Sentencing (Reform) Amendment Bill

Members, the House is in committee on the Sentencing (Reform) Amendment Bill. We come first to Part 1. This is the debate on clauses 3 to 16, “Amendments to the Sentencing Act 2002”, and the Schedule. The question is that Part 1 stand part.

Thank you, Madam Chair. Just signalling—to Madam Chair as well—that I’ve got a number of amendments to this particular bill but also that the bill has the potential to be quite complex in terms of the ramifications of the relationship with both the Sentencing Act and also the Crimes Act, and also in terms of the wider scope of the aggravating and mitigating factor—which, granted, is some of the bedrock of our Sentencing Act and our sentencing procedures in Aotearoa. I’m just signalling to the Chair that we will be going through section by section.

I want to start by asking the Minister—starting with clause 4, section 4 amended, in terms of interpretation. This is specifically in reference to the remorse mitigating factors. Now, understanding we’ve had some discussions around this and some clarifications around this during the committee stage—and we can see this amendment that’s been done as part of the select committee stage—I’m curious in terms of the remorse mitigating factors and particularly with (b) excluding “anything described in section 10”. I want to check with the Minister whether either the Minister or any of the officials have done any form of modelling around what the possibilities are of it punishing people on a lower socio-economic status more than people on a higher economic and social status.

I’m sure the Minister is aware, in section 10 of the Sentencing Act, it is to do with expressions of remorse, which could be both in terms of actions and also in terms of finance or in terms of, I guess, other forms of financial reparation. So, I guess—excluding section 10 as part of the 40 percent cap—would the Minister consider, or could the Minister provide clarification on, whether that could be a possibility that people who could afford to pay the victim are able to, essentially, get a higher percentage of discount than people who do not have access to that particular source? Thank you.

Thank you, Madam Chair. I’m interested in the Minister’s comments on the kind of underpinning policy of this Act. I’m aware that, in terms of sentencing principles in the Act, the Minister has suggested an Amendment Paper—and, in particular, an Amendment Paper which sees an additional aggravating factor as posting online. That’s clause 5A, which replaces, I think, section 9A of the principal Act.

I’m just interested in his views. Whilst in fact that’s probably unobjectionable—which is a rare thing from this Minister, but there you go—I’m interested in his views of what other factors should be taken into account given this Government’s so-called victim-centric approach. I know there’s an Amendment Paper on the Table that my colleague will speak to, I’m sure, but in terms of placing greater weight on the views of victims, I’d be interested in his views on that. That’s clause 5 of the bill. I’d be interested in his views there.

I’d like to know from the Minister about the issue of the guilty plea, because I can see a statement that is about these actual discounts—things like guilty pleas and youth pleas—and a kind of attempt to make a hard and fast rule in those situations.

Now, my experience with people who are young is that they’re actually developing so much that you might get a remorseful plea at a later time in their maturity that means a lot more than the one that happened before. My understanding is, under this new rule, the judge’s discretion to look at the person before them and to think “That person there has developed some common sense, some true remorse, and has appreciated what they’ve done” may actually be constrained in terms of finding an appropriate pathway for that person. I’m very interested in those particular things. We’ve got a guilty plea discount. We’ve got a youth discount. Are those factors sufficiently flexible in this situation?

Now, I do understand that there is absolutely a scepticism when people continually say they’re sorry and demonstrate remorse, but there’s also the real thing. I would like to know, from the Minister, what flexibility has been built into the system when a judge—who, after all, we pay a lot of money because they’ve been there around the block a few times and they’ve seen this—sees somebody in front of them who is perhaps young—perhaps they’re not young; there are other reasons. For example, they may have had real issues with addiction which they have overcome. They’re seeing someone who for some reason has come through a crisis—and the crisis may have contained offending, which is not an excuse; it’s just a reality—and they’re in that position there where they actually—that’s when remorse matters; that’s when their age matters, etc.

I’d like to know from the Minister: what is the story with that? How are they going to have sufficient flexibility for us not to have an unjust and just stupid outcome—just a silly, damaging outcome—to both the victim and to the perpetrator?

Thank you, Madam Chair. While the Minister seeks some advice to my earlier question, I think this is something that I want to pick up on—what the Hon Dr Duncan Webb has mentioned in terms of the Minister’s Amendment Paper 224. I have a number of questions to this Amendment Paper.

I guess the first thing is—understanding that this Amendment Paper is in response to the abuse in State care and faith-based care report—I wanted to check with the Minister what the reason was behind the Amendment Paper coming to the House so late, when my understanding is it was brought to Cabinet in November 2024, and in terms of what some of the recommendations are. The thing is, if the Minister had brought it to Cabinet early in November, we actually could have incorporated the Amendment Paper as part of our discussion in select committee, and there might have been opportunities for people to be able to submit on that. I wanted to know: is there a rationale behind why this Amendment Paper was introduced so late?

I guess the second part, in terms of the delay in terms of this Amendment Paper as well, is whether the Minister has sought advice from the office of the Attorney-General, as all Amendment Papers should. One of the things I am interested in, and also have observed repeatedly, is that, particularly within the justice portfolio, there has been a reoccurring habit of Ministers introducing Amendment Papers during or just before the committee stage without going through the select committee process. I would like to know what sort of recommendations, or what sort of clarifications, the Minister’s able to provide on having to do that over and over. We’ve seen that with the Gangs Legislation Amendment Bill, we’ve seen that with the three-strikes legislation, and we’re now seeing that with this bill as well, where a kind of reasonably substantial Amendment Paper is dropped sort of last minute. That’s my second question.

My third question is around the rationale behind why the Minister decided to only take up two of the recommendations from this abuse in State care report and not the third one around potentially considering the mitigating factors—sorry, not in terms of mitigating factors but taking past convictions or convictions as a result of the abuse in State care into consideration when we’re looking at section 9(1)(j) of the Sentencing Act, because that was something that was in the recommendations. My understanding from the Minister is that that would be hard to implement, but also, at the same time, with what we’re seeing as a lack of emphasis and priority being placed on cultural reports, how would the Minister ensure that, if the Minister doesn’t take that particular recommendation on board—citing that it’s already existing in the current legislation or it’s going to provide additional complexity? How will we be able to have the confidence that that particular recommendation from that report will be taken on board and that for people who are convicted or have previous convictions as a result of their abuse in State care, their voices will be listened to as part of their aggravating factors being applied under section 9(1)(j)?

Those are my three questions. The first one is: if this was brought to Cabinet in November 2024, was there a reason why the Amendment Paper itself was brought so late to the House and didn’t get a chance for public to submit or have a say on it? Has the Minister sought advice from the Attorney-General on this particular Amendment Paper—because we are seeing that worrying trend of substantial Amendment Papers being dropped just before or even during committee stage. Finally, the rationale behind not taking up the third recommendation from the abuse in State care and faith-based care recommendations—how is the Minister going to address the fact that we are not seeing that emphasis being placed on cultural reports? What effect would that have in terms of the Minister not including that recommendation?

Look, I want to start by thanking members for their questions. This is an important part of the legislative process—that we work our way through the proposed legislation.

For people tuning in to this debate, the broader issue is that Parliament, generally, when it comes to sentencing laws, sets a maximum sentence, whether it’s for murder or for aggravated assault or various other things in the Crimes Act. Then judges in New Zealand have discretion beneath that maximum; there is a kind of rule of thumb as a starting point, which is often guided by Court of Appeal decisions. Then judges have been in the habit of listing a number of discounts applied to that starting point to get to the final sentence.

That’s how the system works. It’s not set in stone that it has to work that way, and people will say, “Well, Parliament shouldn’t interfere with the independence of judges.” It’s perfectly within the realms of possibility that the Parliament, instead of having maximum sentences, could have minimum sentences, or they could have compulsory sentences; Parliament could do any approach that it likes. All around the world people have different approaches. The feedback and the concern that we’ve had across the community is that there has been an excessive use of discounts in recent times.

I don’t refer to any particular cases, because that’s definitely for the courts to decide, but, overall, in sentencing policy, this Government wants to send a clearer message that we want to have real consequences for crime. We’re not comfortable with very significant discounts applied, so that people are convicted of serious crimes and then, through a series of discounts, end up with home detention or something like that, in particular circumstances. That’s why we’ve brought in this legislation, which ultimately limits the ability of judges to have discounts of more than 40 percent.

People tuning in will say, “Well, 40 percent, that’s quite a lot. Why are we allowing that much discretion?” Of course, an important part of that is recognising the guilty plea, and, for the functioning of the courts, the best thing we can do for victims of crime, other than doing everything we can to avoid them being victims of crime in the first place, is to at least be able to deliver timely justice and not have the court process dragging out for years and years, re-traumatising victims. A guilty plea, which avoids all that process and deals with the situation in a faster manner, is a good thing and is something that should be acknowledged within the sentencing, and so that—up to 25 percent—is important.

One of the most important things we’re doing in this legislation, though, is recognising that that full discount shouldn’t be offered if people wait till the very last minute—to the morning of the case—to plead guilty, because that still creates an enormous amount of stress for the system and the victims, and so there should be a sliding scale. If you plead guilty at the first opportunity, yes, you get a significant discount; if it’s later in the time, you get a less significant one.

Now, just quickly addressing some of the issues raised by our friend from the Greens in terms of Amendment Papers being delivered late in the process: yes, this is an extremely busy Government. We’ve got a lot on our legislative agenda—a lot going on—and the blockage in the pipeline to getting even more done is working our way through all the pieces of legislation and the policy advice. Sometimes, in an imperfect world, we have an opportunity with a piece of legislation before the House on a particular topic to add a couple of things to it, and we take that opportunity rather than starting a whole new process with a separate piece of legislation.

When it came to some of the recommendations of the royal commission, in terms of State abuse, we saw that as an opportunity to introduce an amendment, recognising one of the recommendations there. Now, we didn’t take all the recommendations. In terms of recognising the background of people who have been in State care independently, we think there are many opportunities within the existing law for judges to recognise the background circumstances of the perpetrators of crime, and so we didn’t think any additional reference was required in that regard.

Thank you, Madam Chair. Look, we accept that it is open to the Government to signal penalties in a particular way. If it’s the view of this Government—and it clearly is—that the judges have been perhaps a little light, then it’s certainly part of our democratic process that that can be done, even though, on this side of the House, we might not agree with everything there. In doing this, Minister, there is a risk that you’re introducing a whole lot of new concepts and approaches, which is quite disruptive to the sentencing process. Throughout this committee stage, I’m keen to just explore some of that.

Whilst you’ve given a policy overview of the approach, I’m keen to kind of dig down. One of the brand new concepts that this bill I think almost by accident has introduced is a distinction between a mitigating factor of the circumstances of the offence and a personal mitigating factor. You’ve got this brand new definition in section 4, which sets out a personal mitigating factor. I’ll come to starting points later. This is critical to the sentencing process because the discounts that are limited by your reforms are limited in respect of personal mitigating factors.

You’ve got a crime which is committed, and it might be a serious premeditated assault on an unsuspecting person. Now, they’re not personal. What a personal mitigating factor appears to be is factors about the offender which can be taken into account in lowering the sentence, so it might be youth; it might be mental impairment. Whether they pleaded guilty is another one there that’s listed. One of the problems is you get a degree of uncertainty. You go to replacement section 4(a)(vi), inserted by clause 4, “any evidence of the offender’s previous good character”, and then paragraph (b), “a mitigating factor under section 9(4)(a)”—which is itself open-ended—“that the court considers is personal to the offender”.

This is very relevant. The Government’s intention is Parliament’s intention. In having a personal mitigating factor, exactly what is meant by it? What isn’t a personal mitigating factor? The fact the offender was responding to a threat or physical assault him or herself, is that a personal mitigating factor, or is that a factor about the offence itself? The fact that the person was hungry and stole food, is that a personal mitigating factor, or is that just a factor about the circumstances of the offence? This is actually a critical point.

Now, whilst a shoplifting offence probably isn’t going to raise too many issues, when we get into issues of a murder, there is the old provocation offence, where someone is so incensed with a set of circumstances they find that they react in an angry and uncontrolled manner. That is a factor of the offence that the judge can take into account. I guess I’m asking you, Minister, a factor like that, is that a personal mitigating factor, which is capped in terms of what can be taken into account, or is it a circumstance about the offence, which is not capped and where the judge can address the starting point of the sentencing process? That’s a critical point that I think really requires your clarification.

Thank you, Madam Chair. I just want to say that the Hon Dr Duncan Webb has raised a lot of really, really important points. Because, again, let’s not forget that, from a criminal law perspective, the interaction between the Crimes Act 1961 and the Sentencing Act 2002 forms the very foundation of our criminal law system. In terms of getting these sorts of clarifications from the Minister, it’s absolutely crucial in guiding the way that we do look at criminal law cases going forward.

Now, I just want to pick up on something the Minister said before—and a thankyou to the Minister for providing both the background but also answers to some of my questions. There are two things I want to pick up on first that the Minister said. The first one is that the Government has a lot of bills to get through and gives the impression that if an Amendment Paper is late, it’s late, but I just also want to raise the same concern and warning that the Attorney-General has raised last year in terms of speeding through legislation without proper consultation and proper view.

I think the other thing that I asked the Minister specifically regarding not taking on the third recommendation from the report of abuse in State care and faith-based care is around the fact that if the existing section 9(1)(j) of the Sentencing Act is already sufficient, how would we address the general concern that communities—and particularly victims of abuse in State care and faith-based care—have around the defunding and also the lack of prioritisation being placed on section 27 cultural reports? My question was specifically on the weight of section 27 reports that is going to be placed on the existing section 9(1)(j), from the Minister’s perspective.

Now, going on to what the Minister mentioned before in terms of the broader discount concern, and I hear from the Minister that there are concerns about the fact that people might perceive that the way that we discount is potentially loose or potentially too weak, but I wanted to check from the Minister, because during the select committee stage, we heard from legal experts who are in these areas—and not just the New Zealand Law Society but also Community Law and other aspects and facets of law and the legal profession; people who work in this field and are experts within this field. I want to check with the Minister: how has the Minister consulted with experts in the field, and do they share the same concern that the Minister’s just expressed in terms of discount concerns?

Based on the departmental report, it doesn’t seem like the legal profession experts in this field share that same concern. Judging by what is present in terms of both the regulatory impact statement and the supplementary analysis, we are seeing that the limitations being placed and the narrow scope of the bill meant that officials couldn’t actually consult more widely. In fact, in the supplementary report that was mentioned specifically on the two new aggravating factors that were mentioned, there is the fact that the ministry has been unable to assess the potential impact the inclusion of the aggravating factors could have on sentencing. Had officials had time, they would have done X, Y, and Z.

I want to check with the Minister: who are these people who expressed concerns about the fact that the current discount is too high?

Well, obviously there’s a wide range of opinions across society around sentencing law. For example, when we went to see members of the Sandringham Business Association in Auckland and people operating in the retail space, on many, many occasions it has been expressed to me the deep frustration of people who are just trying to make a living running a business or a dairy or any kind of retail business and find that they’re being attacked physically, and then, if someone is finally actually held to account and convicted in a court, reading the very long list of discounts offered so that the sentence ends up—and it’s always a question of judgment, but they feel it is—very far removed certainly from the maximum sentence, and maybe a home detention or some such outcome for a violent assault. There have been many, many people who have been concerned about the message that society is sending in terms of the seriousness of the consequences for convictions.

Now, obviously it’s not the role of Parliament or the executive to critique or to interfere with individual cases and individual judgments made by the court, and I don’t do that, but it is very much the appropriate space for Parliament and the Government of the day to consider the messages that it sends in the Sentencing Act. The primary message that we’re wanting to send through this legislation is that Parliament wants to see a more judicious approach taken to discounts. We don’t want to see repeated discounts offered for remorse. You can be remorseful, of course. Everybody understands that people can be remorseful, but we’re not so convinced if it is many times. You can get a discount for being young, but not many times.

I think, frankly, one of the things that’s been of interest to people has been the recent reporting of many court cases in the open justice media approach that’s been taken over the past few years, and people have seen many instances where significant discounts of sometimes up to 60 or 70 percent on the starting point have been offered. There’s been widespread public concern. If I think back to the election of late 2023, the number one issue that was consistently raised on the doorsteps was the cost of living and people concerned about that, but a fairly consistent number two, particularly in Auckland and Waikato and—

Rima Nakhle: Takanini.

Hon PAUL GOLDSMITH: Takanini—certainly in Takanini—was real concern around law and order in the community, and people wanting to see a stronger message.

There’s a philosophical thing that comes into it, and we had a sense that the previous administration did offer up a lot of excuses for crime and a culture of excuses for criminal behaviour. We wanted to send a message that was much more focused on the needs of the victims of crime, and the sentencing element, of course, is only one part of that. We have to locate that in the broader context: sending a clear message, holding people to account, and taking those worst serious repeat offenders out of circulation for longer is part of the response. An equally important part of the response is better rehabilitation and dealing with the long-term drivers of crime, and the Government’s equally interested in that.

When it comes to the broader justice response, the sentencing element is one element of it, but it’s not the total response, because I think everybody in this House recognises the importance of dealing with some of the broader long-term social issues that we face as a country.

Thank you, Madam Chair—I know I beat my colleague Tracey McLellan to her feet there. Look—

CHAIRPERSON (Barbara Kuriger): Sorry, I didn’t see you. You might have to call louder.

Hon Dr DUNCAN WEBB: The Minister of Justice has given a couple of good speeches on sentencing policy from the Government’s perspective, but he hasn’t answered some of the really detailed questions.

My earlier question was in respect of personal mitigating factors, and I gave him some examples, but the critical one was: is a degree of lack of control due to being taunted, for example—or provoked, to use the old language—a personal mitigating factor, or is it a mitigating factor that goes to the overall offence? Is it a mitigating factor that can be discounted only to 40 percent, or is it one which goes to starting point, which apparently can be discounted without limit. That’s really important. Great policy speak, but, Minister, we’d really appreciate it if you could answer the really detailed questions that are appropriate in a committee stage.

My next question is about remorse. And I get it, right? The judges already are sceptical of repeated cases of “I’m sorry. I’m terribly remorseful about this.”, and rightly so. This Government said you can only play the remorse card once. I can understand what’s behind that, but we’ve got a tricky situation, because, on the one hand, you’re like, “We don’t believe you’re sorry enough to give you a discount.”, but on the other hand, we don’t want to disadvantage victims.

This is in clause 4, which amends the interpretation section and talks about what a “remorse mitigating factor” is. It identifies the mitigating factor in section 9(2)(f), which identifies remorse, but it excludes anything described in section 10. It’s that distinction which is important, Minister, because the section 10 distinction is people who show they’re sorry, not by saying it but by doing something. This runs into a problem because, if you’re Whittall from Pike River and you’ve got $4 million of insurance to show you’re sorry, then all of a sudden that can become very helpful indeed, but if you don’t have means and you can’t show in a tangible way how sorry you are by an offer of compensation, and you’re not equipped to go and rebuild the fence that you smashed down, or whatever it might be, then it doesn’t matter how sorry you are.

One of the questions I have in terms of this section 10 provision is: what space is there for people who can’t make financial recompense? It looks dangerously like you get a discount for paying to be sorry, but not a discount where you can’t pay for being sorry. That’s deeply problematic because we don’t want justice that you can buy and sell. Please explain in respect of saying, “No, we don’t believe you’re sorry if you say sorry twice, but we will believe you’re sorry if you’ll pay for being sorry twice.”—that’s actually a deep policy question about who the justice system serves and whether it is tilted in favour of people who have money, and against those who don’t.

Referring to my earlier question about provocation, I would really like an answer on that, and I’m sure there’ll be courts later down the track that would like an answer on that. Secondly, what are we doing about people being able buy their remorse discount?

In terms of the personal mitigating factors which are included in the cap, they are things such as the age of the offender or whether they pleaded guilty, whether the offender has taken steps during proceedings to shorten the proceedings or reduce their cost, evidence of the offender’s good character—those elements. Some of the things that are not included in the cap, because they’re not relating to the personal circumstances, are things such as the offender having spent time on bail with an electronic monitoring (EM) condition, as defined in section 3.

That would be one example. Another one would be any adverse effect on the offender of a delay in the disposition caused by a failure by the prosecution’s part. That would be another thing where that wouldn’t have to be included in the cap. The conduct of the victim is not included in the cap, and that’s an element there. There is a range of things that we’ve included in and excluded from the cap, particularly things, like I say, such as time already served on EM bail.

Thank you, Madam Chair. I must say that answer from the Minister isn’t totally satisfactory, because my colleague the Hon Dr Duncan Webb has just said, and given several examples to highlight the fact, that it’s actually a deep and heavy kind of policy question and one that requires a requisite amount of analysis, let alone familiarity. I think, certainly, my other colleagues have mentioned the fact that this is the stage where we need to have those answers, in terms of what was the rationale, what was the thinking behind it.

When we look at this section and, as other people have said, the very deliberate parcelling out of mitigating factors relating to the offence versus relating to the person—which, by definition, is deeply personal, and therefore, by further definition, is undoubtedly complex because people are complex—the Minister’s account of that, notwithstanding the fact that we still haven’t heard anything specific or concrete about provocation, doesn’t really feel as if it’s as weighty as what one would imagine answers to be.

The Minister in his previous response and his contribution talked a lot and spent the majority of his time mentioning messaging and sending messages. This isn’t simple PR; this is a piece of legislation that has potentially quite profound effects on actual people. Whilst I appreciate the Government’s intentionality, or rather their basic intention to signal to people that somehow this Government is tough on crime or is going to be tough on crime and do things to be tougher on crime, this doesn’t really feel like a very nuanced or a very well-thought-out example of doing that, mainly because, as colleagues have pointed out, there seem to be several holes, several inconsistencies, and we’re just trying to get to grips with what ties those things together to make a little bit of a more cogent theory behind what is happening.

Now, if we look, as others have, at the remorse and the age angles, in particular, as personal mitigating factors—and I trust that the Minister will endeavour to answer a little bit more fully those questions that have already been asked. The one “that the offender has taken steps during the proceedings (other than steps to comply with procedural requirements) to shorten the proceedings or reduce their cost” is a very specific example that’s not terribly personal, that the Minister might like to just provide a little bit more information about in terms of, as a rather dry clause, what the thinking was behind that.

I also note that, as I said, whilst the Minister has said on numerous occasions that this mainly and primarily is about signalling and sending messages, in terms of how that, then, interacts—because crime isn’t linear; it’s cyclical, as we all know. He mentioned rehabilitation and sentencing and only being one tool in the tool box, so to speak, and, therefore, rehabilitation and various other factors impact that crime cycle, but he didn’t really mention anything to do with drivers of crime and how these measures in here, in relation to these personal mitigating factors—and if they’re not able to be given the weight that they should be or they’re not being able to be used as they could be as part of that breaking the cycle of crime or that readiness for future rehabilitation, should that involve sentencing that lends itself to that.

Can the Minister quite specifically look at section 4(a)(v), and I just want to know a little bit more about what the specifics are around shortening the proceedings or reducing their cost, whilst we’re waiting on, perhaps, the Minister to take some further advice around provocation and some more advice around just providing a little bit more fulsome answers in relation to remorse and age and how those things interact or not in this process.

Thank you, Madam Chair. While the Minister of Justice ponders Dr Tracey McLellan’s questions, I just want to throw a few more questions to the Minister. Again, we are looking at something that’s partly getting into the nitty-gritty of the bill itself. The Minister has expressed some of the policy intent, which would also need to be questioned, as well as some of the fundamental elements of statutory interpretation of the bill itself.

I think the first thing I want to pick up on was what the Minister mentioned before. I think it is absolutely crucial that when we do look at bills like this and we look at sentencing, victims’ voices are placed in a position and they are taken into consideration, and from our perspective, you know, that’s one of the fundamental requirements when it comes to restorative justice.

However, when we’re looking at clause 5—I guess a clarification, because the current section 8(f) of the Sentencing Act already has elements that talk about taking into consideration the victim as part of the sentencing, but this particular bill does clarify and divide that into two separate elements. We’re looking at new section 8(f)(ii) “concerning the interests of the victim”. Now, the Minister has mentioned before that when we’re looking at the people that the Minister has spoken to, which—the Minister didn’t mention any particular legal bodies or lawyers around that, other than businesses and local community, which, arguably, is incredibly important in the context when we’re looking at this bill.

One of the things we did see that’s been submitted on is that when we do take the victims’ interest into consideration, it should be one that is restorative in nature and not punitive in nature. One of the submitters from community law does mention whether the wording will allow victims to seek a particular and vengeful punishment for the offender and make, actually, things worse for both parties.

I wondered, first of all, if the Minister would consider my Amendment Paper which inserts the new word “restorative” as part of that considering of the restorative interest of the victim, just so that there are clarifications that we’re not seeing the mentality of an eye for an eye, which, let’s be honest, unless the Minister has data that could shed light otherwise, is not something that’s beneficial to anyone. That’s my first question, around clause 5.

My second question is around clause 6. I’m going to first ask a question from the context of statutory interpretation. Now, in this bill, we’ve introduced a new cross-heading, which is new section 9(1AAA), just above clause 6(1), that, basically, talks about adult offenders actually committing, etc., but this will sit above, presumably, section 9(1).

The problem with that is that, if you’re looking at it from the context of statutory interpretation when it comes to aggravating factors, section 9(1) is empowered by the heading—let me just quickly find it—that “In sentencing or otherwise dealing with offender the court must take into [consideration] the following aggravating factors to the extent that they are applicable in the case:”. By putting a cross-heading above that, I’m not entirely sure what the Minister wants to do with that. Is that something the court should consider? Is that applicable to the entirety of section 9(1)? Is that just for the purpose of this bill? Either of those could be possible, so I would be grateful for some clarification from the Minister.

On top of that, it specifically used the term “adult”. Now, “adult” is not defined in any part of this bill, nor is it defined in the Sentencing Act, so it will also be important for the Minister to define: what does the Minister consider “adult” to be? That actually is a clarification that’s important. It could be as simple as 18 years and over, or 25 years and over—that’s perfectly reasonable—but the clarification is needed.

I do have more questions for the Minister on clause 6, but I’ll wait to hear from the Minister on my current questions first.

The member raised a multitude of points on that, and I’ll pick up on one in relation to the message being sent through sentencing.

He’s referred to the possible interest in punitive responses and also a focus on rehabilitation in sentencing and a desire to—

Dr Lawrence Xu-Nan: Restorative.

Hon PAUL GOLDSMITH: —and of restorative intent. Both of those are important. I think that the other element that we sometimes lose sight of is that one of the purposes of the Sentencing Act is for society to denounce the act that’s carried out. There have been cases, many examples, of people who were convicted of very serious crimes, such as raping multiple people, ending up with very short prison sentences or, indeed, no prison sentences, and time on home detention. From a victim’s point of view, there is a reasonable question of doubt as to whether that outcome—and we all know the difficulties of achieving convictions in such cases and all the pressure on the victim and the horror of that process, to go through all that and the consequences to be what some people would regard as very lenient. There’s a question about whether society is effectively denouncing the act that has taken place.

It’s the same with many instances of violent crime, again, being dealt with in a manner where many reasonable people would look at it and conclude, “Well, actually, from what the consequences of that are, society is not, effectively, denouncing the act and sending a very clear message that we do not tolerate that activity and there will be consequences for it.” I think that’s broadly what people are looking for in sentencing reform: a clearer message from society about what we do tolerate and what we won’t tolerate and where there will be significant consequences for certain actions. By limiting the overall discount, that’s what we’re hoping to achieve.

I’d actually like to take that point up, and it very much resonates with what I want to talk to the Minister about.

The issue over aggravating factors is that you’re adding factors, you’re selecting things that are particularly heinous, and while I accept that there’s a real role for punitive action when we are sentencing people for things they’ve done that are wrong and sometimes evil, there’s a whole lot of things that just don’t get on the list and yet they’re harming people enormously. My colleague raised the issue over whether you could buy your way out of a punishment, which hasn’t been answered yet. I ask you about the selection of those aggravating factors, because my understanding is that we are not punishing anybody who’s involved in any white-collar crime whatsoever. We don’t punish a whole lot of people who actually end up on home detention in situations where they’re in mansions.

Now, I’ve seen that happen in my career. I have been in Cin Cin when Mark Lyons came in while he was away, when he shouldn’t have been in Cin Cin at all. He was there, and he was repeatedly given softer sentences, and nobody asked, “What background did that man come from? What privilege did he have?” Was it something where, in fact, his crimes were hurting people enormously and he should have, in fact, been better off—in fact, we all would have been better off—if he’d been inside at that earlier point, including probably him?

These are real things—they’re not made-up—and I want to know from the Minister what kind of advice did he get about the proportionality of the crimes that he chose to target. It doesn’t mean they’re not important. I am from the area of Sandringham. I want to make sure that people do not ram-raid and that shopkeepers in my area feel safe. I am not disputing that those are very important things, but when somebody scams somebody, when they scam a whole lot of older people, they really hurt them. They hurt their families, they often cause suicide, they often cause deep, deep pain, and none of that is reflected on this list. What was it that the Minister decided to ask advice about, about what things should be on that list?

I heard the Minister talk about that kind of blue-skies approach and looking at the way that judges were making decisions. Where is the consideration of something like the obvious injustice when somebody goes and does their home detention in a beautiful mansion in Parnell and somebody else is doing their home detention in a little flat with a bracelet and poverty all around them and not a lot to do? Those are very different things. Yet how come they don’t get on the list? How come we don’t seek to punish and send those signals when it involves moneyed people, when it involves privilege? If you’ve committed a crime and you’ve had every privilege that our society can give you, including private schools and money—if you have committed crimes—surely you go to the top of the list? Surely, if you have taken people’s hard-earned money in society, including in Sandringham, and you have caused enormous damage, you should be on the list?

Where is, on the list, the people who are involved in drug crimes or involved in much more serious things? That’s what I want to know. What proportionality, what justice, are we bringing, when we hand pick a few things that just happen to target a group of people who always seem to be in the firing line and we ignore and we are blind to the real harm that others are causing? We do seem to be complicit. Where is it that you are doing that?

I’d also really still like an answer to my question about what happens if you have somebody who has had addiction and they are actually truly remorseful, they have developed—what happens then if they’ve already used up their chance in the depths of that addiction?

If the member is making the case for tougher consequences for white-collar criminals and people who perpetrate fraud against other New Zealanders, I wholeheartedly agree with her. They are broadly captured by this legislation, which is not limited to certain crimes; it covers all the crimes in the Crimes Act. I absolutely agree that one of the fastest growing areas of crime in our communities is fraud. I think all of us in the House will know of individuals whose lives have been capsized by fraudulent behaviour, where they’ve lost substantial sums of money, and so the limitation on discounts for that kind of offending applies equally.

In terms of the aggravating factors, yes, one which has been included in this legislation is in relation to the special vulnerability of victims such as dairy owners, who are often working alone or living upstairs from the building. We, as a Government, decided that it was important to particularly draw attention to people where particularly their family are living upstairs or out the back of a retail premises and are subjected to a ram raid in the middle of the night, and the horror that that brings to that family. We wanted to recognise that.

Yes, of course, a case can be made for many, many instances for aggravating factors, and so, yes, one can’t do it for everything, but certainly, the broad message that this Government is sending, and this Parliament, hopefully, if they support this legislation, is that we want to have firmer consequences for a wide range of criminal offending.

Thank you, Madam Chair. I’ve got two points. The first is in respect of clause 5 of the bill, section 8 amended. There’s an Amendment Paper on the Table—it’s actually in the name of Helen White, but I’ve asked her and she said I’m allowed to speak to it. It’s around the views of victims. We support the place of victims in the criminal justice system being enhanced. We’re concerned that this Government is saying it but really paying lip service to it. This Amendment Paper, which touches on sentencing principles, makes two suggestions. That is that the sentencing court should be taking into account the views of the victim—now, not giving them a right of veto, but giving weight to the views of the victim in respect of the appropriateness of any sentence, including any sentence indication.

Now, victims’ views are taken into account by way of victim impact statements. The current proposed amendments go some way to identifying the victim’s needs, but this would actually give genuine victim voice. Sentencing indications are quite well known. It’s quite common for a defendant to go to court and say, “Can you tell me what I might get and that might influence my plea.” It’s kind of a bit transactional, but I get it. Of course, if they say, “Oh, look, home detention is likely.”, then they might plead guilty—particularly if they live in Parnell—but if the victim says, “Home detention does not reflect my family’s anguish at the loss that we’ve suffered.”, then it strikes me that that’s a relevant consideration. That’s the first part of that. The second is the views of the victim concerning any restorative steps taken by the offender—for example, an apology, compensation, or non-financial redress. I know we’ve discussed rewards, but this is somewhat different. If the victim has met with the offender or undertaken a process and says, “I was in the room and we discussed everything and I have a degree of forgiveness or understanding and that should impact the sentence.”, then that strikes me as highly relevant. I’m inviting the Minister to seriously consider that.

The second thing—and I’m saying this now, and I’ll tell you why I’m saying it now, because I’m kind of jumping ahead of myself. It’s so that—because I suspect we’ll go over the adjournment—the Minister can think carefully about this and come back with a genuine answer, and it’s this: the 40 percent, where does it start? If you take a crime such as ill treatment of a child or vulnerable adult, it has a maximum 10-year sentence. What’s the maximum discount that we can get off that? Does it mean that the maximum discount is 40 percent of 10 years or does it mean that the judge does an initial exercise about the offence and finds this magical thing called “the starting point”—whatever that means—and then it’s 40 percent of that. The starting point could itself be five years for that particular offence, so is the discount 40 percent of five years in that case or 40 percent of 10 years?

It’s actually a question that goes to the very heart of this. There is no reform that will be more scrutinised by the courts than sentencing reform, because it’s all that it’s about. It’s about what courts do. The courts and lawyers and defendants and prosecutors need to know where this discount starts. Does it start from the 10 years, which ends up with a six-year sentence? Or does it start at this other magical place where the judges toss up the considerations which are not pertinent to offenders and might arrive at, say, five years, which means you’ll get a maximum two-year discount, in which case it would be a three-year sentence. There is nothing more important that will happen in this debate.

I’m not going to even dream that the Minister would answer that immediately, but I would desperately like an answer to that question in the course of this committee of the whole House.

Thank you, Madam Chair. I sort of got a response from the Minister of Justice, but not very clearly in terms of the statutory interpretation question asked in terms of the cross-heading above clause 6(1) and also in terms of the definition of “adult”. I think a response for that would be very helpful.

I know that Dr Tracey McLellan and the Hon Dr Duncan Webb are also waiting for some of the questions that they have been asking as well, but I want to actually pick up on clause 6(1), and particularly the newly introduced paragraph after section 9(1)(ca), section 9(1)(cb), which talks about what I find one of the most complex and one of the most interesting parts of the Crimes Act—which is section 66—around party liability.

The Minister has introduced party liability, particularly when we’re looking at section 66(1)(b), (c), and (d). As the Minister would know, section 66(1)(a) is the person actually performing the offending—or is actually the one who is offending—as opposed to the rest of them, being a party to it. I want to check with the Minister on two things when it comes to party liability—understanding there is a lot of work being done with party liability.

The first thing is around the concept of withdrawal when it comes to party liability. Now, this was a big deal in 2014 in the Ahsin v R case. In this particular case, you had two women, Jamie Ahsin and Raeleen Rameka, who encouraged, initially, in the first part of the process, but then withdrew and backed off in the second part. This went all the way up to the Supreme Court. The majority—when we get to some of the higher courts—discussed that the recognition of withdrawal must be as a true defence, not necessarily that you’re just kind of backing off halfway, and was unable to negate the element of section 66 because it cannot undo the complete actus reus at the point of participation.

Now, this is a really important thing. I understand the intention of why the Minister would like to introduce something and introduce party liability as part of the aggravating factor—particularly in light of other things like ram raiding, etc., which I’m sure the Minister can tell everyone about—but the idea of being able to withdraw part-way through and then being able to be acquitted of party liability is something that the court system currently still struggles with understanding. For example, in this case, are we potentially looking at a system where the court may have to do something creative—like, where the connection had been broken and the secondary party fully neutralises the participation before the offence is committed or withdrawal would have been motivated and a majority rejects a conclusion?

All of this is an incredibly important exercise in terms of understanding party liability and how the criminal court will look at party liability. That’s my first question: what is the advice the Minister has received around the concept of withdrawal halfway through, or, when you’re looking at separate events, when party liability is applied?

The other thing around party liability is that, like I said, it already creates some legal challenges for—predominantly, in this case—women also in abusive relationships. Now, when the common law presumption for acquittal of wives who committed crimes in the presence of their husbands was removed, rightfully, there was no defence that can realistically accommodate women in such abusive relationships. While we still have some of these challenges within our current interpretation of section 66 of the Crimes Act—particularly section 66(1)(b), (c), and (d)—it is a concern that we have compounded that issue by introducing elements of that as an aggravating factor.

This would actually have unintended consequences for women who are in abusive relationships, who are unable to say no, and who have unwillingly or inadvertently participated in a crime as part of section 66, because we have no current systems for it. Like I mentioned before, there is no way for them to fully withdraw. Then, on top of that, they get aggravating factors applied as well. You are looking at people who are probably the most vulnerable of our communities being hit by both section 66 of the Crimes Act and, then, on top of that, the aggravating factor in this bill. Can I just get some clarification from the Minister around party liability? Thank you.

We’re coming towards the end of this evening’s discussion, but, in short answer to the questions raised by Dr Duncan Webb, the discount would not be from a maximum sentence. That’s not the intention. The starting point will apply in practice. Sentencing is a judicial process based on common law, within the framework and requirements of the Sentencing Act. There’s a rule of thumb, as it were, that has come through the common law. For example, an aggravated assault might have a maximum penalty of X, but in these circumstances, at that level, with these consequences for the victim of that assault, the starting point might be X—eight years or something like that. That is the starting point from the 40 percent discount.

Now, of course, it is possible that different approaches could be made to the starting point, and if we were to discover after three years that suddenly the starting points for all the sentences suddenly halved, then Parliament and the Government would be left making different conclusions. There are many other things that Parliament could do if it felt like that message wasn’t getting through, but I have every expectation that the process—the normal process for setting a starting point—has been well established in the common law framework, and that would be the starting point for the discounts.

The time has come for me to report progress—I think my clock here is just a little bit faster than that one up there—so I will now report progress.

Progress to be reported.

House resumed.

Mr Speaker, the committee has considered the Sentencing (Reform) Amendment Bill and reports that it has made progress on the bill. I move, That the report be adopted.

Motion agreed to.

Report adopted.

This bill is set down for further consideration in committee next sitting. Members, the House stands adjourned until 2 p.m. tomorrow.

The House adjourned at 9.55 p.m.