Sentencing (Reinstating Three Strikes) Amendment Bill

Members, we come now to Part 2. Part 2 is the debate on clauses 13 to 23, “Amendments to other acts”, and Schedules 2A and 3. The question is that Part 2 stand part.

Thank you very much, Madam Chair. I’ll just take a quick call here, looking at the amendments proposed by my colleague Dr Lawrence Xu-Nan in Part 2: one’s relating to clause 14; one’s relating to clause 16. I’m keen to understand from the Associate Minister of Justice whether or not she’ll be supporting those amendments and the rationale as to whether she will be or not, and then I’m keen to move to the more substantive parts of the legislation that we’ll be progressing.

Thank you to the member Tom Rutherford for his question. I did pre-empt this a bit last night and actually went through these when we were on Part 1. I’ll repeat what I said yesterday evening. In relation to the Green Party member Dr Lawrence Xu-Nan’s tabled amendment to delete clauses 20 to 22, I do not agree with that member’s position. I believe that offenders should face serious consequences for repeat offending. Just a reminder that there is a “manifestly unjust” exception within the bill to assist.

In relation to the tabled amendment to clause 14, replacing paragraph (b) and inserting a new subclause (4)(c), again, I do not feel that this is necessary. This is adding items to the list that have already been covered. Therefore, I will not be supporting that either.

Thank you, Mr Chair. Thank you for that explanation before, as well. Again, I think I want to start methodologically for Part 2, and I want to start with clause 14. I’ll come to clause 16 a little bit later.

Now, in terms of clause 14, I want to get some clarification from the Associate Minister of Justice in terms of the definition of “sentence”. This is the amendment to the Criminal Procedure Act. I know that we talked about the Criminal Procedure Act before in the context of what is considered a permanent court record, but I think, in this case, what we’re seeing is that “sentence” here in clause 14, inserting replacement section 180(4)(a), makes sense—that’s fine—but I’m looking at replacement section 180(4)(b), and this is the part that I want clarification on. It says a sentence includes “a record of first warning and a record of subsequent warning”—“and” not “or”.

I wanted to check, in this case, does the Minister consider that a sentence will only be considered or is only defined when you have both a first warning and subsequent warning? This is one of my tabled amendments. I don’t know what timestamp it has, but it is the one that amends this particular clause, which is just separating out these two particular clauses to specify that these two—first warning and record of subsequent warning—are in fact mutually exclusive.

Another point I want to check with the Minister is, again, that when we are looking at the use of “and”, and “or” in this case, if we’re looking at clause 18—this is the amendment to the Evidence Act 2006—it says, “Before section 139(1)(c), insert: (ba)”. Then, in this case, it indeed used “a record of first warning or a record of subsequent warning”—“or” instead of “and”. I guess the clarification I need from the Minister is whether replacement section 180(4)(b) requires both or are they mutually exclusive? If indeed they are mutually exclusive, will the Minister consider my amendment?

Thank you to that member. I did just speak to the member’s tabled amendment to clause 14, replacing paragraph (b) and inserting a new subclause (4)(c), which I thought was unnecessary. This is a technical portion of the bill—Subpart 2—and, really, clause 14 is looking at the definition of “sentence” in replacement section 180(4). It’s amended to include records of first warning and subsequent warnings, including the giving and the recording of those warnings, as well as orders which could be issued under the new three-strikes regime.

While I’m on my feet, I realise I missed out the tabled amendment to clause 16(6) and the insertion that the member wishes to make after section 34(5) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. I will not be supporting that tabled amendment. The court already has the discretion in being able to decide about what is a qualifying sentence, and we’re happy with that provision.

A lot of this part is in some ways administrative, but I do have two things I want to ask and, to be fair, it’s simply around the complexity of this legislation and how it interacts, and that’s in respect of the Criminal Procedure (Mentally Impaired Persons) Act and also a bit later on, if I get to it, the Parole Act.

Clause 16, which amends section 34 of the Criminal Procedure (Mentally Impaired Persons) Act, inserts into section 34 an additional provision. Section 34 provides the power of the court to commit an offender to hospital or a facility. Obviously, this is for mental health reasons, and I think, in this House, we don’t all agree on this bill but we all accept that where offenders and prisoners have mental health and other issues that part of the corrections system is to address that. I may have this wrong, but I’m just a little concerned that the proposed insertion provides that “No order may be made under subsection (1)(b) in respect of an offender who is convicted of a stage-2 offence, or a stage-3 offence, [for] which the court would, in the absence of that paragraph, have imposed a qualifying sentence.”

Now, to be honest, it’s not clear to me, but I’m concerned whether that provision, in fact, limits the ability of a court to make an order under the Criminal Procedure (Mentally Impaired Persons) Act that that person be sent to a medical facility so that their mental health issues can receive treatment, because I don’t understand that to be part of our kind of punishment regime—to deprive people of health treatments; in fact, the opposite, that people in corrections should be getting health treatments and, in particular, mental health treatments. I might have that wrong, but I’ll give the Associate Minister of Justice an opportunity and I’ll come back to my parole question.

I thank the member for his question. The changes that are being made to the availability of orders, under the Criminal Procedure (Mentally Impaired Persons) Act 2003—I can see why the member has asked some questions on this. The bill, as introduced, actually restricted the availability of post-conviction orders for treatment instead of a sentence, when the court would have otherwise imposed a qualifying sentence at all three stages. This is intended to ensure that serious offending receives serious sentences, and to reflect that orders imposed instead of a sentence are typically reserved just for the minor offending.

The majority of the Justice Committee actually recommended that the availability of the post-conviction orders, under the Criminal Procedure (Mentally Impaired Persons) Act 2003, only be limited at stage-2 and stage-3 of the three-strikes regime. There is no limit on orders at stage-1. It’s not required, because there are no mandatory penalties at stage-1, but because there are mandatory penalties at stage-2 and stage-3, we are happy with where we’ve landed with this.

I must say, just in response to that, that it is extremely disappointing that people who are mentally ill and in the corrections system by dint of this legislation—that orders can’t be made to put them in a facility where they receive the treatment that they actually need. I’m quite sure that that’s in breach of our international obligations under the United Nations convention known as the Mandela Rules. That’s actually quite disturbing.

I’ll go to my second point, which is parole. It’s clause 22 of the bill, and these are amendments to the Parole Act, and it’s about non-parole periods. Now, we don’t agree with it, but I understand that if you’re sentenced to your second strike, you don’t get parole for that sentence. The Associate Minister of Justice has alluded to the fact that it is conceivable that people could be serving a sentence and be in prison and commit a strikable offence, and so they will have two sentences. It’s even possible that the sentence that they’re serving is a very serious one—they could be in prison for murder and be serving a very long sentence.

In clause 22, it’s new subsection (3A)(b) I’m concerned about, because the provision provides that “An offender who is subject to an order made under section 103(2A) of the Sentencing Act”—three strikes—“is not eligible for parole in respect of the following sentences: (a) the sentence to which the order relates:”—that goes without saying—“(b) any other sentence to which the offender is subject when the order is made”. Now, if that offender is imprisoned for murder, that is then sentencing them to life without parole—life without parole—because that’s the sentence that that person is already serving. Elsewhere in the Act, there are quite different provisions around murder which don’t say “life without parole” but they do state minimum non-parole periods for people on strikes. Again, I don’t agree with it, but I understand it.

It’s not just murder; it could be anyone being in prison for a sentence which is longer than the strikable offence that they’ve committed in prison. In fact, by committing that strikable offence, you are actually subject to double jeopardy—you’re punished twice. You’ve been sentenced once, and because you’ve committed a strikable offence and you’re still serving your sentence, you’re punished again by having your ability to apply for parole for that sentence removed.

The worst position is in respect of murder, which, if I’ve got it right—and I can see there’s some work going on behind the Minister—that’s life without parole, and there’s only one person in New Zealand who’s got that. I’m pretty sure that’s not the legislative intent, and it may well be that we need to come out of committee and go back into it to fix that up, because it’s not an easy piece of drafting, but that’s what happens with complex legislation of this nature.

Thank you, Madam Chair. Thank you, Minister, for your response to my question on clause 14. The Associate Minister of Justice was saying that it is not required, but that didn’t answer my question, which was whether they are mutually exclusive. But I’m going to take that answer from the Minister as saying that they are mutually exclusive and they don’t need to be considered together.

Now, I do want to pick up on—and apologies if I didn’t hear it correctly—when the Minister was going through my amendments, the Minister mentioned that my amendment to clause 16 doesn’t need to be considered and that my amendments for clauses 20 to 22 don’t need to be considered as well because we already have provisions in place for the test for what is “manifestly unjust”. I may have misheard the Minister, but that wasn’t what my amendments were on. What I want to also remind the committee as well is that we still haven’t got a clarification based on what the Hon Dr Duncan Webb mentioned earlier about what “manifestly unjust” really means.

In terms of clause 16, I am concerned that for someone who, based on the definition of mentally impaired in the Criminal Procedure (Mentally Impaired Persons) Act 2023, would not be considered, because under new section 34(6), which is to be inserted by clause 16, no order may be made, and there is no wriggle room for that. If the Minister implies that “manifestly unjust” is already embedded as part of subsection (6)—again, a one-sentence clarification is all that I need. If it’s absolutely not considered, which is what is stated here in subsection (6), that then is deeply concerning, particularly from the perspective of disability activists and the number of neurodivergent and also dyslexic people, and also people with severe mental trauma who might be put away for much longer than they are required to be.

Clarification on whether “manifestly unjust” applies to new section 34(6) is absolutely crucial in this case. If it’s not and there is no leeway if someone is at a stage-2 or a stage-3 offence, then I would like to ask the Minister what advice has been sought since this bill has been, in some ways, redrafted since the Justice Committee has received the report from the Attorney-General on the test in section 9 of the New Zealand Bill of Rights Act.

Thank you, Madam Chair. I’m just going to go back to clause 14, just to clarify again that this is a technical tidy-up. The current wording ensures that both are covered, and the current wording, as far as I’m concerned, is fine because it’s the same as the previous regime.

In regard to clause 16, the current drafting ensures that orders under section 34(1)(b) are only available for the lower-level offences—that is, those less serious offences that are in line with current case law. Orders under section 34(1)(b) apply instead of a sentence. Orders under subsection (1)(a) are still available in all cases, and these will apply alongside the sentence.

Speaking to clause 22, which amends section 84 of the Parole Act 2002, this is a remedial amendment correcting an error that was made when the three-strikes regime was initially repealed in the Three Strikes Legislation Repeal Act 2022. It actually does not have anything to do with the three-strikes regime itself, but because some of the provisions of the Parole Act in 2002 were repealed in error, we want to ensure that there is consistency between the Parole Act and section 103(2A) of the Sentencing Act 2002. It’s important that we make it clear that there is no parole eligibility for offenders currently serving this sentence, of which there is just one, and it’s merely just putting back into legislation at the earliest opportunity the error that was made when the previous Government repealed that provision.

Thank you, Madam Chair. It’s the first time I have had the chance to contribute to this debate. I just wanted to, essentially, start by just acknowledging members opposite for their contributions and for continuing to contribute and be here with us. I guess, I think, we’ve all noticed the numbers in the votes at the moment. I just wanted to acknowledge the commitment that we all have, because it can be tough doing this on a Friday when there are electorates and families and things that people could be doing. I appreciate the commitment to the democratic purpose from all members opposite.

Look, I agree with Dr Webb. Dr Webb mentioned that this is, essentially, an administrative part. It makes a number of consequential amendments to other pieces of legislation. My first question to the Minister in the chair is, essentially: does she agree with that assessment, that it is an administrative part and it makes the amendments to other pieces of legislation that will operationalise the three-strikes regime?

The second point was just to Dr Xu-Nan’s point and to try and wrap this up, around the “manifestly unjust” provisions. They are very well understood in case law. There’s a reason why they are not defined in statute, because they are well understood in case law, including in Fitzgerald v Muldoon, which the member is very well accommodated with. It’s my feeling that we have covered that off in Part 1 and we shouldn’t be relitigating the meanings of “manifestly unjust”, because we’ve already made a determination on that question.

To the Associate Minister of Justice: is my understanding correct that this is, essentially, a gathering of about—how’s my maths?—nine or 10 clauses which relate to, essentially, administrative functions of operationalising the regime in other statues?

Yes, that member is correct. This is just about technical tidy-ups and ensuring that the legislation fits within different areas of law and that they will all speak with each other. It is very much just the technical side, and, as I mentioned in the previous call, one of them is a tidy-up from an error made under the previous Government when they accidentally repealed something that they should not have repealed, and, as I mentioned, we’re taking the first opportunity in the three-strikes regime to fix that and to reinstate it. When we’re looking at the Criminal Procedure (Mentally Impaired Persons) Act and the Sentencing Act, we need to make sure that they all align with each other to enforce this legislation once it goes through.

On the basis of the conversation that we’ve just had—and I’ve been listening to this debate in terms of Part 1 since 10 p.m. last night; so, effectively, four hours—I’m finding that there is a bit of repetition creeping in, and so I want it to be very precise and very administrative on the calls that we’re going to have from here on in.

Thank you, Madam Chair. This is my first call on Part 2, and I’m going to just continue with the line of questioning that’s already been asked about the amendments to the Criminal Procedure (Mentally Impaired Persons) Act, because I’m still not 100 percent clear on that. I’m quite happy to do short, sharp questions as long as I can get some clarification. It’s a genuine question to clarify where we are at in the differentiation between what is a first strike, a second strike, and a third strike, and who is still able to have orders even though they may be alongside sentencing—the difference between people who have forensic needs and mental health issues.

The amendment to section 34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003—the Associate Minister of Justice has just said, in her first response to this question, that therefore no orders will be available. On the second response to the question, she said orders will still be available alongside sentencing, but it clearly says that “No order may be made under subsection (1)(b) in respect of an offender who is convicted of a stage-2 offence, or a stage-3 offence,”. I have taken that to say, and I may be wrong, that if someone on their first strike is eligible, for lack of a better word, for an order to be sent somewhere different—essentially, to a forensic facility because of an impairment, almost certainly an Axis I disorder—if they’re on their second strike or their third strike, that same pathway isn’t available to them.

So, (a) is that correct, and (b), if it is, what is the rationale behind that? Is it because, on a first strike, someone has presumably served over 13 months; therefore, any mental health condition severe enough to require a section 34 would already have been uncovered? I’m just unclear as to why stage-2 and stage-3 are not included. If the Minister could answer that—I have some other questions—that would be good.

I move, That debate on this question now close.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 14 replacing paragraph (b) and inserting a new paragraph (c) of subclause (4) be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to subclause (6) of clause 16 be agreed to.

Dr Lawrence Xu-Nan’s tabled amendment to delete clauses 20 to 22 is out of order as being contrary to the objects and principles of the bill.