Sentencing (Reform) Amendment Bill

Members, we now come to Part 2. Part 2 is the debate on clauses 17 and 18, “Amendment to Family Court Rules 2002”. The question is that Part 2 stand part.

Thank you, Madam Chair. I do have some questions about this, and it may seem relatively technical, with clause 18 making what looks like a minor amendment to delegated legislation, namely the Family Court rules. It ties in with section 123B of the Sentencing Act, and that provision in the Sentencing Act 2002 essentially says that if an offender is convicted of a family violence offence and there is not currently in force a protection order, then the court may order a protection order. That makes perfect sense, but this actually does something quite significant in conjunction with clause 14 of the bill. What it does is it extends that power to people who are not convicted of an offence, so the court can put in place a protection order, under this rule change, where the person is either convicted of an offence or has been discharged without conviction for an offence.

Now, don’t get me wrong—there’s a real place for protection orders in the absence of conviction but where violence is proven, but where there’s a discharge without conviction, that discharge may occur for any number of reasons. I’m wondering, Minister, whether this is an acknowledgment that because of these ridiculous sentencing rules that you’re putting in place, judges are going to have to default to discharges without conviction because they’ve got a choice between a sentence that is entirely unfair and providing a discharge without conviction. And that’s a really problematic dilemma for them to be in, because if we’ve got a victim of family violence, we shouldn’t be giving powers to the court to make what are, in a sense, punitive orders where there is a discharge without conviction.

So I have real concerns that you have caused, essentially, a distortion in the law here by saying, “You might get a discharge without conviction but we’re still going to impose an order on you even though you have not been found guilty of that offence”, and the underlying policy reason is that you know that discharges without conviction are going to rise, and there will be situations where under the current law people wouldn’t get a discharge without conviction but in considering a discharge without conviction, the job of the judge, under the Act, is to actually determine whether a conviction would be disproportionately severe. And because you’ve just turned up the temperature on all of these sentences, it’s much more likely that it will be disproportionately severe.

So you’ve got yourself into a pickle because the discharge without conviction will still be there but we know, in fact, that the offence occurred. It’s only the sentence that the judge will be compelled on conviction to impose, which makes it entirely disproportionate to enter that conviction. So we’ve got a real dilemma, and in fact this is the kind of thing that’s going to happen. People are going to be less safe in this kind of situation because of these discharges without conviction. And you’ve now got a situation where you’ve got orders which should follow conviction now following from discharges without conviction.

Now, I’m aware that a discharge without conviction usually requires the offender to accept responsibility for the offending but it is the opposite of a finding of guilt. It’s a finding that says the court is not interested in intervening here. For whatever wider policy and justice reasons, it is going to discharge this matter. It is going to send it away. It’s saying it’s, “not going to make a finding adverse to you. Nor are we going to find you not guilty. We’re simply going to discharge you and bring this matter to an end because in terms of wider policy issues and the justice of this particular case, that’s the right thing to do.”

So you’ve got yourself into a right bind here because that’s going to happen a lot and I’m wondering if that’s really why you’ve done this protection orders.

Well, thank you for the wide speculation by the previous member, the Hon Dr Duncan Webb, on the potential elements of this. This is quite a very tightly detailed piece of the legislation. In terms of protection order, it is important that if a judge considers the conduct warrants a protection order, that they can grant one. That’s what this clause refers to. That prevents victims having to make a separate application for a protection order and saves court time, which is better for the victims of crime.

Thank you, Mr Chair. I just want to follow up on what the Minister of Justice has just said. I do want to check in terms of the policy intent behind clause 18 of Part 2, because, understandably, this has victims of family crime as the focus here. But I do want to specify that section 106 of the Sentencing Act specifically says that when you’re looking at discharge without conviction, it amounts to an acquittal, which then begs the question: if we are giving protection orders to people but without any sort of subsequent guidance, what advice has the Minister received in terms of whether this is something that is actually beneficial to victims of family crime? Because one of the things that we do see when it comes to victims of family crime is the fact that, often, if it is not dealt with carefully in terms of conversations with, or education of, the offender, we do actually see that things could possibly get worse.

I get what the Minister is saying—that he doesn’t mean that the victim needs to make a separate application for protection order. But I wondered if what we’re doing here is very much the last resort, bottom-of-the-cliff kind of approach, whereas what we’re not seeing here is what is actually beneficial for the victims and what are the tools that allow an offender, in those circumstances, to be aware and to be able to change their actions or change their perspective because of the fact that there is a guidance, a kind of an education, following on.

So my question is sort of around the policy intent of this. Again, going through the department report, this is not an area that was discussed in detail, but like the previous speaker, the Hon Duncan Webb, said, it is reasonably significant, because when you are acquitted of a crime, you are supposed to be able to have no potential punishment or repercussions as a result. And there are other factors that will intervene from a New Zealand Bill of Rights Act perspective as well, which also wasn’t something that was explored in the Attorney-General’s report.

So I just want to get some clarity around: if this was supposed to provide support and be beneficial to the victim, what is the evidential basis for that?

Thank you, Mr Chair. So the way I understand this is that for a section 106 discharge without conviction, that means that in instances where there was no consequential sentencing or conviction on the record, you would still be able to have a protection order in place if the court thought so. And I would assume—and the Minister of Justice might want to clarify this because it leads into my question—that the judge would then be determining, on the facts before them, when that would apply in terms of a section 106 discharge. So if the Minister could just give us an indication, because the whole kind of purpose of this bill appears to be to limit or curtail judicial discretion, so I’m just interested to understand why in this particular area he’s OK with judicial discretion.

Because the proposed amendments in the Act and the combination of the implementation of three strikes, which has already been put in place, represents a really significant shift in the willingness of limiting judicial discretion and, effectively, restricting judges and having a prescriptive sentencing framework that makes sentencing less efficient. So I’m interested to note why there’s this carve out here for section 106, “Discharge without conviction”, when the entire kind of ambit, the purpose, of the bill is to strip away the discretion of judges.

I’d like to point out—I think it’s important, and even the regulatory impact statement notes this—the fundamental problem with this approach is it limits the judge’s ability to consider the circumstances particular to the case and to deliver an individualised sentence. Conversely, it really could be argued that a far more prescriptive approach to sentencing might have some benefits—and I’m sure he’ll argue it—but how does he map out section 106 discharges differently to the rest of the bill, which puts significant limitations on judicial discretion? He’s been picked up by the New Zealand Bill of Rights vet in saying that the existing framework has got real issues for when the judges are having the ability to look at what is before them to make an appropriate sentencing and a determination based on the facts before them.

So in a nutshell, my question is: what’s good for the goose should be good for the gander; why is the Minister saying that it’s fine to take power away from judges in one part of the bill, but in this part of the bill you’re saying they’re able to say, “Oh, you still get a protection order in place even if you’ve had a 106 discharge.”? We heard—at the Justice Committee, stakeholders quite clearly advised that limitations on judicial discretion have unintended consequences, and these risks do include legal challenges on procedural grounds for breaches of the New Zealand Bill of Rights. A prescriptive approach can drive significant court delays—and we know the Family Court which this would apply to in this provision, under clause 18 of Part 2, has already got significant delays in the system. So they have complex and big problems long term, and those delays—we know—plague our justice system. Officials have made it clear that they consider it important that judicial discretion is maintained right across the various amendments in the bill, so it is unclear why this this part in Part 2, clause 18, rule 431B is different.

Under this bill, the changes proposed, if implemented, have a really big impact on the ability of judges to weigh up the information before them, take into consideration the victim, the family, what’s happening in these situations, and to be able to use the breadth of their knowledge and understanding of the law to make sure that there’s an outcome that keeps communities safe, that reduces the chances of reoffending, and also gives fairness before the law. So I’m really interested to note why the Minister feels so strongly about curtailing judicial discretion, yet here the Part 2 of the bill there is a specific—it appears to be a carve-out for a section 106 discharge without conviction still being able to have a protection order in place. In this instance, that would be a discretion of the judge to determine when that would apply. So where is it OK for a judge to have some independent consideration and when is it not?

I’ll just respond briefly. This legislation doesn’t change the threshold for the granting of protection orders, and so we’re not dealing with that. All it does is it stops the need for a separate hearing on matters. So that prevents victims having to have a separate application, which saves court time, which I think the member just said she was concerned about—and that is the purpose of this whole bill.

I move, That debate on this question now close.

The question is that Dr Tracey McLellan’s tabled amendment to the Schedule be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendments to the Schedule be agreed to.

The question is that Helen White’s tabled amendment to the Schedule inserting new clause 24A be agreed to.