Gangs Legislation Amendment Bill

Thank you, Madam Chair. I want to first pick up part of my contribution in the previous session around—which the Minister didn’t have the opportunity to clarify—the greater implication of Part 5 by including gang affiliation as part of aggravating factors in section 9 of the Sentencing Act, particularly in terms of the interconnectivity of the Sentencing Act with the Crimes Act, and certain crimes that may have no affiliation or no relation to the gang affiliation being, unfortunately, attached or implicated as a result. One of the things I mentioned as part of that just very briefly was on section 220 of the Crimes Act in terms of theft in a special relationship.

The other thing I mentioned around the Crimes Act is section 66, in terms of party liability. I want to sort of expand on that, first, around party liability, which is some of the instances that we have seen previously when people—and in this case, when we’re looking at, potentially, the unfair treatment of wāhine Māori in this particular legislation, because if we’re looking at cases such as the R v Ahsin case in 2013 where wāhine Māori had been made accessory to certain acts that had been done by their spouses—in this particular case, under the requirement and the interpretation of section 66 of the Crimes Act, they were liable for the crime as well, under party liability. In this particular case, what you will see is that because of the aggravating factor that will be introduced as part of section 9 of the Sentencing Act, wāhine Māori may be unfairly targeted as a result of this.

I just wanted some clarification from the Minister or the officials on whether any modelling has been done on the potential to increase the sentencing and also on increasing the chance of wāhine Māori in our prison system as a result of this introduction. Now, this is particularly important since, for the longest time, we have been talking in this House about the fact that wāhine Māori and Pasifika women have been unfairly represented in our prison system. So I would like some clarification from the Minister regarding that.

The second part that’s also a consideration to this is I would really like the Minister to clarify or consider another scenario where gang affiliation may be unfairly treated if it’s included as an aggravating factor. That is when we’re looking at section 201 of the Crimes Act regarding infecting with disease. This is particularly the case when we’re looking at the R v Mwai case from 1995, where we are looking at people who either intentionally, or accidently—if we’re looking more broadly under a breach of criminal nuisance in section 145, which is a breach of section 156 of the Crimes Act, which is “Duty of persons in charge of dangerous things”—infect someone with a sexually transmitted disease. Again, those kind of things are criminally liable actions and people can be criminally charged, but the gang affiliation is a bit of a stretch in terms of having that being an aggravating factor under section 9 of the Sentencing Act.

All of these sorts of scenarios are scenarios that have happened in Aotearoa New Zealand. These are not things that are just hypothetical; these are actual cases. So when we are looking at this, what is the Minister’s consideration in terms of the potential increase in unfair treatment of gang members, or those who are affiliated with gangs, when the crime itself actually has very little to do with gang affiliation? So if the Minister wouldn’t mind clarifying—and that is section 220 of the Crimes Act, which is theft in special relationships; section 66, which is party liability; section 201, about infecting with disease, and, should the Minister wish to also respond, section 145, about criminal nuisance. Thank you.

Thank you very much, Madam Chair, and I thank the member Dr Lawrence Xu-Nan for his intelligent and articulate contribution. I think the two different legs of his questions can be answered substantially in the same way. Taking the second one first, around those different provisions within our criminal law that he says may be unlikely to be connected with the fact of gang membership, I think that the Government’s view is that it’s appropriate for the judge not to be unduly limited in deciding that extent of connection when she or he is making that decision, and, of course, in relation to the first point, that applies equally where we say that in relation to the proposal that wāhine Māori might be disproportionately affected.

Of course, the member is right to raise an important question for our society and, indeed, our criminal justice system more generally. But at an individual case level, the principle of equality before the law, as a key aspect of the rule of law, is such that these demographic factors should not be taken into account by the judge when making a decision on these matters at sentencing.

Thank you, Madam Chair, and thanks to the Minister for those comments. One thing that springs to mind immediately from those comments, and I think it’s actually quite an important one: is it the Government’s intention with the amendment to the Sentencing Act that the more closely connected to gang membership the crime is, the more aggravating the factor is? So if you’ve got a group of gang members engaged in a burglary, then that’s a gang crime; if you’ve got a gang member who’s carelessly used a motor vehicle, it’s not a gang crime. In terms of how aggravating gang membership is, would it be fair to say the more of a gang crime it is, the more aggravating it is? So that’s my first question.

My second question is actually one I hope the Minister will take a real interest in and might have some instructions on, and that’s on the retrospective nature of clause 17 in new Part 5 of Schedule 1AA of the Sentencing Act that is being added in Schedule 4 of the bill, which is the very last thing in the bill. Now, I raised this in an earlier debate, but the Minister didn’t get a chance to respond to it whilst he was there. This is the commencement clause for the change to the Sentencing Act, and, as it’s drafted, it says that “applies only to proceedings commenced on or after the commencement date.” The difficulty with that is that the offence could have been committed two years ago. The New Zealand Bill of Right Act provides that a person is entitled to be charged and sentenced under the law as it stood at the time that the offence was committed, and this actually departs from that. Now, my amendment solves that by replacing “proceedings commenced” with “offences committed”.

The last time one of my other amendments, the Minister sneakily put an Amendment Paper in as well and usurped me there, so it may be that that’s going to occur. But I actually think that’s quite an important one. It’s tucked away in the kind of depths of the bill, but it does strike me as a transgression of the retrospectivity principle in actually quite an important way. So I will stop there because I’m hopeful the Minister will be able to respond to that.

Hon Member: Madam Chair.

CHAIRPERSON (Barbara Kuriger): The Hon Dr Duncan Webb was on his feet first.

Hon Dr DUNCAN WEBB: Oh, thank you, Madam Chair. Well, I can see that the Minister—the very good Minister of Justice that he is—is thinking carefully about it. So I’ll just touch on the other question that wasn’t responded to, and I know that it may be that my friends on the other side are keen to leap to their feet, but it would be good for the Minister to have an opportunity to respond to these, even if it requires the committee to pause for a moment.

My other amendment is really about the difficulty we have with the aggravating factor simply of being a gang member when it bears no rational relationship to the offending, and my amendment, which has got a “l” on it, adds a subclause there which links it into serious offending so that it’s not shoplifting or, as in Mr Xu-Nan’s example, infecting someone intentionally with a sexually transmitted disease. That’s not one that leapt to my mind, but, again, it’s a really good example of a crime that doesn’t have a gang element in it.

I don’t agree with the underlying principle of the Act, but my amendment would at least make it so that there was some “gang-ness” to the crime, if you like, because it is serious offending as identified in this legislation. So if you could respond to that retrospectivity piece in particular, but also whether you’d smile upon that other amendment.

Thank you very much, Madam Chair. I do acknowledge and, as best I can, I will address the points that the member has made. In terms of the question of whether the Government intends that there’ll be a proportional relationship between, on the one hand, connection with gang membership and the nature of the offence, I think the Government’s position would be that that’s an appropriate question for the judge in any individual matter in the act of sentencing to consider and apply as they think appropriate.

In terms of the question of commencement, or rather the applicability of the new sentencing regime, as it affects a matter in which an actus reus has taken place versus the commencement of proceedings, it seems to me there’d be a relatively narrow subset of actions, and then cases to which this might apply. But it’s a reasonable question, I think, as far as it goes. It seems to me that the Attorney-General’s report under section 7 of the New Zealand Bill of Rights Act (NZBORA) did contemplate that question and, indeed, other NZBORA-related matters, and I think it seems to me that the intention isn’t that there be a retrospectivity about the bill and its effects. I would point out that while, of course, the NZBORA does have things to say about retrospectivity in relation to criminal matters, we’re not in the serious territory of declaring an act to be a criminal activity or offence that was not at the time that it was perpetrated, but rather a bit of nuance around the extent to which certain factors might be able to be taken into account.

On the third and final point, which I think is the amendment marked “p” for pa, then I think I’m right in saying that the—oh, I beg your pardon; I think that I’m in the same territory as I was for the one that was marked “l” for lemur. So if I’m confused on that point, I apologise. I’ll see if I can gain any greater clarity either under my own steam or with some help from my friends, or perhaps the member himself.

I move, That debate on this question now close.

I’m going to take a call from Tamatha Paul, as the Minister has just indicated that he’s looking for some more clarification, but I believe we are getting close. We’ve had a lot of time on this bill.

Kia ora, Madam Chair. Thank you for allowing me to take a call on Part 5 of this bill. My question is related to aggravating factors, and I know that we have already covered the aspect that the crime that has been committed might not relate to the offender’s membership of a gang. But I do want to dive into that aggravating factor a little bit more and the way that this takes away discretion from the judges who are charged with taking into account the person before them and then giving them a programme of rehabilitation or sentences that deals with the offending that has taken place.

My question to the Minister is: why doesn’t the Government trust the judiciary to implement the aggravating factor for gang membership that already exists within the legislation, and why is the Government choosing to override the judiciary again? Today, we had hearings on the three-strikes legislation, which does a similar thing in that it provides more instruction to judges about how they need to sentence and deal with different crimes. Again, we have this really important separation of powers within our democratic system that separates us and the executive from the judiciary. This takes out the judge’s discretion.

I’m further concerned that with the un-funding of section 27 reports that our judges aren’t going to have an accurate picture of the person before them to be able to give them an outcome that actually addresses their offending and addresses the needs of the victims, if there are some, in the situation. So how is the judge supposed to take into account what appropriate rehabilitation is needed when they don’t have the cultural or background information that they need via a section 27 report? I’m assuming that most people who are in gangs would probably need to rely on legal aid for that section 27 report. But all the judge has got in front of them is this aggravating factor that this person belongs to a gang, but doesn’t have the reason why this person is in a gang in the first place. We know that that’s important context to have, because just two weeks ago, we had the abuse in State care report, which detailed just one of the many reasons why people feel that they need to turn to gangs in the first place.

Actually, if you look to the report of the Chief Science Advisor to the Prime Minister about minimising gang harm in Aotearoa, that adviser says in the report that gangs exist because they perform a function within society. This is all-important context that our judges need to have before them but won’t be able to have before them. So that’s my first major question: what has led to the major distrust in judges’ abilities to provide appropriate sentences? Is it because this Government chooses to prioritise deterrence theory, which is, effectively, that people who commit crime are aware of the sentences tied to the crime that they’re committing—which we know is not true?

Often, crime is motivated by emotions and the situation before the person who commits the crime, as opposed to them making a rational decision based on “If I do this thing, these are the consequences of my actions.” That’s not the way that crime happens, and we had lots of criminologists and lawyers and people that work in the criminal law space that understand that deterrence theory isn’t accurate and doesn’t work because the people that commit crime and most of the people in prison have got significant mental and cognitive issues. Their literacy is not the same as everybody else. There are significant neurodiversity issues with people that are in prison, and their ability to make decisions and weigh up the consequences of their actions is impaired. So that’s my first question.

Has he seen any evidence at all that making gang membership an aggravating factor at sentencing will help people to exit gangs as well, because that’s surely the outcome that we all want across the House. We want fewer gang members and we want to make sure that people can exit gangs safely. But what evidence has he seen that longer sentences—which will inevitably come through a bill like this—actually lead to people exiting gangs in the first place?

Madam Chair, thank you. Very briefly, if I may, I won’t engage on the points that were not related to the bill, but to the three points that were in relation to the member’s contribution. She alleges that we are overriding the judge’s discretion—indeed, we’re not; we’re actually empowering choices that they make to decide the appropriate weight to place on gang membership in relation to any individual matter before them.

Second, she makes a point around deterrence as though deterrence was the only aim of the criminal justice system. It is not. There are various others, including prevention, which is by way of saying that if members of the public who have committed violent acts are behind bars for the period of time that they are, society is a bit safer. Again, that’s not a sole or exclusive aim of the criminal justice system, but it’s another one, and another one, incidentally, is rehabilitation. This Government’s approach is that if we have better rehabilitative processes when people are incarcerated then they will have better life prospects, including in relation to society and community membership other than by gangs.

Finally, in relation to sentences, I think the member’s point was along the lines that there would be an effect on sentencing. But, of course, again, it’s back to a judge’s discretion in terms of determining the appropriate degree of weight. But Parliament has the ability to provide guidance to judges through the Sentencing Act. That’s then applied in individual cases without our interference, and that’s why we have a Sentencing Act in the first place. I would be surprised if any member of this House would suggest that we shouldn’t have any kind of guidelines in the Sentencing Act, at all.

If I can just return to the points that were made by Dr Duncan Webb previously, one of which I missed addressing entirely—that was the amendment marked “p”. The point, actually, for that—and I do want to say it on record because this is important and this could be a matter that judges take seriously going forward in terms of understanding Parliament’s intent. In the Government’s intent, we intend that this legislation be interpreted consistently with the New Zealand Bill of Rights Act (NZBORA). So, if there is any question of that in terms of perceived or alleged ambiguity, please know that we intend that the bill be interpreted in a way that is consistent and able to be consistent with NZBORA.

Finally, amendment “l”—“l” for “lemur”—is provided again by the Hon Dr Duncan Webb. That would have a broader effect than just this bill, so we don’t propose to accept that or at least vote in favour of it.

I move, That debate on this question now close.

The question is that the Hon Dr Duncan Webb’s tabled amendment to insert clause 37(hb)(iii) be agreed to.