Sentencing (Reform) Amendment Bill

Members, the House is in committee on the Sentencing (Reform) Amendment Bill. When we were last debating the bill, on Tuesday, 4 March, we were debating Part 1. This is the debate on clauses 3 to 16 and the Schedule. The question, again, is that Part 1 stand part.

Thank you, Madam Chair. Yeah, I wondered if across the committee, there was going to be a substantive call, but I somehow doubt it.

We were slowly going through the bill and I think, if I remember rightly, we had got to new clause 8. I want to start talking about clause 9, which is about reductions to sentencing. I had previously talked about the views of victims, but what I want to talk about now is the so-called “youth discount”. The bill, as before the committee, proposes—essentially, you only get one crack at a youth discount; that you can’t get a youth discount twice. Now, I can understand—a little bit like the remorse discount that you can also only get once under this bill—the kind of eye roll, if you like, of a judge who has someone who perhaps they’ve seen before coming before them and kind of running out the same old story. But there is actually a reason for the youth discount based in science, and that is about cognitive development. The fact that young people do not have the same decision-making capabilities as people whose brain has properly matured. And I’m concerned that there’ll be a conflation of age with mental development.

So, I guess, my question for the Minister of Justice, and I’ve actually got a tabled amendment on this, in respect of clause 9B is: is he satisfied that a judge can look at a person who is young and say that person has cognitive impairment, perhaps fetal alcohol syndrome—which is a good example where there’s significant cognitive impairment—or even just developmental delay; so they might be 21 years old, but, in fact, for whatever reason, their cognitive development is that of a 16-year-old? Now, is that cognitive delay able to be taken into account, or is that kind of tied up in this youth discount? And if the answer is, “Oh, that’s all part of the youth discount.”, then my amendment comes into play, which would put a new subsection 3 in clause 9B. And that would essentially say—the words I’ve proposed, are: “provided that this does not preclude the court from taking into account the psychological and cognitive development of the offender in the sentencing.”

Because the fact of the matter is that, you know, young people’s cognitive development has been conclusively shown to impair good decision making. I guess the irony of the “no” to two youth discounts is that you don’t stop being young. You don’t magically become more grown up once you’re sentenced and given a youth discount; you’re still suffering from the fact that your brain does not work as good as a mature brain. So my question to the Minister is: how are we going to ensure that judges are still given the ability to take into account the kind of psychological development, the cognitive development, the actual brain growth and physical growth as well as the kind of mental maturity? How are we going to be able to take those things into account when it looks like the youth discount in fact kind of sweeps that away?

I guess, the other thing about this, in terms of the discount and the youth discount, is the need for—because this is about deterrence—the offender to know that they have been given a once-only discount. Now, there is a general rule that you have sentencing notes, but, again, you’ve got a person who might not be particularly literate or particularly well equipped. What steps will be put in place so that when they are actually sentenced, they take away something which says to them, “Here you go, this is a youth discount. You only get it once.”

Of course, in many cases the courts will kind of make a mishmash decision. This requires a slicing off of youth and saying, “This is the discount for youth.” Of course, the other risk is that judges won’t give youth discounts on a first offence for the very reason that it’s a once-only thing. So I’d be interested in that, Minister.

Thank you, Madam Chair. Yes, we have returned to this particular bill. Just so I can kind of keep my thought process and work through this bill systematically as well, the last time we left this bill I was talking about clause 6, which is section 9 amended, around aggravating factors. Also just to signal to you, as well as to the Chair, that I still haven’t received a response from the Minister of Justice regarding my previous question, which is around subclause (1)(cb), including section 66(1)(b), (c), or (d), or (2) of the Crimes Act 1961 around party liability.

I asked two questions at that stage—just also to jog the Minister’s memory. One of them was: how would this work, in reference to the Ahsin v Queen case of 2014, whereby the fact that in Aotearoa currently under the Crimes Act 1961 and particularly section 66, we do not have a complete withdraw possibility when it comes to party liability, which is very clear in that Supreme Court case.

The second part of that would be that when we were looking at party liability as well, considering that we have removed the presumption whereby a person who is married—in most cases, a woman who is married to a husband—commits a crime, that they automatically get the defence of convulsion, to that effect. With that presumption being removed, there is nothing in this bill or under the Crimes Act 1961, section 66, that would allow a defence for someone who has been in long-term abusive relationships and how that would be punished both under section 66 as well as under this new aggravating factor. So just want to get clarity from the Minister on whether that has been taken into consideration when this has been decided.

The next part I want to mention that comes with the aggravating factors is one of the two aggravating factors that has been introduced as a part of this bill. Now, this is clause 6(2)(fc). Understandably, that makes a lot of sense—we’re putting public transport service workers in line with other service workers such as police and emergency and firefighters, etc. I would like to ask the Minister some questions around clause 6(2)(fd). That is to do with when one of the following happens: when the victim is working on their own or when the victim is working in a business that was physically joined to. Now, one of the things that we did explore and did actually came through as part of submissions by others was around the fact that that is already an existing aggravating factor under section 9 of the Sentencing Act. That is, from memory, 9(g), where is says “that the victim was particularly vulnerable because of his or her age or health or because of any other factor known to the offender:”, which could extend to knowing the victim was working alone or working in a business.

Now, how would the Minister reconcile with the fact that for something like that, if both aggravating factors are being considered, that would be considered a double jeopardy or a case where a person would be trialled or be punished twice for potentially the same crime? Will the judge have a level of flexibility in that case to determine whether they will apply the aggravating factor in clause 6(2)(fd) or the aggravating factor in section 9G?

So those two questions: one around party liability under section 66 and the other one around the new aggravating factor in clause 6(2)(fd).

Thank you, members, for the questions. In terms of the youth discount, the member referred to fetal alcohol syndrome and so forth, and those matters can be dealt with separately from youth. The youth discount applies to offenders aged 18 and over, and so our point of view is that they should have the potential for a discount for that youth once, not multiple times. We tend to look at it from the point of view of the victims of crime. It doesn’t really sort of matter, if you’re violently assaulted by somebody, what age they are—you are violently assaulted. So we wanted to send a clear message that we’re limiting the amount of discounts that can be applied when it comes to sentencing.

In terms of party liability, my advice is that party liability is determined at the conviction stage, not in sentencing.

I’m going to take a call from Dr Tracey McLellan, but at this point I’m just going to say I’ve still got the notes from when I was in the Chair last time, and we don’t want to be going over things that’ve already been mentioned, so I want new material only at this point in time. Thank you.

Thank you, Madam Chair, but due to the Minister of Justice’s answer right there—I had a different question but given the Minister’s response right there—it has prompted me to ask a further question about this subject—

CHAIRPERSON (Barbara Kuriger): That’s fine.

Dr TRACEY McLELLAN: —so I’d like a little bit of indulgence and I’ll try not to be too long.

CHAIRPERSON (Barbara Kuriger): No, that’s fine.

Dr TRACEY McLELLAN: I think the concept of youth discounts as a mitigating factor when sentencing—the age of a person—is actually really important. It’s certainly one of the topics that we’ve, on this side of the Chamber, undoubtedly, received the most feedback on when people try and get their head around what it is this Government’s trying to achieve. Even from a philosophical perspective, when you think about what is the purpose of the law and what is the purpose of sentencing, you’ve got two very opposing—and sometimes in stark contrast—aims. That is, to respect the needs of the victim; as the Minister has just said, if you’re assaulted by someone, regardless of their age, you still feel the need to have that vindication through a legal process. But the other purpose of the law and justice and sentencing is to prevent stuff from happening in the future, to prevent it from feeding into a cycle by taking all the opportunities that you have available to you to try and essentially knock that on the head.

As my colleague the Hon Dr Duncan Webb said, the concept of youth and maturation and development is actually really, really important. I understand that it doesn’t necessarily matter to the person who has a right to feel that they’ve received justice via a sentence or a harsh sentence on the person that perpetrated that crime against them, but it is something that as a society we should be rightly invested in because for no other reason than if we don’t get this right, then we do create a cycle of just more and more offending, which by definition creates more and more victims of the same crimes that we’re trying to lessen the impact on people.

So the question I had specifically for the Minister was something that was raised when we think about maybe or maybe not judges choosing to use the youth factor as a mitigating factor in sentencing. They may not choose to do it in the first instance, given that they know it’s only a one-off—an arbitrarily decided one-off according to this bill, regardless of the science and the sensibilities around that. So has the Minister or has his team looked at what those unintended consequences could be in those circumstances? Because nipping something in the bud at a young person’s first appearance and therefore opportunity to provide some sort of corrective direction via a sentence—if that’s not taken on board and the judge says, “Well, actually, I’ll keep that up the sleeve because there’s a chance that this person may be back before this court in the next year or two and we want to be able to use that factor.”, what sort of work has been done on looking on that?

Also, if we are to consider this strictly—and it’s a long bow—as a signal and as a deterrent, even though we know that most people that commit crimes don’t fully cognitively go into it, weighing up all the consequences of getting caught etc., etc., it’s about addressing the drivers of crime and making a fair and just system so that people don’t feel it’s overly punitive and therefore rebel against the very society that we’re hoping them to be part of. But if we consider this as being a signal and a deterrent I just feel like there’s been very scant information to date about weighing up with metrics and analyses what those impacts could be. I’m sure that the Minister would have gone into more detail and would be privy, probably, to more of that information.

I just think it’s really important, given that this is the stage that this bill is at the Chamber today; that we have an opportunity just to hear a little bit more about this really, really important issue, before we move on. And I understand that we will move on but, as I said, lots of people have provided feedback about this. This is the one thing in this bill that really seems to exercise people because for most humans and for most people therefore but go anybody; we were all young, we all know that silly things can happen, we all know that youth and the maturation of the brain, and the neurocognitive development of people is a real thing, and we just want to know that this Government has taken that into account, rather than potentially making things worse in the years to come because they haven’t sufficiently taken it into account.

I move, That debate on this question now close.

I’ll take a call from the Hon Dr Duncan Webb, but I feel that we have had a fair proportion—not this morning but over time, on this—and I’m ticking off the questions as they’ve been answered. So I’ll give Dr Webb a chance to ask some more relevant questions.

OK, well—and I’m aware that my colleague Ginny Andersen hasn’t had a call today or indeed a great number of calls on this previous—

CHAIRPERSON (Barbara Kuriger): Just on that point, it makes it difficult when we traverse a committee of the whole House stage over two sitting blocks where we have traversed a lot of conversations, and people who then come into the committee now are sort of in a phase where we’ve got to be careful not to relitigate.

Hon Dr DUNCAN WEBB: I actually appreciate that.

CHAIRPERSON (Barbara Kuriger): Great. And so can I ask the Clerk to start Dr Webb’s questions again so that I give you the maximum amount of questions that you can have in this call. Thank you.

Hon Dr DUNCAN WEBB: OK, thank you for that.

One of the things I’m interested in is the question of prosecutorial conduct, because there can be situations where prosecutors either, in the worst cases, are intentionally late or obstruct the provision of evidence; or, much more likely, unintentionally do that. One of the problems with cap reductions is it reduces the ability to respond to that kind of misconduct.

A tabled amendment I haven’t talked about yet is in respect of new section 9G and it’s really, again, about late pleas. Where there is a late plea—for example, to give you the most concrete kind of example: the police don’t provide a critical document which is incriminating and, perhaps entirely without fault, a witness comes forward at the last minute and says, “Look, I’ve got this document and it is conclusive.” So the plea is essentially a “steps of the court” plea. Now, that is not the defendant’s fault. The defendant and their legal counsel assessed the matter on the basis of the disclosure that was given to them. Now, I accept that the victim has not had the benefit of an early plea—kind of the first opportunity—but I guess the point is this: the first real opportunity, the first informed opportunity, and the first opportunity where the police had presented all of the evidence to be put in court is on the doorstep of the court.

My proposed tabled amendment would add to section 9G a subsection (5) that would read, provided that where any late plea “can be attributed in whole, or part to failures or misconduct”—and I think failures is important—“of the prosecutor or the prosecuting authority, then the judge may impose such maximum reduction as he or she considers appropriate in all of the circumstances not exceeding 25 percent.” I mean, I don’t like that 25 percent, but that’s the maximum cap this legislation imposes. I’m particularly interested in how we factor in these other cases where the lateness of the plea is due to other circumstances. Of course, I’ve previously spoken to extremely complex legal cases—a fraud case where whether something is a fraud or not can be very, very hard to understand. So I’m interested in that.

I guess this relates also to the whole question of manifest injustice, because I think the Minister of Justice, when I’ve raised a different issue, has kind of bashed it away with, “Oh, yes, but manifest injustice sorts that out.” But manifest injustice is actually—you know, manifest injustice is injustice which is really bad. You can have injustice which apparently is not manifest, and my point is with a late plea due to prosecutorial misconduct, that is unjust.

Now, to say that “If it’s a bit unjust, we’ll get away with it” is really bad legislative process. So how are we going to make sure that the sentence imposed on an offender who’s given documents at the last minute is not unjust? And will you adopt that tabled amendment which would make sure that prosecutorial misconduct can be taken into account to get a just outcome?

Thank you, Madam Chair—yes, that was me. Awesome to take just a short call on this, and I don’t want to repeat what anybody else has—taking your point in regard to that. But, Minister Goldsmith, if you can just—the mitigating factors in Part 1 of this particular bill. I’m fathomed, because this is exactly what the cultural reports did for Māori in the system, and we know that Māori are overrepresented in the justice system. We know that we make up 50 percent of the male prison population, 67 percent of the female prison population. We’re five times more likely to be sentenced than Pākehā for the same crime. So the mitigating circumstances for Māori families must be taken into consideration, and I just want to take into consideration as to why the cultural reports were declined by this particular Government, in this particular Parliament—absolutely fathoms me, because it did the same thing, but what it did allow was for lawyers and for judges to make their decisions when it comes to sentencing, based on those cultural reports.

I see this as similar but not the same, right—but not the same. What this tells me is that mitigating circumstances for non-Māori will be a lot easier because there’s no focus on those particular things. We know that Māori youth also have higher—and are more disproportionately targeted in that particular phase.

I just want to pick up on what Dr Duncan talked about not so long ago: the mitigating factors as to why our youth are in that particular predicament in the first place. I look at the complex, interrelated challenges that many of our rangatahi face. Across the Youth Court population, there are higher rates of neurodisabilities, fetal alcohol spectrum disorder, traumatic brain injury, dyslexia, autism spectrum disorder, exposure to family violence, dislocation from schooling, and the history of trauma, and what are these mitigating factors—consider any of those things when sentencing is applied to young Māori, who will then make up the 50 percent of the male prison population or the 67 percent of the female prison population.

So does this bill, in Part 1, ease the pain of Māori making up that particular amount in terms of the population incarcerated by the justice system? Those are the questions I have. Does this bill ease the pain for Māori in those percentages, and does it consider what the cultural reports were there to ensure, which I think you’re trying to do here but it actually doesn’t go that far to ensure that those cultural reports—because that’s the cultural part of it, right? Yes, there are mitigating factors in terms of some of the disabilities that maybe some of these kids and some of their parents and some of their adults have, but what it doesn’t do is actually look at the cultural background, the intergenerational trauma and all those types of things that a cultural report would’ve done. Could you answer those, please, Minister?

In response to the previous speaker, Rawiri Waititi, it is my hope that this bill will ease the pain, particularly for Māori victims of crime. Yes, Māori are overrepresented in the prison population. They are also overrepresented amongst the victims of crime and have a real interest in seeing that justice is done and that part of the justice response is real consequences for crime. Of course, the sentencing framework is only one part of the justice response, and, yes, we’ve got a real focus on rehabilitation and a real focus on dealing with those drivers of crime that the member referred to, like not being in school. So we’ve got a real focus on truancy to help deal with some of those drivers of crime at the same time. So absolutely that is the desire.

In terms of the cultural reports, what this Government did was stop the cottage industry that developed around the writing of those reports but the Sentencing Act still, obviously, provides the opportunity for the background of the offender to be taken into account. What this bill does is put a limit on the total discounts that can be applied.

Finally, in relation to Mr Duncan Webb’s references around prosecutorial misconduct, that is excluded from the 40 percent cap as it’s not a personal factor.

I move, That debate on this question now close.

Now we have quite a number of votes to be taken on Part 1, so I’m just going to give the Clerk the opportunity, as she’s just arrived, to get her paperwork in place.

The question is that Dr Lawrence Xu-Nan’s amendments to Amendment Paper 244 set out on Amendment Paper 250 be agreed to.

The question is that Dr Lawrence Xu-Nan’s amendments to Amendment Paper 244 set out on Amendment Paper 253 be agreed to.

The question is that the Minister’s amendments to Part 1 set out on Amendment Paper 244 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 5 be agreed to.

The question is that Helen White’s tabled amendment to clause 5, inserting two new subparagraphs into new section 8(f) be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 5A be agreed to.

The question is that Dr Lawrence Xu-Nan’s amendments to clauses 5A and 7 set out on Amendment Paper 249 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to insert new clause 5B and, in clause 7, to delete new sections 9C, 9L, and 9P be agreed to.

The question is that Dr Lawrence Xu-Nan’s amendment to delete clause 6(1) set out on Amendment Paper 252 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 6, deleting new paragraph (cb) in section 9(1), be agreed to.

The question is that Dr Lawrence Xu-Nan’s amendments to clause 6, inserting paragraph (cd) into new section 9(1) and deleting the crossheading above clause 6(1), be agreed to.

Dr Lawrence Xu-Nan’s tabled amendment to clause 6, deleting new paragraph (fd) in section 9(1), is ruled out of order as being inconsistent with a previous decision of the committee.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to delete clause 6(2B) be agreed to.

The question is that Dr Tracey McLellan’s tabled amendment to clause 7, inserting subsection (2A) into new section 9B, be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7, new section 9E, be agreed to.

Dr Lawrence Xu-Nan’s tabled amendment to clause 7, deleting new sections 9EA and 9NA, is ruled out of order as being inconsistent with a previous decision of the committee.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7, inserting subsection (3) into new section 9EA, be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendments to clause 7, deleting new sections 9G, 9H, and 9I, be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7, inserting subsection (1A) into new section 9G, be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7, inserting subsection (1B) into new section 9G, be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7, inserting subsection (1C) into new section 9G be agreed to.

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