Crimes (Robbery) Amendment Bill

Thank you, Madam Chair. I move again, That the Crimes (Robbery) Amendment Bill be now read a first time. I nominate the Justice Committee to consider the bill.

I’m pleased to lead off the debate tonight on this member’s bill, selected from the ballot a while back now. This is the second time I’ve had a member’s bill drawn in nearly four years. I know it’s not as many as some other members, but it always makes me smile to think of my ex-colleague, my dear friend Mr Tim Macindoe, who failed to get a single member’s bill drawn in 11 years.

Members’ bills are a chance to get something on the floor that wouldn’t otherwise happen because it doesn’t fit in with the Government’s agenda. So can I start tonight by acknowledging my ex-colleague and good friend Matt King. This was, in fact, his bill. As an ex-policeman of many years, he saw firsthand the problems caused by anomalies in the Crimes Act, and, indeed, the anomalies that this bill will attempt to fix. Matt King was approached by members of the police, who asked him to bring this bill, and here we are.

As you can tell by the lack of paper in the Crimes (Robbery) Amendment Bill, it’s not a large or overly complex bill. The bill’s a very short and relatively minor amendment to the Crimes Act. But while small, it will make a big difference. In fact, the bill is just three words. Quite simply, the bill inserts the words “or unlawful taking” into section 234 of the Crimes Act. Currently, section 234 of the Crimes Act defines robbery as “theft accompanied by violence or threats of violence, to any person or property, used to extort the property stolen or to prevent or overcome resistance to its being stolen”. The definition of theft in relation to robbery is important in the context of this bill.

If we look at the definition of theft in section 219 of the Crimes Act, we can see that there are a few parts that must be proven to make the case for theft: was there a taking that occurred without consent, was the item taken dishonestly, was the item taken without claim of right, etc., etc., but importantly, was the item taken with the intent to permanently deprive the rightful owner of said item?

Section 219(2) states that theft or stealing is “An intent to deprive any owner permanently of property [and] includes an intent to deal with property in such a manner that—(a) the property cannot be returned to any owner in the same condition; or (b) any owner is likely to be permanently deprived of the property or of any interest in the property.” It’s quite easy, therefore, to think about a robbery in terms of a situation where a perpetrator grabs a victim, roughs them up, takes their wallet with $20 in it, and runs off. They have permanently deprived the victim of that $20 and the wallet, and, of course, there is the accompanying violence aspect, thus robbery is proven and there is a 10-year maximum sentence, and of course that is also a strike offence.

The problem arises when the item taken is a vehicle, in the form of a carjacking, for instance. So, for example, the perpetrator opens the door of the car, grabs the victim, threatens them, hauls them out of the car, shoves them to the ground, and then takes off with their $80,000 Kona—for argument’s sake. If the car is dumped by the perpetrator, as can often happen, and therefore can be returned at some point to the victim, then section 219(2), the intent to permanently deprive, cannot be satisfied, and the item can be returned to the owner in the same or very similar condition, so the owner is not likely to be permanently deprived of the vehicle or the interest in that vehicle.

So here we have a situation in a robbery where a victim can be roughed up, with their wallet taken—$20—that satisfies the definition of robbery, but if a perpetrator grabs someone, threatens them, hauls them out of the car, throws them on the ground, takes off with the car and dumps it, robbery cannot be proven. Of course, if the car is burnt out or written off, then robbery can be proven, but, if not, then robbery is off the table. This bill seeks to remedy the anomaly in the law.

This bill proposes to insert three little words that read “or unlawful taking” into the definition of robbery in section 234 of the Crimes Act, so that it would read, “Robbery is theft or unlawful taking accompanied by violence or threats of violence, to any person or property, used to extort”, blah, blah, blah. The words “or unlawful taking” brings—

💬 Hon Member: Blah, blah, blah!

—Ha, ha! It’s a legal term!—the taking of the vehicle into the definition of robbery, and so there is no longer any test around intent to permanently deprive. So whether the perpetrator burns the car out, writes it off, or simply drives it and dumps it 200 kilometres away, robbery can still be proven.

The reason for this bill is multiple approaches to us from the police, asking for this small change to be made, because they could see the anomaly in the law and they could see the types of things that prosecutors currently have to do to try their best to work around the law. What typically happens in a carjacking case when it comes to the prosecution is that the prosecutors put up multiple charges because the crime doesn’t fit that one tidy crime of robbery. Some of the charges that are typically laid instead of robbery include demand with menace, if the perpetrator says, “Hey, get out of the car.”; threat to kill or grievous bodily harm, if they say, “Get out of the car or I’ll kill you.”; threatening behaviour, which is a summary offence; then there’ll be charges around the way in which the victim was touched: common assault if they just get their arm pulled, or aggravated assault, which is a three-year charge; and then there will be the charges around the taking of the car—unlawful taking.

The way these charges are put together is messy. There are multiple charges, multiple charging documents, which cost the taxpayer more. They are more complex, and often take a lot longer to go through the system. There’s normally more court time or more court appearances because of the multiple charges and the fact that the lawyers haggle: “Hey, we’ll drop this if you accept this and we might drop that.”, so it can take a much longer court time. But the prosecutors have to do all of this because of the anomaly in the law, where this is actually a robbery in the same way where a perpetrator grabs a victim, takes their wallet, roughs them up, and takes off, but the multiple charges that prosecutors have to lay in a carjacking scenario to get it anywhere near robbery gives us a situation that is far less than ideal. It’s, in fact, complex, it’s messy, it’s very lengthy, and it’s costly. And even with all of the above charges possible, it’s never possible to reach the same threshold of robbery, which is that 10 years is the maximum penalty.

The other thing worthy of note is that while we still have the three strikes regime, robbery is a strike offence, and those other mixes, even when cobbled together, aren’t a strike offence. So we can have a strike offence for someone stealing a wallet for $20 and roughing up a victim, but not for roughing them up and taking off in their $80,000 car and dumping it. The crime of robbery puts theft and violence or threats of violence in one charge—it’s clean and it’s tidy. We have the charge of robbery for the very reason of not having to charge the wallet robber with multiple charges, as we currently have to do with a carjacking. This bill would rightly allow prosecutors to use the charge of robbery for a carjacking when the car is dumped.

National will always put victims at the heart of the justice system, and this bill fixes that anomaly in the law that requires a car to be written off or burnt out in order to fulfil that requirement of permanent deprivation.

So as I’ve said, a very small bill, a very uncomplicated bill, a three-word bill to bring what is robbery of a car into the definition of robbery without the requirement to permanently deprive. I’m not sure of support from across the House for this bill, but I am forever hopeful, of course, that we can get it to select committee so we can scrutinise, improve the bill in any way we see fit, and, of course, to iron out any potential anomalies. So I commend the bill to the House.

The question is that the motion be agreed to.

Madam Speaker, thank you very much for the opportunity to speak on the Crimes (Robbery) Amendment Bill. Should we not pay tribute to Matt King? I think it’s sorry that he can’t be here to see this. Matt King—I think this bill is indicative of the fact that Matt King had a good idea but wasn’t able to follow through, and I think that lands where this bill is at.

So this bill broadens the definition of robbery by adding just three words—it’s a simple change—to the Crimes Act, and those three words are “or unlawful taking”. The intent of this change is to clarify that robbery need not have intent to permanently deprive someone of the car, such as particularly with carjacking, and thereby opening up the charge of robbery to be able to be used in carjacking cases. While on this side of the House, the Government thinks that the intent is good, the change is a very poor one. And the reason for that is it will not clearly achieve the bill’s objectives.

That’s for three reasons—there’s three reasons. First of all, it’s too ambiguous. Second of all, it misidentifies the issue. And, thirdly, it’s far too broad. And from formerly working in police prosecutions, I can testify that there were many front-line officers who came forward with bright ideas about how to change the law to make it easier to prosecute someone, but when you drill down and find out what its implications are with wider points of law, it doesn’t always work so well.

It was interesting that the member in charge of this member’s bill identified the very issue of multiple charges being brought, because—she’s quite right—in any given criminal incident, you’ll have multiple charges. They might be grievous bodily harm, threat to kill—there’ll be other issues relating to robbery on top of the carjacking. And what you often see is plea bargaining happening and those charges being whittled down in order for a prosecution to be brought. And so the question is: which is the strongest crime to prosecute and what best serves the general interests in serving that need to bring justice? So I think that the intent is good.

But I’d like to just unpack those three reasons why the Government won’t be supporting this piece of legislation. So, first of all, on ambiguous, because unlawful taking is not specifically defined in law. That’s a pretty significant issue. If you’re introducing three new words into legislation, the best thing you need to do, really, is to define it, and this bill fails to do so. Secondly, in terms of misidentifying the issue, in the current law, it blurs the current distinction between theft and conversion, which is actually quite problematic in terms of prosecution basis. And the third point—that is, being too broad—it redefines robbery for all cases, not just those related to vehicles or carjacking in this instance. So given the problems with this bill as it’s drafted and the significant, disproportionate impact that it would have on the House’s time, that is the reason why the Government will not be supporting this bill to select committee.

Although we agree in principle with the concept, it does not achieve the intent as outlined in the member’s general policy statement, which is in the bill available on the Table. The member in charge has argued quite articulately that it is difficult to make out the offence of robbery in the case of a motor vehicle, because the definition of robbery requires an intent to permanently deprive the victim of their possessions. But to address this issue, the bill proposes inserting three words to the Crimes Act, in the definition of robbery, which are those words “or unlawful taking”, and this is really a poor way of achieving the intent of the bill.

The wording of the amendment is too ambiguous and it won’t provide that greater clarity in law which the member is striving to achieve in order to facilitate that front-line ability to prosecute. It will not achieve that outcome. The wording of the amendment of the bill, “or unlawful taking”, provides no definition and no reference, furthermore, as to where we might find this definition. So it is leaving it to the courts or it is leaving it to be further divined, and that is not good legislation and not good use of this House’s time.

Unlawful taking is a heading in the Crimes Act, in the 1961 Crimes Act, but it is not specifically defined in that Act, referring generally to a whole category of offences. It is fundamentally unclear, therefore, that this amendment proposed in this bill would achieve the intended outcome. As the definition of “or unlawful taking” is unclear, the new offences that may be covered by the amendments such as carjacking, as illustrated by the member, are also very much unclear.

The bill misidentifies the issue in current law and blurs the distinction between theft and conversion. And I’d like to go on to explain that currently there is a distinction in law between theft—the permanent taking of any property, including a vehicle—and conversion, the temporary taking of a vehicle. The offence of conversion exists specifically because it can be difficult to prove an intent to permanently deprive someone of their vehicle—the issue at the heart of this member’s bill. Misidentifying the issue in the bill tries to broaden the definition of robbery so it includes temporary theft of a vehicle rather than simply adding in an aggravating offence for carjacking, which would probably be a better way of going about it. This blurs the obvious line between theft and conversion, is untidy, unclear, and potentially applies beyond motor vehicles, which creates a whole new class of problems that the courts would probably have to deal with. The approach taken by the amendment is simply just far too broad. It redefines robbery in all cases, not just as carjacking, as the intent of this bill wants to do.

Although the general policy statement specifies that the target of the law change is carjacking of motor vehicles, it is the legislative vehicle for the change that does not specify motor vehicles at all. Instead, it simply redefines what robbery is as a general concept and entails clarifying what it calls “or unlawful taking”. So given the charge of conversion already exists, this approach needlessly is just far too broad.

Therefore, although we agree in principle with the concept of the bill, as I’ve already said, we do not support this bill. It would be far more appropriate to consider this as part of a full policy process, considering it alongside other relevant parts of the Crimes Act, as this would be a far more effective way of utilising the legislative time of the House and would also be far more likely to actually achieve the intent of the bill and what the member is trying to do.

So what this bill amends—it’s quite simple: it is not clear and I’ve spelt this out in three main reasons. The apparent hope is that the less specific wording of “or unlawful taking” will somehow capture crimes where there is no intent to permanently deprive the victim of their vehicle, and that’s problematic for a number of reasons.

So what I would like to do is conclude by commending the member on identifying an area where there are some issues, but in terms of actually doing this in a way that is going to achieve the intent of the bill, it has failed to do so. I think there’s far more useful work this House could be doing in terms of a wider approach to law and order, in terms of how we can be working harder and smarter to keep our communities safer, how we can break the cycle of reoffending by trying to work within our communities and do good policing and activities, and how we can build an effective, inclusive, and humane justice system to better support victims and whānau, and doing this through a range of ways, including issues such as family violence, which is prevalent right throughout our communities and drives reoffending and revictimisation.

Thirty years of locking up more people has not worked and we will not continue on this way. I’m proud to be part of a Government that has made a commitment to reducing our prison population and I will continue to work hard to see that come to fruition, because I believe that is the best way forward for New Zealanders. New Zealanders know that we cannot arrest our way, and not imprison people, out of the current situation that we find ourselves, and that we need to work collectively and not just continue to arrest people as a way of responding to current law and order issues. That is why we’ll continue to do things differently, we will continue to use evidence-based approaches in all areas of our law and order system, in order to reduce reoffending, reduce victimisation, tackle the root causes of problems instead of just locking people away, and enhance community safety and the wellbeing of our communities. Hopefully, I have given all of the reasons why this Government will not be supporting this bill further. Thank you.

Thank you, Madam Speaker. It is not a pleasure to rise and speak to this bill, the Crimes (Robbery) Amendment Bill, tonight in the House. It is another example of superfluous, off-point, archaic policy by the National Party Opposition, especially on criminal justice. We know that the Prime Minister’s chief scientist, the very well respected Sir Peter Gluckman, after proper research last term, declared that imprisonment has failed. To push a failed policy that does not work to keep communities safe, that does not restore victims, that does not bring down crime rates, at great cost, both financial and social, has now gone past the point of being just bad policy-making, just bad politicking; it is callous.

For our nation to have a major political party sit there and say that the dream of our members—because that’s what members’ bills are; they are the one thing you can change—in the middle of a housing crisis, a climate crisis, a crisis in family and domestic violence, a pandemic, a crisis in child poverty, is to send people to prison for a little bit longer for taking a car, for property offences. It does not bring down crime. It does not keep anyone safe. Stop lying to this House. Stop lying to victims and communities. I know what happens in courtrooms, because I’ve practised—

💬 Maureen Pugh: Point of order, Madam Chair. I don’t believe it’s in line with the Standing Orders for someone to refer to members lying in this House.

ASSISTANT SPEAKER (Hon Jacqui Dean): Thank you. The member will stand, withdraw, and apologise.

I withdraw and apologise, Madam Speaker. So one of the unexpected consequences of this will be that if a 17-year-old takes a car and dumps it down the road with his friend, that will be upped to the crime of aggravated robbery, because there are two people involved. The tariff case that says how we sentence an aggravated robbery says that we have to send them to prison—have to—for three years. A failed policy that’s been costing our nation billions of dollars that doesn’t and will not bring down the rate of offending—now, we know that; we know that. And yet—

💬 Hon Member: Judges have discretion.

No, not on tariff cases, sorry; that’s not how precedent works. Having practised criminal law, I can tell you that. The tariff case says—

ASSISTANT SPEAKER (Hon Jacqui Dean): Order! The member will keep the Speaker out of the debate.

Thank you, Madam Speaker. So we have a political party whose members’ dreams, in the midst of all that our nation is facing by way of complex challenges, all that we can fix, not child poverty—no, that’s not a priority for the National Party; not the housing crisis, not the pandemic, no. We just want to send people to prison for a little bit longer, knowing that it won’t actually bring down crime rates!

So the Green Party won’t support a policy like that. What we will support is investment in our communities, in whānau, in housing, in sustainable jobs, in public transport, and education, and inclusive education. We will invest in what will keep our communities safe, what will keep crime rates down, what will give us a thriving future that isn’t just politicking, that isn’t fearmongering. We will invest in what we know works, in evidence-based policy. So we do not commend this bill to the House.

Tēnā koe, Madam Speaker, and thank you for the opportunity to take a short call in relation to this bill. I don’t support the progression of this bill through the House, as I don’t believe that it’s the right way of addressing the issues identified. But I do believe that there have been some valid concerns identified, and I do believe that they deserve a response.

So I’d like to start with the problem identification itself. The member began by outlining this for us in terms of the fact that a carjacking is often hard to prove the offence of burglary because of the definition of theft within the definition of burglary, which includes the intent to permanently deprive a person of their possessions. The proposed change that the member is bringing today is to include unlawful taking within that definition. Now, the reason I think that this is problematic is that the criminal law ranks offences both on scale of the acts that have been committed and, secondly, on the intent or mens rea. It matches a particular actus reus and mens rea to define clearly and predictably the offences we criminalise. That categorisation also allows an appropriate scale of maximum penalties to exist alongside offences.

So this syncs quite well with what most people generally understand to be justice. It’s why we feel differently about someone spotting a bike in a school playground, riding it for a bit, and then leaving it there, versus how we feel about someone spotting a bike in a school playground, picking it up, riding around, taking it home, putting it in their garage, and keeping it there. What this bill proposes is to conflate two distinctly different mens rea components—

💬 Erica Stanford: It’s about robbery with violence.

I will address that valid concern that you’ve raised about violence shortly, through the Chair. The intention to permanently deprive with the very different and much broader intent of unlawful taking—there is a conflation there. Those are two distinctly separate mens rea offences for a reason, and blurring the lines between the two offences results in a lack of clarity for New Zealanders, and may result in unintentional inclusion of other acts into the offence of burglary as well.

Now, I want to stop there and just acknowledge the member who’s brought the bill, her intervention. She was saying there’s violence as well; that’s absolutely true. There will be types of conversion that are so serious they should receive additional penalties—for example, where serious threats or assault and violence are present. I’d suggest there are two ways of addressing that; one, which the member and the chair of the Justice Committee have both addressed, is other penalties, so I suspect that one of the problems the member is trying to address is the scale of the penalty, but there may already be a solution to that. As the member herself has referenced, there are other sections within the Crimes Act that police can also charge under, including section 307A, threats of harm to people or property; section 306, threatening to kill or do grievous bodily harm; or section 193, assault with intent to injure. Then, of course, it’s up to the judge to decide the actual appropriate weight of the penalty.

There is another option as well, which I don’t think we have traversed yet, and it may be the more suitable one, and that’s to—oh, actually, the chair of the Justice Committee did refer to this as well; it’s to create a distinctly separate aggravated offence to cover this particular mens rea and actus reus. This is international best practice, and it’s actually already been done in Australia, where they inserted section 154C into the Crimes Act. The offence there is titled “Taking motor vehicle or vessel with assault or with occupant on board”. It carries a maximum penalty of 10 years in prison. It would make much more sense to consider the valid issue that the member has raised as part of a broader policy process, considering it alongside other relevant parts of our Crimes Act, as this would be a more effective use of our legislative time. Thank you.

I stand in support of this Crimes (Robbery) Amendment Bill, and I’m going tell the Speaker why. That’s because it reminded me straight away of a time in 2013 when I made the New Zealand women’s rifle team and we went to South Africa. We were told at that time to make sure that we locked our doors, to make sure that we did not at any stage wind our windows down, and to always be prepared to be hijacked, especially as we had firearms on board with us, ammunition, and we were a team full of women. It was quite enlightening to see the way that they behaved over there. And when I came here, back home, I was really quite grateful for the way that we behave here in New Zealand.

So when this bill first came out in April, when I first saw it, I thought, “Really? We can’t have that sort of problem here.” So I went about researching and investigating, because, really, if we’re going to introduce a bill like this, it’s got to be talking about and thinking about the victims of violent carjacking crime. What I found is this. This year, on Tuesday, 30 March, after a morning of crime, two suspects were arrested for carjacking a person at McDonald’s in Mount Roskill. On 4 January this year, a woman had her car carjacked at Foxton Beach. The car was written off by the offender. It was not insured, and through no fault of her own, she’s lost her mobility—her asset. On 6 May 2020, a carjacking occurred at the Whangārei service station with a five-week-old baby inside the vehicle at the time that it was taken. On 24 May 2017, a man was dragged from his vehicle by a suspect already on the run from police. Not only was he carjacked but when the offender reversed the vehicle, he also ran over the owner of that car.

But the following event that occurred on 18 November 2019 left me absolutely shaking my head, and excuse me, Madam Speaker, while I read this, because there’s a series of events here I don’t want to mislead or get wrong. A man named Dylan Brett attempted several carjackings on that day, 18 November 2019. He firstly jumped in front of a vehicle, forcing a driver to stop. Then he opened his driver’s door and told him to get out. The driver slammed the door and drove away. Not deterred, Dylan Brett then attempted to pull a driver from a second vehicle, but the driver resisted and the offender ran away. But the third attempt was successful. He carjacked a woman in her Nissan car in Christchurch. But, possibly like something straight out of The Goon Show, the offender drove off, leaving his co-offender running behind him. They later abandoned that car and then assaulted another man, carjacking his Toyota. They crashed the Toyota before accosting a fifth victim and carjacking her car.

But what I want to do is go back to the third victim, the first successful carjacking that day by Dylan Brett, the female victim who was torn from her car while her seatbelt was still on and was left bruised, confused, without a phone, without her keys or her car. She started to walk to the police station before a passer-by stopped and gave her a lift. Unlike some of the others, her car was found OK, and her wallet, her phone, and her keys were still there.

So moving back to this bill, it seems to me incomprehensible that this scenario of the victim having her car returned after a carjacking is actually what makes a successful prosecution difficult. Apparently, it’s hard to make out the intent of theft because of the need to prove that the intent was to permanently deprive a person of their asset. There is total disregard for the safety of people, of community, of newborn babies, or of even themselves. And if we’re able to amend the Crimes Act, then I think that we should. We would then be paying respect to the victims, all of those who experience violent carjacking crime.

If there are issues with the wording of this bill, then I suggest that it goes to select committee so that it can be sorted. The Labour Party, on the select committee, it’s full of lawyers. I would have thought that they would be competent enough to be able to address those issues and actually reword the bill to make it worthwhile for those victims. Or perhaps the National Party—they may make an announcement about an announcement that they’re going to do the same thing later on. Meanwhile, we’ll just commend this bill to the House.

I commend the previous speaker, Nicole McKee, for taking time to go through what was quite a litany of serious offences and evokes nothing but sympathy from everyone in this House for those circumstances. And, oh, that it would be so easy that we could stand in this House and pass a piece of legislation that would change any of that. The reality of it is it won’t. That offender has been caught, he will spend considerable time in prison—as he should do—for the protection of New Zealand society.

I used to train detectives at the Police College for some years. Quite a difficult part of training detectives was that the law was actually so complicated. If we wanted to trip them up, as instructors, we’d just give them a scenario and ask them to go through and do what we called a “criminal liability”, where they had to go through and try and select what the offence was and what the adequate charge would be. And, boy, it wasn’t easy, because when you went through the Crimes Act, most of the Crimes Act was full of add-ons. Generally, the Arms Act was actually worse, where every time there was an outrageous offence, someone would bring in—and I’m now learning that it would be in this House—an amendment like this, which would be very like another amendment, but you would end up with two offences, and it would just present nothing but confusion for these poor budding young detectives.

So when I came to this House, I was determined—and I know the author of this bill, Matt King; he and I had very similar careers and we got on well and we discussed this. There was an element of a solution looking for a problem. I did challenge him to say, “Do you know of anyone that avoided one minute of jail time? Do you know of one minute of avoiding of community service, or whatever, as a result of this law?” And I know the member is not here to defend himself, but he couldn’t—but he might do; it might do.

So what I will say is that there is something of an understanding needs to be required about how we arrive at this situation. Now, unlawful taking was actually something that was introduced; it was a lesser offence. It was actually really designed to deal with larrikin youths who did go out on a Saturday or Friday night—I know that when I was a young police officer up in Newlands, Johnsonville, my current electorate, it was nothing to see 20-odd cars taken up there in a night, joy riders—it was nothing like as bad as it is now; cars are just a little bit harder to steal than they were then. So it was really designed to be a lesser offence than theft. So it is quite interesting that we are trying to redefine an offence now that was actually meant to be a lesser offence.

Also, for some members, it would be very good to understand what “conversion” means, too. I see several speakers tonight have mentioned the word “conversion”. Conversion was always meant to apply to a situation where someone, perhaps, took a car for a test drive. It was given to them when they got in the car. There was no offence committed when they got into it, and, at some stage, when they intended to keep that car, that was when they converted the car to their own use. And that was a rental car—again, if you’d rented a car for a week, decided to keep it for two weeks, decided not to give it back, the time that you decided you weren’t giving it back, that was where you committed the offence of conversion. So this is an area, as I say, whenever I used to try to make it difficult for the detectives, then you would throw a question in around these circumstances.

So, going back to my original provision and my discussion with the original author of this bill—and well done, Ms Stanford, for taking this up on behalf of your ex-colleague—I go back to the previous speaker, Nicole McKee. It was a well-researched speech, but there will not be one minute of jail time that anyone will avoid from this bill not having been in place, and that is the test we really should apply.

I’m a great believer in the less definition around crimes, the better. In fact, something that my ACT colleagues have often spoken about is “do no harm”. And the more broad a defence is and a well-trained, well-directed judiciary who can actually take the facts of the case and it not to be quite so important around the definitions, and those who are going to be deciding on the charge—or, certainly, those who are deciding on the penalty—look at the facts of the case, as outlined by our colleague Nicole McKee, and look at those circumstances and apply the sentence based on the circumstances before them and not allow definitions. So I will not be supporting this bill to the House.

I rise to take a brief call on this matter. I believe I am one of the lawyers for whom the member Nicole McKee spoke earlier as being able to fix up this bill were it to go before the Justice Committee. So I actually want to go lawyer and take this through. Because I take the points of the previous speaker: the problem with this bill is it’s in search of a problem that doesn’t exist. Now, we all accept that carjacking is a pretty revolting crime. It is scary. It is often accompanied by violence. It often does lead to the damage to property. It is absolutely something on which we should be having a very hard line. But there’s hard lines already. If there’s one thing that I don’t think this country needs, it’s this House spending its time repeating the wheel, having a knee-jerk little bit of legislation that perhaps makes us feel good. It’s a sugar hit, and sugar hits are not good for any of us.

So what I want to look at quickly is just to recap on the definition here. We have a problem. We have a definition of a thing called robbery, which has 10 years; that’s theft with violence or threats of violence. Then we have this other thing called vehicle conversion, section 226 in the Crimes Act, which has the same penalty as theft, which is seven years. So how are we going to make up those three years, is, I think, the thought here. Because I think conversion in section 226 is primarily considered to be joyriding, a crime that involves taking a parked car on the street and being an idiot. Now, that’s a very different thing from a carjacking. It does not, obviously, involve the same degree of harm.

But when one is looking as a prosecutor, as I used to be, at someone who has suffered a carjacking, and one is looking at the defendant and wondering what to charge, there are a plethora of options within the Crimes Act already. There is absolutely no need for us to do anything else. So, let me take you through it, if you don’t mind. The first point is that we have the option of co-charging other offences. So you can charge for the conversion, which is the taking without intent to permanently deprive—because this is, for example, someone who is going to junk the car at the end of the ride and run—we can then charge for any violence. So violence charges start with a penalty of one year for common assault and it rises upward from there. So we’ve now got a crime that’s worth seven years and we’ve got a crime that’s worth one year.

Then on top of that, if you have only threats of violence, for example, under the Crimes Act actually a threat of violence is also an assault. So you can still charge an assault even if there is only a threat of violence. Then if you’ve got a worse assault, you can have, for example, the charge of injuring with intent. So when Ms McKee was talking about the poor woman who was hauled from her car and damaged by the seatbelt, it seems to me that is an obvious case of injuring with intent, which carries a sentence of I think it’s around five years, from memory. If then there has been an occasion when during that carjacking the driver or the baby, in the example that we were given, is confined in that car deliberately, however brief that might be, that is the offence of kidnapping. Even a brief deprivation of liberty is kidnapping. Police are adept at charging it. Kidnapping carries the penalty of 14 years.

So, in conclusion, when you are then in a situation where you have looked at your charges, if our police officer, our prosecutor, has forgotten the possibility of co-charging for violence or kidnapping or threats of violence, that police officer can still, at the sentencing stage, look to the Sentencing Act in section 9 and they can look at the aggravating factors. If an offence involves actual or threatened violence or the actual or threatened use of a weapon, that is an aggravating feature. We can look at the extent of the harm, the loss, or the damage, and we can also look at any known vulnerability of the victim.

In conclusion, this is a sugar hit. This is a short-term, unnecessary piece of legislation, and I do not commend it to this House.

Thank you, Madam Speaker. What disappointment we hear from the other side of the House tonight from this soft-on-crime Government, which isn’t prepared to make the tough decisions and actually take action against serious issues. If any of those members were actually good constituency MPs, they would be listening to their constituents and hearing what the issues are that are being faced, and they would know that this is the type of piece of legislation which the public expect Parliament to be addressing. They expect Parliament to be addressing issues such as carjacking and the violence that people are seeing on our streets in New Zealand.

But this Government is soft on crime, supported by a Green Party that hasn’t seen a crime they don’t want to decommission and take out of the Crimes Act yet. They want to get rid of jails and everything else. This is a soft-on-crime Government.

This bill actually addresses a very serious issue where we are having violent carjacking taking place in our community. The law does need changing to ensure that there are appropriate penalties and a message sent that that is unacceptable in New Zealand.

So the National Party will always stand on the side of victims of crime. I commend this bill to the house.

Thank you, Madam Speaker. No softness on this side of the House. We’re here to bring out some of the hardliners, and so, all the way from Wellington’s south-east, here we are today.

Labour is not supporting this bill tonight, as many of my colleagues have already said. So that’s fairly clear. The reasons are fairly clear, too. I do want to commend the member in charge, Erica Stanford, who’s just left the House—

ASSISTANT SPEAKER (Hon Jacqui Dean): Order! A member may not refer to the absence of another member.

Sure. Thank you, Madam Speaker. I have had some time—many years—working in and for the New Zealand Police, serving New Zealanders, and it wouldn’t be unfair to say that that was probably one of my most interesting and favourite roles in terms of dealing with communities on the front line, on a whole range of different issues. The best part of the role, which is how the New Zealand Police sum it up now, is that “prevention first” mantra—so doing the stuff now that that side of the House are quite opposed to, in many ways.

I’m always stunned at how you implement initiatives that say this will prevent crimes even happening, yet when they’re put up, they’re deemed to be soft, and all the accusations come out. That’s saddening because, if you talk to those on the front line, those in police national headquarters who have done their time, they’ll often say, actually, that these are some of the things that should have and could have happened many, many years ago, and that’s my memories of working for New Zealand Police. There’s nothing soft with them; they take things seriously. They are some of the best men and women that New Zealand has put together and put on our front line, but there’s also those behind the scenes that do the mahi and do a whole lot of the work that needs to be done to free up the front line, so to speak, which often these get compared to when we start talking about statistics.

So I’ve had a brief look at this, and robbery involving motor vehicles is certainly at an alarming rate, and, look, that’s upsetting. I know, having had a vehicle stolen myself—or someone’s decided to use it for some other purpose, other than take another car, but they chose mine—that it was stressful at the time, and, luckily it was found in the process. Apart from some damaged locks and the ignition, I’m probably one of the lucky ones who got them back, and that was done by, actually, someone reporting the vehicle to the police and getting a phone call. I thought, actually, the whole thing was quite efficient, but a crime did happen. But I don’t think that this bill is going to properly address the problem.

So I agree with the concept behind the bill. I certainly think, however, that the changes envisaged to the Crimes Act will not achieve the stated objectives.

I looked at the general policy statement—the GPS—where the member argues that it is difficult to make out the offence of robbery in the case of a motor vehicle because the current definition requires an intent to permanently deprive the victim of their vehicle. And to rectify this, the member has proposed clarifying the current definition of robbery, proposing that aside from theft, the words “or unlawful taking” be added. But the problem is that the bill provides no definition of what unlawful taking is, thereby not offering any clarification at all. There’s no reference to where the definition of “unlawful taking” can be found, and that is really just the start of—really sums up for me—why Labour is not supporting this bill. In my look through it, I don’t think it stacks up and to be worthy.

But I have commended the member. I do congratulate her for being the winner for getting it out of the box. But tonight’s not the night, and I do not commend the bill. Kia ora.

I rise unable to support this bill, and I did look at the bill with an open mind. As a lawyer, I work in employment law and I don’t work in criminal law, but I did what I would consider due diligence. I thought about the purpose of Matt King’s bill, and, again, I congratulate Erica Stanford on winning the ballot. It’s a pity it was for this bill, because I’m pretty sure that she has things that are important to her that would have been good things to come out of this ballot. Unfortunately, when I looked at the bill and I looked at its intent, its intent is to deal, it looks like, with carjacking. Its grievance, its mischief, is that a person who converts a car aggressively—violently—is not actually treated the same as a person who steals a car with an intent to deprive the owner of it permanently and does so violently. That does seem to be the common-sense thrust of what Matt King was trying to achieve.

The reality is, when you read the statute, the definition of “theft” is one which by its very purpose is to encapsulate the intent to deprive permanently. Conversion is something that has been actually defined so that it doesn’t require that, and they both hold exactly the same penalty. So I ask people at home, when they look at this, to actually just look it up. Basically, the amount is a maximum penalty of seven years. That, as my colleagues have said, does change depending on what other offences have happened at the same time. So if there is the taking of something, as is proposed by this bill—by the way, absolutely no connection with cars in this bill, so it could be the taking of anything—and it’s taken in a non-intentional way, but violently, the actual violence is what we’re really most worried about. So if it’s something trivial that is taken, but it’s taken in a violent way, then the police are very likely going to focus on the violence, as they should. If a car is taken in a carjacking, the police are likely to recognise the significance of that—and I certainly do—and they will be adding the conversion charge to other charges, including violence. So these things all add up, and that’s a really sensible approach to the law.

The Crimes Act was actually created in 1961, and I take the point that my friend Greg O’Connor made that, actually, we have had a lot of little changes in law, and they often happen through members’ bills and agitation and people using dog-whistling kinds of tactics, like talking about “soft on crime”. That’s how they happen—they’re appealing to people. But, actually, what they do is they undermine the structure of an Act, and while there will be issues in something like the Crimes Act as things change, what we really need is a thoughtful and structural approach to such things, so that when we review the Crimes Act, we catch everything.

When I went through, I could see other sections in the Crimes Act which refer to and depend upon the idea of theft. So, for example, there’s a whole connection there to burglary. You go down to burglary and it’s a 10-year offence, because that’s actually going into a premises, deciding that you’re going to do something that would be an imprisonable offence. That could be conversion, it could be theft, but those things are all defined, and they’re actually created in the statute with a lot of thought. So what you don’t want to do is meddle with that and undermine it, because there could well be unintended consequences.

What you want is a sensible look at the entire law and a structural, thoughtful change, if necessary. What you don’t want is little changes that might make you feel good, and my friend Emily Henderson talked about a sugar hit. You don’t want those things, because they won’t achieve your purpose. What they will do is undermine certainty and they will stop the police doing their job, which is to focus on the actual mischief in the particular situation, and that will vary. That is why I cannot support this bill going further. Thank you.

I call Erica Stanford—five minutes in reply.

Thank you. I won’t take that long, Madam Speaker.

Interestingly, in the Crimes Act there is a thoughtful and structured approach: it’s called robbery. It’s theft with violence—accompanying violence. It’s nice and it’s tidy and it’s structured and it’s well-thought-out, and the crime of carjacking would fit perfectly into that if it wasn’t for this small anomaly. All we’ve had from the other side of the House tonight is misunderstandings of the law from multiple speakers trying to get around the fact that they just don’t want to support what is a nice, tidy, easy-to-understand bill that makes sense that brings carjacking under robbery.

I had a short conversation with my good friend Matt King from up North, who rang me in a little bit of a state to tell me that he has never had a conversation with Greg O’Connor about this particular bill. Actually, the case is that many police officers and many prosecutors have come to him with this exact problem, saying, “We’re having to do all of these other things just to try and cobble together a number of charges, which wastes our time and which takes more of the courts’ time. There are multiple documents, there are multiple court appearances, there’s haggling. It would be nice and tidy and simple and easy if we could just put it under robbery, because that’s where it fits.”

Instead, we had multiple speeches from the other side of the House confusing things, and talking about conversion, which requires permission. Golriz Ghahraman, who just wants to give hugs to criminals, was talking about the fact that if there were two people, then that would amount to robbery, which is completely untrue.

All we were trying to do with this bill was to take a situation like stealing someone’s wallet, giving them a punch, and running off with it. Clear, easy to understand—robbery. But in the case of doing exactly the same thing with someone’s car, but dumping it somewhere 200 kilometres away, you cannot prove theft and it doesn’t fall under robbery. You end up with prosecutors having to cobble together multiple charges, which never reach the same threshold, as much as they like to say that it will—never reaching that same maximum sentencing of 10 years, wasting the courts’ time, spending a lot more money, and it would be much more easy, simple, and straightforward if we could just bring it into robbery. It’s not difficult to understand.

Unlawful taking is already defined in the Crimes Act, as Greg O’Connor mentioned, so it would have been very nice. Any possible stumbling blocks we could have taken to select committee, as Nicole McKee said, and worked through those. But, unfortunately, because we are dealing with a soft-on-crime Government, as is always the case, those victims of carjacking will have to wait for change of Government.