mr Garrett is a lawyer and I am not, and I would be very interested if he could proffer an opinion on that example and on the other amendments. Even though Mr Garrett and I have our disagreements from time to time, I hope that we both want to pass legislation that at least provides for just outcomes and does not perpetuate, or create as an unintended consequence, unjust outcomes. I assume that all members of Parliament want to do that. I argue that, if the hypothetical example that I have put before the Committee was put into practice, it would be an unjust outcome. If a person who has cleaned up his or her act, has maybe learnt from a first and second strike—maybe—and then kills someone else in a hunting accident, that person would receive a manifestly unjust outcome under this legislation in its present form.

As a relatively new member, I am not sure whether it is my place to do this, but I have learnt in my time here that if one is being serious and is not making political points—which Mr Cosgrove denies he is doing—then the proper way to put forward amendments like Mr Cosgrove’s amendment is to consult with other parties well in advance, so that they have the opportunity to discuss proposed amendments—

💬 Hon Clayton Cosgrove: I raise a point of order, Mr Chairperson. To be helpful, it may assist the member to know that there have been many, many precedents in this House, and in this current Parliament, in fact, when whole pieces of legislation have been laid on the Table and no one has seen those—

The CHAIRPERSON (Lindsay Tisch): That is not a point of order.

Today is caucus day for all parties. If Mr Cosgrove had called me, even this morning, or yesterday, but, more particularly, last week, and said that Labour members had identified the things they did not like about the bill and that could be improved, and asked us how about it, I say I would have taken those amendments to my caucus. We would have discussed them at some length. We would have got some information and advice. But here we are today with those amendments plonked on the Table, with no notice at all, so—sadly—it quite clearly is simply an attempt at point-scoring.

I will go on to the matter of rehabilitation, which was raised by members opposite. I put on record that our party regards—and, in particular, I regard—the desirability of rehabilitation as a no-brainer. I ask how one can possibly argue against rehabilitation on any number of grounds: compassion, for both victims and the criminal; fairness; public safety; and, if we want to get down to it, money. Who would want to have more people in jail at 90 grand a year than we have to have in jail? It is an absolute no-brainer. The problem then becomes how we achieve that. Criminologists are a wee bit like psychologists. They inhabit different schools of thought. There is the “nothing works” school of criminology and the “things work” school of criminology, but even the “things work” school acknowledges that we need to spend a ginormous amount of money to rehabilitate a relatively small number of criminals.

Sadly, one thing that both schools agree on is that rehabilitation is most effective when the person wants to be rehabilitated. Unlike Mr Cosgrove, I have not been to 40 prisons, or whatever he said it was in question time today, but I have been to half a dozen in my time here, and in every single one I have seen literacy and numeracy programmes. I have seen training. In some I have seen industries. I was particularly impressed with a drug therapy group at Arohata Woman’s Prison, and I am corresponding with a couple of prisoners from that group about this very bill. So it is not true to say that there are no attempts at rehabilitation. We could do better; indeed, I think that we should.

I started to mention my experience just this morning of listening to Judge Peggy Hora. I did not ask her, but I think she would classify herself as being on the liberal—with a small “l”—end of the California judiciary. She was at the forefront of the establishment of drug courts in that state, which, putting it very shortly and simply, substitute treatment programmes for prison sentences. As she said in her lecture—it was very good; I did not notice any of the Labour members there—when she first sat on the bench, she gave sentences of X and told drug offenders to go away and sin no more once they got out. Then they came back, so she doubled the sentence and asked what part of “do not do it” they did not understand. Then they came back and she tripled it, and she realised that it was getting nowhere. She did some research and did some study and she decided that drug treatment was the way to go. That makes plenty of sense—plenty of sense.

But one of the problems with rehabilitation efforts in New Zealand prisons at present, as Mr Cosgrove will be well aware, is that there is absolutely no certainty of sentence length. Because of the Sentencing Act 2002, no sentence handed down by a New Zealand judge, aside from a minimal non-parole period for murder, means what it says. Someone who is sentenced to 4 years’ imprisonment might be there for 1½ years, for 2½ years, or for 4 years. There is no certainty, and for that reason a lot of prisoners are not eligible for treatment programmes. This bill, in a perverse kind of way, will change that. At second-strike stage, the prisoner and the jail will know exactly how long the prisoner will be there, and, by definition, it will be a fairly lengthy time.

I have done a bit of research on what happens in Singapore. I am afraid that what I have managed to turn up is relatively scanty, but I think that this is a rough description of what they do there. They have a “three strikes” type regime. As I have said before in other speeches, it is not an American baseball idea; it is actually an idea that is used all over the world. The Singapore programme works like this. When the person comes in, he or she is assessed fully on physical health, psychological health, numeracy and literacy, and education levels. The authorities, to the best of their ability, try to fix up what is wrong with that person. They train him or her for, probably not a profession, but a useful trade—let us say it is as a panel beater. When the person is released, there is aftercare, and the person gets a job. There is follow-up in much the same way as there is in our parole system. If the person offends again, he or she comes back for, by definition, a more lengthy sentence and for special treatment.

That is not 25 strokes of the rotan; it is effectively the authorities having another look at that person to see what they missed last time. Let us say, for example, that the authorities had overlooked a psychological problem and they decided that the person would be better off as a mechanic rather than as a panel beater. They train the person for that and he or she is there for 6, 7, 8, or 10 years, so there is plenty of time. That person gets work experience and comes out. But a person who comes back for a third time goes into a concrete cage and stays there. That is it. Society says that it has put all of these resources into such people, it has trained them for not one but two useful occupations, it has told them what the consequences of their continuing to act in this way will be, and that is it. I would be a little surprised if many members on the other side of the Chamber would disagree with that. That is not what we have here yet, but, certainly, speaking for myself, I would be supportive of having that kind of initiative here.

As I said, there is considerable support across the Chamber for rehabilitation. It is motherhood and apple pie—not “mom and apple pie”, as Mr Hipkins corrected me the other day. But the problem is to actually achieve it. That is the problem we face. Sadly, we now have a generation of violent thugs who do not learn and will not learn. William Bell and Graeme Burton are not unique, and we need to do something about those people. We need to try to get some consensus on how we go about stopping the next generation. It will not be easy, and there is no consensus on it at the moment. We have views on how to stop it. Labour has completely different views. There is no consensus. Each side can cite experts, statistics, studies, and individuals to support its argument, but there is absolutely no consensus. While we try to work one out, we need to keep the community safe from repeat violent offenders. That is what this bill is primarily about and, sadly, we need to think about rehabilitation second.

Firstly, I take up Mr Garrett’s point about the amendments that the Labour Party has tabled here today to the Sentencing and Parole Reform Bill. This is the Committee stage; this is where amendments are tabled. It seems as though the Labour Party cannot do any good, any right, in Mr Garrett’s eyes: either we are not proposing alternatives and therefore we are just politicking, or we are proposing alternatives and therefore we are just politicking. I urge Mr Garrett to look at these amendments. These issues have been around throughout this debate. Probably nobody in this Chamber has been following this debate more closely than Mr Garrett. He knows what these amendments are about. He knows about the concerns about unjust sentencing. Those concerns were raised by the Ministry of Justice: they were raised by officials when commenting on the Cabinet paper. Mr Garrett knows what the concerns are about, and I urge him to look at the amendments that Clayton Cosgrove has proposed, and to consider whether this legislation fits with what the ACT Party has been telling people all around New Zealand about this bill.

In respect of the “manifestly unjust” clause, the ACT Party put out a pamphlet that said: “the judge sentencing a Strike Three offender will have no option but to sentence the offender to the maximum sentence. The only exception is if the judge determines it would be ‘manifestly unjust’ to do so.” That is wrong. This bill says the maximum sentence is mandatory—it has to be imposed. That is what this amendment is about. It is about making the concept of “manifestly unjust” mean something in this law. The amendment will address the point that was raised by the Ministry of Justice. So I really urge the parties opposite to look at the amendments that Labour is putting up.

Labour opposes this bill because we do not think it will work and we think it is inequitable. We would rather be focusing on the other end of the system. But we are now in the Committee stage of the debate, and we are prepared to put up amendments that will at least improve the bill and give real meaning, in this case, to the clause about sentences being “manifestly unjust”.

I turn to the amendment in clause 5(1) that inserts new section 86D in the Sentencing Act, to allow the court to reduce the sentence imposed by up to 25 percent in order to take into account the fact of a guilty plea. At the moment the incentive to plead guilty, particularly as we get to the third-strike offence, goes away. Why would somebody decide to plead guilty in that situation? We all know that if there are fewer guilty pleas, it will mean not only that there will be greater costs, obviously, but also that victims will have to go through more trials. We are trying to amend this bill so that we can allow guilty pleas to be taken into account. We have to think about this bill in terms of how it will work, not as a slogan, not as a set of slogans that allow people to go forth into the electorate and, like Ms Goudie, say this legislation will deter repeat offending. I invite the member opposite to read the clause and the amendment. The amendment to new section 86D aims to insert a new subsection that will allow guilty pleas to be taken into account properly.

It is very important to ensure that we make this law the best that it can possibly be. Labour believes this law is wrong. We do not support it in this Chamber, but we do want to ensure that we give meaning to some of the terms that are here, like the term “manifestly unjust”. We also want to make sure that we put incentives in place so that people will plead guilty, so that we can reduce the number of cases where victims have to go through the horror again of what happened to them.

We also have an amendment to new section 86C, also inserted by clause 5(1) of the bill. The amendment is to insert in subsection 4(a), after “serve the sentence without parole”, the words “unless the Court is satisfied that, given the circumstances of the offence and the offender, it would be manifestly unjust to make the order”. We are trying to cover off “manifestly unjust” as a meaningful statement in sentencing and in parole. It is vitally important as we go through this bill that we do not allow ourselves to be sucked into the belief that this set of slogans will provide the panacea to these problems. We need real, proper amendments to be made to this legislation in order to give it meaning, and we have not seen that at any point so far from the Government or the ACT Party. We have only seen a continuation of the clichés and the slogans, rather than an attempt to see how the legislation would work. Mr Garrett has said earlier that he wants this legislation to work properly. If he wants this legislation to be meaningful, he needs to adopt these amendments.

I move, That the question be now put.

This is an interesting debate. Judith Collins said in her initial speech on the Sentencing and Parole Reform Bill that criminals have to take responsibility for their crimes. I think that is quite true. When we talk about whether criminals are also victims and about problems in their past, we do not mean to say that criminals should not take responsibility for their crimes. But part of the process of stopping reoffending is to make them understand and internalise the horrible thing they have done to some other person, if it is a violent offence, and to society. That requires a whole process of rehabilitation. That is where there is a link between people taking responsibility for their crimes and the fact that they may be in part also victims.

Clayton Cosgrove mentioned the case of someone who might be raped at age 5 and who goes on in later life at age 25 to be a sexual predator. Alternatively, it is often the case in our prisons that there is a very high rate of illiteracy; a lot of prisoners have not, for one reason or another, learnt to read and speak very well, and tend to fall back in society, to not get proper jobs, and to resolve matters with their fists rather than by discussion. Rehabilitation in prison often means linking to some degree the crime that they have committed with their past. We need to get them to understand that, although they might feel that somehow they have some grievance and some justification for doing what they do, they do not really have that justification, and we can overcome their disadvantaged background together as part of the rehabilitation programme. David Garrett mentioned some programmes in relation to drug cases that seemed very good, too, so I am not saying that there is a complete division in this Chamber about how to go forward.

I think another comment he made was true: the prisoner must want to be rehabilitated. There has to be some movement. But if we implement “three strikes”, we are saying to prisoners that they are the enemy, we will not give them any slack, we are not really trying to understand them, and they have no future. If we block off paths in the way that this plays out, then we will not put people on the road to recovery.

In respect of the amendment mentioned by the previous speaker, Grant Robertson, criminals need an incentive to plead guilty, because that process in and of itself becomes a recognition that they have taken some responsibility for their crime and can begin the programme of rehabilitation in prison. If we incentivise the other way—for them to deny their criminality, and to plead not guilty when they are clearly guilty—all we are doing is keeping them in prison for ever, virtually, at a huge cost to society and to everyone to the extent that when they do get out of prison, they are more likely to reoffend and create other victims because they are anti-society and not rehabilitated. That is not a good solution.

I want to know why National is so keen to shut down debate on this bill, before it has even got under way. Less than half an hour into the debate on this bill, with not one single National member having taken a call on it, National members have been trying to shut it down.

💬 Hon Judith Collins: Excuse me.

Not one single National member, other than the Minister in the chair, the Minister of Corrections, has taken a call on it. They have tried to shut it down. That is outrageous. Why is National so afraid of debating this bill? It could be that the reality does not live up to the rhetoric that they have been putting forward. In fact, it is very easy for National members to screech, as they are doing on the other side of the Chamber at the moment, that Labour members are soft on crime because we do not support the bill. We do not support the bill, because it will not work. We will support measures that work. It is wrong to suggest that we are soft on crime. The track record of the last few years would suggest otherwise.

Some of the rhetoric that has been put forward to justify this bill does not stand up to scrutiny. To claim, for example, that the previous Labour Government did not do anything to keep the worst violent offenders in prison for longer is simply not true. For example, the new sentencing and parole laws that came into force in July 2004 increased the minimum non-parole period for the worst murderers from 10 to 17 years; the time that the worst offenders have to wait between applications for parole has increased to up to 3 years, instead of their having the ability to apply automatically every year; automatic release at two-thirds of the sentence for serious violent offenders has been abolished; and preventive detention is now available to keep the worst sexual and violent offenders in prison for longer. So it is simply wrong to say that we have not done anything to keep those offenders in prison for longer and make the public safer.

The point Labour members are making on this bill is that “three strikes” will not work. It will not work, and there are already other things available that could deal with many of the concerns that have been raised. National knows that, and that could well be why it is not willing to debate this bill and why it is more interested in closing down debate.

I turn to the regulatory impact statement on the bill, because I think it raises a number of legitimate concerns. This is the Government’s own regulatory impact statement, and it found, for example in public safety that “it is not possible to conclude with any certainty to what extent any of the options will improve public safety”, and “there is a possibility that removing the worst repeat violent offenders from the community for longer periods of time will result in less serious violent offending”. However, offenders who commit serious violent offences do not necessarily have previous sentences for serious violent offences. So surely that is where the debate should be at. It should be about how we make the community safer, how we crack down on serious violent offending before it takes place. What are the key causes of serious violent offending, and how can we address those? We are not hearing anything from the Government about what it is doing on that.

Public confidence in the criminal justice system could be undermined by this legislation. The regulatory impact statement argues this; it states that public confidence could be undermined if the policy on worst repeat offenders raises the potential for disproportionate outcomes, which may negatively affect public confidence in the criminal justice system. It is really important the public have confidence that the criminal justice system is netting out a punishment that is fair and proportionate. If it is not, then the public confidence in the system will be eroded, and that has to be to the detriment of everybody.

Most research has found—this is again from the regulatory impact statement—that “imprisonment has little if any specific deterrent effect.” There is a great deal of evidence indicating that offending rates decrease only marginally as a result of penalties being increased. The regulatory impact statement states that. That is not my claim. Here we have the Government putting forward the idea that we will deter repeat offending, I suggest that if offenders are already on their second strike, the knowledge that they will go away to prison for a lot longer will not necessarily act as a deterrent. One would think that the sentences that were available on the first and second strike would have acted as a deterrent. There are obviously other factors at play here that we need to deal with; this bill does nothing to address those.

Looking at the financial cost, we see that both the life without parole and the worst repeat violent offender policies represent a small but gradually increasing transfer of cost within the funding available to the justice sector, from the detention and prevention of offending to the detention of offenders who may, particularly once they are elderly, pose no risk to the public. Surely we should be focusing the resources on the detention and prevention of offending as much as we are—

💬 Sandra Goudie: Boring!

I say to Sandra Goudie that I would much rather prevent the crime in the first place, and prevent the creation of victims in the first place, than have an ambulance at the bottom of the cliff to deal with criminal offenders once they have already committed their crimes. I would rather have fewer victims in the first place, and Sandra Goudie seems to think that that is boring. I think that is an absolute disgrace and highlights National’s position. It is not interested in preventing crime in the first place. It is more interested in punishment and retribution after the fact, which does nothing to make the community safer. Sandra Goudie thinks prevention is boring. I think that is absolutely disgraceful. It says it all about National’s approach.

The CHAIRPERSON (Lindsay Tisch): Although this is a robust debate, this continual screaming across the Chamber is unacceptable. I ask members to tone it down. Interjections should be rare and reasonable. I am happy with those, but yelling across the Chamber is unacceptable.

I remind members that I am actually drawing from the regulatory impact statement on the Government’s own bill. This regulatory impact statement, I think in this particular case, has been prepared by the police. These are the concerns they are highlighting about the bill. I think many of them are very valid concerns they have been raising.

Other concerns that have been raised about the bill are around the increased powers that it gives to the police as opposed to the judiciary. It places a lot more discretion with the police regarding prosecutorial decisions—who gets prosecuted and for what crimes—rather than leaving the discretion with the judiciary, so that could potentially create some perverse outcomes. It could result in bargaining between police and the offender to lower the seriousness of the crime that is being prosecuted, and I think that that would be wrong. That could lead to a worse outcome for the victims and a less safe community, and that is something that should be taken into account. Again, from the police’s regulatory impact statement regarding homicide, this is a point put forward from the analysis of a number of leading studies of “three strikes” laws in the USA: there is evidence that these laws may have resulted in an increased rate of homicide.

💬 David Garrett: Rubbish!

I am not making that claim. That claim is in the regulatory impact statement to the Government’s bill, so that is a Government department or a Government agency putting forward that argument, not me. It argues that studies from the USA have concluded that the “three strikes” policy could have actually increased the rate of homicide. This bill could lead to unintended consequences.

Both options are likely to result in fewer guilty pleas and that is something I am very concerned about; particularly at stage three, or where life imprisonment without parole is to be imposed, more appeals against individuals’ convictions and sentences can also be expected.

💬 Hon Clayton Cosgrove: I raise a point of order, Mr Chairperson. There is a convention in the Chamber that if members are going to interject they do not walk up and down the Chamber. They do not move around—they interject from their seat.

The CHAIRPERSON (Lindsay Tisch): I thank the member for that. The member is correct. When one is walking around within the Chamber, one cannot speak at all and certainly cannot interject and make comments.

The Attorney-General has raised concerns about the consistency of this current bill with the New Zealand Bill of Rights Act. I will not go into those, but will make a few concluding comments with regards to the position of victims. Of course I sympathise with the victims. Of course my heart goes out to them. Of course I would like to see a greater focus on the rights of victims. Of course I believe that there are some people who should be locked up and kept locked away for a very long time. I am interested in what we can do to reform the criminal justice system so that we have fewer people entering the prison system in the first place, and to reduce the rate of violent offending in the first place, rather than having the ambulance at the bottom of the cliff. If any members have a constructive suggestion about how that could happen I am willing to engage in that debate wholeheartedly. I would much rather focus the emphasis of debate on how we prevent offending, and on how we reduce the number of victims created in the first place, rather than on how we punish the offenders after the fact. It would be much better. Victims deserve better than a punitive debate following becoming victims—I think they deserve better than that. They deserve for this Parliament to put all of its energy and all of its effort into preventing them from becoming victims in the first place. If we can prevent criminal offending, we should do so. Unfortunately, there is a real absence of any policies or any ideas coming forward about how we can do that.

I move, That the question be now put.

This will be a very brief call on Part 1 of the Sentencing and Parole Reform Bill, which I suspect I will have to recommence after the dinner break. I will answer a couple of charges raised by Mr Garrett about the amendments that the Labour Party has put up. Mr Garrett alleged that somehow we were not expressing goodwill.

Sitting suspended from 6 p.m. to 7.30 p.m.

Before the dinner break I was speaking about the amendments that Labour had put forward, mainly to clause 5. I was referring to some comments that Mr Garrett had made where basically, in colloquial language, he accused the Labour Party of not playing fair because we had not dropped down on bended knee, crawled over to him and his ilk, and provided him at an early stage with the amendments we were going to put forward. In mitigation for that accusation, I will make a couple of points. One is that this Parliament over the last 18 months has been littered with whole pieces of legislation—some under the name of the Minister of Justice; one or two, I think, under the name of the Minister in the chair, Ms Collins—that have been dropped on this Parliament with no notice. They were never seen by anybody in Parliament apart from the Minister in charge and Cabinet.

The second point I make is that Mr Garrett is a lawyer and I am not, yet I managed to work out some changes that I think need to be made. Mr Garrett sat on the Law and Order Committee; so did I, and I and my colleagues worked out some changes that had to be made. Mr Garrett heard the submitters submit on these issues—they were learned people—and so did the folks on my side of the table, and we managed to work it out. Part of the role of an Opposition, apart from opposing where it feels it is appropriate, is to propose solutions, ideas, and amendments. I am sure Mr Chair could quote me the Standing Orders that would provide a framework for Mr Garrett to tell him that this is called the Committee stage, and this is where political parties and members of Parliament put forward amendments. I am sure that Mr Hide, being a learned member of this Chamber, would agree that it is not a requirement that people submit themselves on bended knee to the opposing party and present all the ideas.

Mr Garrett is a member of the legal profession. He heard the same people that I did who had problems in respect of the manifestly unjust provisions on the third strike in clause 5, in respect of the suggestions about the exclusions of accidental or negligent manslaughter, and issues about allowing guilty pleas to be a factor in sentencing, as per our proposals for clause 5. Either he did not understand them and dismissed them, or if, as he claimed tonight before the dinner break, he had had notice of them, he would have somehow shown goodwill—and I will take him at his word—and he would have offered to look at them to see whether they should be incorporated in the legislation.

💬 Carmel Sepuloni: It is just being petty if they’re—

No, I disagree with my colleague. My colleague said that it is being petty; I understand why she would say that. But I say that if Mr Garrett is true to his own word, he has an opportunity now to stand up, to walk over to the Minister, and to have a word in her ear and ask why they do not taihoa on this piece of legislation for a couple of days or maybe until next week so that he can look at the Opposition’s amendments. He will do that if he is true to the goodwill gesture that he proffered out of one side of his mouth before the dinner break. But I will take a bet with any member of Parliament—I will put $100 on it—that Mr Garrett will not do that, because Mr Garrett wants to get the legislative notch on his belt. He is desperate to raise the flag on this one, because this is a cause célèbre.

If he is not prepared to go over to the Government and tell it to hang on, as he said he would look at these ideas and consider what is appropriate and common-sense, then that tells us that Mr Garrett wants this bill to go through in any form, come hell or high water. Even if he sees some unjust problems with it and some solutions that we have provided, he is not interested in them. That means that the last series of accusations from him—about us not coming over cap in hand, giving him the amendments, and bowing down before him as the “O, Great One”, the man who allegedly stands so much on the side of victims when no one else in this Chamber apparently does—are just words. He has an opportunity. He could stand up in this place tonight or his leader could—his leader is the senior man on deck tonight—and say that they will look at these amendments.

Thank you, Mr Chair, for the opportunity to reply to some of the statements made in this debate. First, I think I will refer just to a matter that the member Chris Hipkins raised in relation to a regulatory impact statement that he said the police had made. I tell him that, no, it was the Ministry of Justice. It related to the Sentencing and Parole Reform Bill as first introduced to the House. In addition to that, this bill has been significantly changed since it was first introduced. It is a far more reasonable and fair bill. It is much more tightly worded.

There have been some personal attacks on members in this Chamber, and I will not bother to deal with those. However, I will talk about rehabilitation. I think there have been some comments made about how we should be doing more rehabilitation. That is exactly right. It is why we are doubling the amount of rehabilitation available in our prisons. For any members of the House who would like to come and see some of the rehabilitation being done for prisoners, I am very happy to be able to help facilitate that through my office with the Department of Corrections, because the Department of Corrections would love to be able to show off the rehabilitation that it does. Mr Garrett has certainly taken up that offer. Some other members have—

💬 Chris Hipkins: I visit them all the time.

Mr Hipkins tells me that he visits all the time. I ask him whether he has seen some of the rehabilitation work—there is some excellent work being done.

💬 Hon Steve Chadwick: It started years ago.

Of course Mrs Chadwick says that it started years ago. Yes, it did, and it continues. That is why we are doubling rehabilitation, I say to Mrs Chadwick. We are happy to say that—

💬 Hon Steve Chadwick: Good, but it started—

I am glad she is saying that she is happy. Mr Cosgrove has dealt with some issues that he has put on a typescript amendment paper. I have had a look at those amendments, but, no, we will not be supporting them, for very good reason. It is nothing to do with him not coming cap in hand, because, frankly, we would rather that he did not come cap in hand. We are very happy to have him come and talk to us, but not cap in hand, because the sight would be too bad and I do not think my stomach would be able to cope with it.

The proposed amendment to clause 5 to amend new subsection 86D(2) would actually reduce the certainty of the penalty. That moves away from the fact that a stage three sentence is meant to be a very serious penalty in all cases because the offender is continuing to commit very serious offences that victimise people. It would reduce any deterrent force of the bill. If it is going to deter people from this sort of offending, it needs to be very certain.

The proposed amendment to clause 5 to amend new section 86A says that we should exclude accidental or negligent manslaughters. Well, actually, there is a degree of negligence required to establish liability for manslaughter, as it is now. Mr Cosgrove has pointed out that he is not a lawyer, and this is one of the issues that somebody could mistake. So I am sure he has just made a mistake there.

The amendment to clause 5 amends new section 86D by introducing a discount of 25 percent for a guilty plea at stage three. Well, this would reduce a 20-year sentence for sexual violation to one of 15 years. We are talking about a third-striker on an extremely serious offence. Despite everything that the Opposition has talked about tonight, these people generally commit hundreds of crimes along the way to get to that and have had loads and loads of opportunities to reform. Mr Cosgrove would rather they got off lightly on their third offence if they want a 25 percent plea discount.

Another of his amendments to clause 5 seeks to insert the words “resulting in a custodial sentence” after the words “(a) is a serious violent offence” to amend the definitions of “stage-1 offence”, “stage-2 offence”, and “stage-3 offence” in new section 86A, instead of just a conviction. That goes back towards the bill as introduced. To change the conviction threshold was necessary, otherwise we would probably never have anybody locked up under this from the third strike, and Mr Cosgrove knows that. We are not prepared to buy into that.

Then we have his amendment to clause 5 to amend new subsection 86C(4)(a) to authorise judges not to order a prison sentence at stage two to be served without eligibility for parole. I think that is basically the status quo now. We have campaigned very firmly on being able to remove parole for the worst repeat violent offenders. Parole is not a right, it is a privilege. It is about time that people recognise that. Clearly the Opposition does not. It is very important to understand that when someone is on parole, he or she has to be looked after by the Department of Corrections. The Department of Corrections will be the ones who have to try to look after parolees. For some of the violent recidivist offenders, frankly, it is just too unsafe for the community. I am not prepared to be the Minister who goes out and says that I cared more about trying to look after the prisoner than I cared about the victim. That is not the sort of Minister I am prepared to be.

I have not spoken on this part at all, so I am looking forward to several calls and to contributing to this debate in a constructive way.

I went and listened to two presentations given by two different people who have recently come from California to New Zealand. One was the judge from the court that has to administer the “three strikes” law, and the other was Rev. Ron Givens. One thing that I thought was quite fascinating was the definition of the legislation, as it is defined, as “three strikes”. It was a point that I had not heard before. Of course, that expression comes from America’s favourite game, but it does not mean what it means when one is playing baseball. When playing baseball, “three strikes” means that someone is out but can come back in the next round, and that person could hit the home run that wins the game. But that is not what this bill is all about. It is not about people redeeming and rehabilitating themselves, and contributing to society in a meaningful way. My real, fundamental problem with this legislation is that it is a one-size-fits-all approach that uses populist slogans that do not mean anything.

I have heard people talk about the experience in California in respect of the crime rate. In fact, there are many other justifications for changes in crime rates. It was already going down before the “three strikes” law came into effect. One of the points they made was that the increase in violence against prison guards was exponential. When people do not have any chance of ever seeing the light of day again, it becomes a more dangerous occupation. The other one, which I had not thought of, was violence to police if someone is sitting on two strikes, with that third strike pending, and he or she is about to be arrested. One example we were given was of an individual who was facing the third strike. In California, the “three strikes” system is even more repressive than this particular regime because it applies to offences that are not that serious and it applies forever. If someone had a bad youth and went off the rails, then later on in life committed that third strike, he or she could face consequences that are way beyond what anyone else would face for that particular offence in any other set of circumstances.

The other thing that I thought was fascinating, and I have not been able to track this down yet, but I will definitely have it available for my third reading contribution to this debate, is that, apparently, a chief executive officer of one of the private prisons was quoted in Business Week as saying that mandated sentencing—because that is what “three strikes” is; it takes away discretion from judges and tells judges that they can only do things a certain way—provided exciting growth opportunities in the private prison industry. I thought that was fascinating because National introduced the private prison industry to New Zealand. When we add the two together, we start to see that this makes sense from a profit-making provision. It plays on people’s fears of being victimised.

One of the examples given to us was of a 16-year-old who had stolen two cheques from his mother by forging her name, which is cheque fraud. He had stolen two cheques, so that is two counts, and he was convicted on the two counts, which were both felonies. Last year, when he was 20 years old, he went into a convenience store and stole a candy bar. He turned to the shop owner—

💬 David Garrett: What was his name?

Every time I get up to speak, I am constantly asked to give names. I do not know the name of this person; it is an example of a case that was given to us in a presentation. The individual involved made a suggestion that that member contact him, because he would love to have the debate directly with that member.

💬 David Garrett: I offered to debate him while he was here.

No, I do not think we are talking about the same person. Last year, when he was 20 years old, he went into a convenience store and stole a candy bar. He turned to the shop owner and said: “I’m going to kill you if you tell anyone I did this.” Of course he was arrested. His sentence was 25 years to life. He had stolen those two cheques from his mother, then he stole a candy bar.

He also made this point, which I thought was very fascinating in light of the issues we deal with with constituents who have lost money in major scams and major white-collar crime. What is missing from the list of crimes? Bribery, fraud, pandering—all of the white-collar crimes are left out of this. This will fill our jails with young Māori men. That is the bottom line.

In America, when an analysis was done, it was discovered that 36 percent of those in prison had an underlying mental illness—36 percent. That did not include those who had drug and alcohol issues that required treatment. When we think about what that might mean, we start to think about the warehousing in our criminal justice system of prisoners with mental illness who require treatment, instead of a more caring and understanding society.

Every time we have this debate, we are accused of being either soft or hard on crime. I do not think that that is the debate we should have. There are some people who are so dangerous they should be locked up for ever. I have no problems with that, and I do not think anyone has any problems with that. All of the speakers who have come to this country to tell us not to go down this track have said that, as well. There are some people who are criminal, evil, and unable to be rehabilitated. There is no hope for them. They should be catered for in a humane way and they should never be allowed to rejoin society. We all accept that, but this says that on three separate occasions at any time in one’s life, no matter the circumstances, this is how the law will be applied in one’s case. It does not matter that a judge might have some discretion that would normally apply. We will take the judge’s discretion away and we will mandate a sentence, regardless of the circumstances. That is the fundamental problem with this particular legislation. It does not deal with the real problem.

The real problem can be dealt with by addressing those who commit serious crimes who cannot be rehabilitated. The effort has to go in at the front end as well, so that we can do the early intervention work to make the difference. We on this side of the House have offered to work collaboratively with the Government on early intervention policy, and we have not had a positive response. I would have thought that any Government would want to work with an Opposition in order to achieve those things to make the difference in the long term. We do not have to worry about beating on the law and order drum if we are serious about doing something that will make a difference in the long term. Unless we are prepared to look at early intervention, early childhood education, Child, Youth and Family, and all of those different areas—

💬 Carmel Sepuloni: ACC sexual abuse counselling.

We need to look at all of those things, and at what some of those underlying causes are. This does not excuse the behaviour, but if we do not understand what drives the behaviour, how on earth will we do anything as a Parliament to stand up to the things that will make a difference in terms of reducing the numbers of victims of crimes? I think that would be preferable.

I move, That the question be now put.