Gangs Legislation Amendment Bill

Members, we now come to Part 5, and this is the debate on clauses 36 to 38, “Amendments to Sentencing Act 2002”, and Schedule 4. The question is that Part 5 stand part.

Thank you, Madam Chair. I’d like to talk first to the Sentencing Act amendment, and this is actually quite a surprising amendment, because there’s a pretty basic concept with sentencing that the conduct and the aggravating factors have to bear a rational relationship with a sentence.

You’ll see that section 9 of the Sentencing Act, which is being amended, is the list of aggravating factors. So it becomes an aggravating factor that at the time of the offending, the participant was “in an organised criminal group”—a gang—and that’s it. It’s important to note what’s being replaced. What’s being replaced is that they were involved “in an organised criminal group” and that it had a connection with the offending. Now, that makes perfect sense, because if you’re in a gang and the gang goes and does a robbery, that is aggravated, and absolutely you should have a more serious offence because you’ve been part of an organised criminal group doing organised crime—that’s what the law is at the moment.

Now—and if I’ve got this wrong, Minister, I hope you’ll correct me—if you’re a gang member and you drive carelessly and crash your car, the judge has to give you a harsher sentence because you’re a gang member, because that’s an offence, right? Careless use is an offence—no rational causal relationship between gang membership and the aggravating factor. Now, my amendment marked “l”—I still don’t like it, but I think that it would be an improvement if my amendment marked “l” was adopted, which, essentially, says let’s at least get rid of the minor offending. Let’s at least get rid of disorderly conduct, or whatever that minor offending might be, because if we’re interested in serious offending—let’s say it’s an aggravating offence. If you’re a gang member and you’ve been convicted of a serious offence as defined in this piece of legislation—because we’ve set out what serious offending is—it triggers a whole lot of stuff.

If we’re going to say, “OK, if you’re a gang member, it’s aggravating when you do serious offending because gang members do serious stuff.”, that would make a lot more sense, because just remember what we’ve got at the moment. There is no rational connection—there doesn’t have to be a connection, by definition—and this is the wider point about this legislation. It’s the criminalisation, not of the conduct of gangs but of being in a gang. It’s making it criminal to be in a gang, and that’s problematic. What my amendment “l” would do would be to say, “Well, look, at least restrict this to serious offending.”, and not to driving offences and not to regulatory offences, health and safety Act offences—who knows? There are all kinds of offences under other Acts which gang members might be liable to be sentenced for, and where there are two identical people but one is a patched member, the patched member gets a harsher sentence, not because of their intent, not because of their conduct, not because the crime is gang-related, but simply because of the patch that they’re wearing on their back.

Now, no one likes gang members in this party, but we don’t want to distinguish between gang members and non - gang members on irrational, unfair, unjustifiable, and unconstitutional grounds. So that’s what this does. That’s what my amendment goes some way to fix, and I’d like the Minister’s response to that.

Kia ora, Madam Chair. Following on, once again, from my colleague in Labour, who’s talking about the things that I want to share as well. It is true that if being a member of a gang is an aggravating factor when you get a parking ticket, well, that’s going to be an issue for many of our people, because, ultimately, don’t we have the right to freedom of association? Don’t we have a right to mix and mingle with our whānau according to our own tikanga? Freedom of expression as well, and it might be in wearing a gang logo or insignia.

What I do want to ask the Minister is: in terms of the judiciary, there’s already existing legislation in relation to aggravating factors to do with gang members, so why is the Government overriding the judiciary, in this case? So that’s one question.

I’m also wondering: is there any evidence base to what we’re doing, this legislation itself? And that by making gang membership an aggravating factor in sentencing, will this actually help our people to exit gangs? Is this something that correlates to helping gang members out of the gang system?

Further, I’m really keen to understand what the Minister may have researched or thought about a cost-benefit analysis, in terms of maybe the increase of imprisonments and how much this is going to cost the New Zealand taxpayer? As a result of this bill, we could see quite a few more Māori in prison—fill up that mega-prison at Waikeria.

So those are some key questions around imprisonment; cost-benefit analysis—how much is this going to cost the taxpayer? Also, in terms of existing legislation on aggravating factors and why we are adding this provision within this legislation when it already exists. But also is this pathway—and what are we doing? Is this actually a part of the Government’s plan to help our people out of gangs?

I want to also think about the cycle of criminalisation of our people, and going back again, because we do have to keep returning, to the release of the royal commission of inquiry into State care and abuse a couple of weeks ago.

CHAIRPERSON (Barbara Kuriger): The member makes good points, but not so relevant to this clause. I’ve heard a couple of times about “aggravating” and “mitigating” factors. Could we keep to the point of the clause, instead of a broader debate. Thank you.

HŪHANA LYNDON: What I’m wanting to ask the Minister, in thinking about that factor that influences gang membership, is: why are they looking to incarcerate these communities who have a right to freedom of expression and right to freedom of assembly, when they’re just gathering in a public place?

Further, are there any new ideas to reduce harm in our communities that don’t involve locking up Māori? Kia ora.

Thank you, Madam Chair. This part is very short, and it relates to the Sentencing Act. So just in terms of Dr Webb’s proposed amendment, it doesn’t align with the purpose of the Sentencing Act amendment, which is, of course, to give greater weight to gang membership at sentencing.

Thank you, Madam Chair. I do have another point, and it’s actually quite important. It’s tucked away in Schedule 4, section 17 in new Part 5 inserted in Schedule 1AA of the Sentencing Act 2002. It’s interesting because it’s there in the depths of the last dying words of this piece of legislation, and it’s actually about when the sentencing rules apply from. And we know there’s a pretty fundamental principle that it is in the New Zealand Bill of Rights Act, and I can’t give you the clause, that you are entitled to the sentence—to the benefit at the time of your offending. So if the sentence goes up after you’ve offended, you’re entitled to the benefit of the sentence at the time you committed the offending.

Then, clause 17 says this: “To avoid doubt, section 9(1)(hb) of this Act”—the one we’ve just been talking about—“(as replaced by the Amendment Act) applies only to proceedings commenced on or after the commencement date.” Now, that’s not right, because it should say “offences committed”, not “proceedings commenced”, because an offence could be committed a year ago under the old regime. So this is deeply retrospective because the offender will now be sentenced under a sentencing regime that was not in place at the time they committed the offence.

Now, that is dealt with by my amendment marked “p”, which suggests we delete the words “proceedings commenced” and replace those words with “offences committed”. That is actually a deeply problematic and retrospective penal provision. If we’ve got an offender, a serious offence, and the judge is like, “I’ve got to impose an aggravating factor”, and they’ve got a very clear mandate, or a very clear direction, here, that it’s at the time the proceedings were commenced rather than the offence was committed—that’s problematic. And I can see that there’s a bit of busyness over in the corner of officials there, so I hope I’m going to get an answer. I’m imagining the answer’s going to be, “Well spotted. Thanks for that. We’ll be voting for that.”

Thank you, Madam Chair. I want to pick up on the fact—so, first of all, going off what the Hon Dr Duncan Webb mentioned before, I think this is particularly highlighted in the Pora case at the turn of the millennia. In this case, I want to talk about the fact that Part 5 probably is one of the most significant parts because of the potential ripple effect it can have in terms of our sentencing system.

Now, the Sentencing Act works hand in hand with the Crimes Act, and when we’re looking at aggravating factors within the Sentencing Act and the fact that the original terms of imprisonment, for example, come from the Crimes Act, I want to get some clarification from the Minister or the officials on two particular sections that I think have a certain impact under this particular clause and on whether the Minister or officials have considered them.

The first one is section 66 of the Crimes Act that talks about party liability. Now, in this case, when it comes to party liability—and we’re looking particularly at section 66(1)(d), which talks about “incites, counsels, or procures any person to commit the offence.” If we are adding gang insignia or gang membership as an aggravating factor, that potentially applies to a lot of circumstances, and a person could be considered to get a higher sentence because of that. Party liability, in this case, would be treated very carefully, and it should be treated very carefully.

The second part is section 220 around theft in a special relationship. Now, understandably, when we’re looking at theft in a special relationship, most of the time it results in a fine, but sentencing has occurred. So when you’re looking at theft in a special relationship, it comes back to the fact that that particular circumstance and situation may very well have nothing to do with the person being a gang member, but by association, the sentencing must consider that as an aggravating factor. Once again, it doesn’t need to be tied in together. It actually creates a lot of concerns.

The final clarification I want to check from the Minister is how this then works with the three-strikes legislation. Now, previously we heard from the Minister that the limit is 24 months in terms of sentencing, but, in this particular case, if it’s an aggravating factor which increases the sentence, which then also increases the number of people who are gang members who will meet that 24-month threshold, we’re also further compounding the offence that they will create and further make it easier for gang members to trigger that three strike legislation. I want to check with the Minister whether that has been considered as well.

Has the Minister considered the way the Sentencing Act and aggravating factors will work with section 66 of the Crimes Act, section 220 of the Crimes Act, and whether this is going to create a higher probability of those people triggering the three-strikes legislation? Thank you.

Progress to be reported.

House resumed.