Criminal Justice Reform Bill

Hon MARK BURTON (Minister of Justice) Link to this

I move, That the Criminal Justice Reform Bill be now read a first time. At the appropriate time I intend to move that the bill be referred to the Justice and Electoral Committee. The bill will give effect to the legislative components of the Effective Interventions package of initiatives for the reform of the criminal justice system. The aims of these initiatives, which were announced in August, are to reduce and prevent crime, address New Zealand’s growing prison population, and take genuine steps to help build safer communities. The initiatives focus on three broad themes: tilting the balance earlier to prevent crime, using alternatives to prison where this is appropriate, and adopting smarter uses of prison resources.

As members will be aware, the issue of the growing prison population is one of the most significant challenges facing the justice sector. We have an increasing prison population that is at odds with the long-term overall decline in New Zealand’s crime rate.

SIMON POWER (National—Rangitikei) Link to this

The National Party rises to make some comments on the Criminal Justice Reform Bill. I will do so slightly differently from the way the Minister Mark Burton did, by concentrating firstly on Part 2 of the bill and then moving to Part 1 later in my comments.

I start by saying that Part 2 does offer some positive contribution to the debate around incarceration rates and reoffending rates, as opposed to the crime rate in the first instance. Part 2 represents a backing down on the Government’s Sentencing Act 2002 as it relates to parole and eligibility for parole. The Minister all but acknowledged in his remarks that the eligibility of offenders for parole after serving one-third of their sentence has not worked, because it has created massive uncertainty around release dates and the length of time served. Although the National Party told the Government in 2002 that the Sentencing Act would create those problems, the Government has now acknowledged that mistake, and eligibility for parole will apply after two-thirds of a sentence has been served. That is to be welcomed.

What is not welcomed by National is the fact that those sentence lengths will be 25 percent shorter, on average, than they would have been previously. [Interruption] I ask the Minister to just wait. The explanatory note of the bill states: “Because the proposed parole changes are predicted to increase the average time served by prisoners from 62% of their sentence to more than 80%, sentences imposed by Judges would need to be about 25% shorter on average”. The problem with that logic, of course, is that that is not what 92 percent of the population voted for in 1999. What they voted for, and what the Government said it would deliver on, were longer sentences for higher-end offending. That will not be the case if that particular measure is imposed.

I agree that the sentences of community detention and intensive supervision have merit, and I look forward to discussing those issues in more detail on the Justice and Electoral Committee. I think that the Government has its head around that portion of the sentencing problem, and I believe that some constructive solutions can be offered there.

I worry, though, when the Minister says, as I recall him saying, that the bill is designed to deal with the issue of crime and the issue of the prison population. This bill is designed to do one of those two things, and that is to try to have as few people as possible end up being incarcerated. What the bill does not do—and members should remember that it is part of the Effective Interventions package—is to talk about solutions that will prevent crime from occurring in the first place. So National remains open-minded about parts of Part 2 and very concerned about the shortening of sentences that would come about as a result of that part. That, I guess, is the olive branch.

Part 1 concerns me deeply. The introduction of a Sentencing Council really worries me. I understand the argument that the council is designed to bring consistency to the application of sentencing and to codify mitigating factors at sentencing in a way that makes sentencing transparent. But let me just tell the Greens, the Māori Party, and United Future to beware of a Government bureaucracy that comes between the powers of the executive to legislate and the independence of the judiciary to pass sentences. My great concern is that the Sentencing Council will become the district health board of the justice sector, and that what we will hear is the Government simply saying the sentencing process had nothing to do with it, and that because the Sentencing Council makes those decisions, it is to blame for them. Then the Minister stands in the House and says we should not worry, because the council will be directed to assess the cost-effectiveness of its guidelines and to undertake prison population modelling. Well, we know how successful that has been. The Ministry of Justice has been unable to do that with any degree of accuracy for the last 4 or 5 years. Yet out of nowhere we are to create a Sentencing Council that will simply be able to do all the things to model and forecast the prison population that the ministry, with all its resources, has been unable to achieve.

I worry deeply about the fact that the Sentencing Council will undermine the discretion of the judiciary. This is a move by the executive to shuffle into the judicial discretion an independence that should be guaranteed by the separation of powers. If we wanted to undermine the discretion of the judiciary, or, more important—perhaps, more accurately—if we wanted to limit its discretion in a way that sent a message to the public that we were taking back as a Parliament some of the sentencing options available to the judiciary, then we should legislate—we should legislate in this Chamber to narrow that discretion. I say to the Minister that we should not create a separate body and a separate bureaucracy that would act as a buffer between those two crucially separated powers: the judiciary and the executive. This is a big constitutional change, and it is not to be undersold in this House today as just a mechanism to ensure that judicial discretion is limited and sentencing guidelines are tightened. This is a fundamental departure from the demarcation this country has had between the judiciary and the Parliament up until now, and National remains gravely concerned about the prospects of it. The Minister said a similar system worked in Victoria. My understanding is that such a council has not been adopted federally in Australia, and we should be asking in this Parliament why it has not.

Although I agree that there is some work to do around the prison population—and the Minister of Corrections knows that is my view—and I am open to suggestions around issues of intensive supervision and community detention as part of a new sentencing structure, National will not support this bill at its first reading because of Part 1: because of the Sentencing Council, and because of the discretion that will be taken away from the judiciary in an effort for the Government—the executive—to separate itself out from sentencing, which is always controversial in the public’s mind. But the public made it clear in 1999 what they wanted. This Parliament cannot say to the public that it will solve the problem by putting in place a Sentencing Council and reducing the length of sentences by 25 percent. I say to the Minister that we can argue about the sentencing options, but I am not convinced by the proposal for the Sentencing Council. I will sit on the Justice and Electoral Committee myself to hear submissions on that issue, but I remain determined that there should be a clear demarcation between the legislative arm in this House and the judiciary and its ability to sentence. National will not condone the creation of a district health board model in the justice sector.

Hon DAMIEN O'CONNOR (Minister of Corrections) Link to this

I listened with great interest to Simon Power’s contribution. It would be nice to have the National Party supporting the Criminal Justice Reform Bill going to the Justice and Electoral Committee, because it is very significant legislation.

I came into the role of Minister of Corrections at a fortunate time. Prior to that, this Government had acknowledged that there were issues right through the justice system that had resulted in an escalation in prison numbers that was not sustainable. The Government had initiated the Effective Interventions programme, which was, effectively, a 12-month review of the justice system, from front end to back, and what we could do to try to reduce prison numbers over time. We did that not necessarily just because we wanted people out of prisons, but the number of people in prisons is an effective measure, unfortunately, of failure right across our society. The fact that we have to lock people up indicates that we are failing at some point; it might be at parenting, at preschool education, in training—or wherever. But the number of people we put in prison is a measure of failure within our society. The Government is determined to improve that situation, because these figures have not been great.

We have a strong record of action on law and order and have made many improvements to the system since 1999. New Zealand’s crime rate is now the lowest since 1982, but that runs contrary to the trend in the prison population, which drove the need to look carefully at what we have been doing and where we needed to make changes. This legislation is the outcome of that very thorough and considered process.

New Zealand will still need prisons. For the serious repeat offenders and hardened criminals, from whom the public must be protected, there is no other option than imprisonment. We maintain that position. But non-custodial sanctions will end up being more productive for many others in our prison system, and for this country, and will allow us to make smarter use of the resources we have at the back end of the justice system.

I came into the role facing additional cost to complete our new rebuild programme of prisons, and that, along with the realisation that we were locking up people at, I think, the fourth-highest per capita imprisonment rate in the OECD—I say the second-highest in the Western World—is both embarrassing and something that should not be tolerated. This Government will not tolerate it. That is why we have to make some changes through this legislation.

My colleague the Hon Mark Burton, Minister of Justice, has outlined some of the key points of the changes that we hope the legislation will make, after thorough consideration by the select committee. For example, we hope to turn home detention into a sentence in itself. Home detention costs a third of what it costs to imprison someone. Some people have said that home detention is an easy option, but it is not. That fact was clearly identified by those who have been on home detention. Yet, it results in far greater rehabilitation, far lower reoffending rates, and a far better outcome for the justice system, the corrections system—indeed, the whole of society. So we hope the introduction of that initiative, along with the new community sentence options, will give a greater number of tools to judges when handing down sentences for offenders. The Government is not going to step back from that. People who commit crimes will be caught, will be processed, and they will have to repay their debt to society for that crime.

However, we must be smarter at working on ways to have that repayment to society made in full, and enabling and assisting those offenders to rehabilitate themselves—or habilitate, unfortunately, in the case of many—and reintegrate themselves into society. At a time when we have the lowest levels of unemployment, when we have a desperate need for skilled and semi-skilled workers throughout our entire economy, we have locked up over 7,500 people, most of whom are males who are very capable of contributing usefully to our society. By means of this legislation and other programmes in the corrections system, we must boost rehabilitation and reintegration. It is a very, very difficult area of the corrections system.

Internationally, neither rehabilitation nor habilitation gives outstanding results but we are a little country and we do not have to copy the trends or, indeed, the practices of other Western nations. We have the ability to develop practices and programmes that will be truly effective. We have a sad statistic that 50 percent of the prison population are Māori, the indigenous people of this country. Many of the influences on those offenders are unique to this country, so we must develop our own programmes. The Government has reviewed and assessed programmes within the prison system and found that some of them are not as good as they could be, and we have made changes. We will continue to do that. We have introduced workers within the corrections system specifically to help prisoners beyond their sentence, to rehabilitate them into their homes, into jobs, and into society. That work will continue and is part of the ongoing achievements and improvements the Government has made within the corrections system.

As I said earlier, the bill contains a number of provisions. It deals with law changes in the Effective Interventions initiatives. It aims, of course, to reduce criminal offending and reoffending and increase certainty around the penalties given to convicted offenders. Although I understand the views expressed by the previous speaker about the Sentencing Council, I think it is not a bad system to have fairer and more consistent guidelines for penalties that are laid down by judges. I think the member, along with most of us, would have heard from members of the public up and down this country about their dismay at some of the penalties.

CHRISTOPHER FINLAYSON (National) Link to this

I am disappointed the member chose to give a waffly, generalised speech, rather than a first reading speech that addressed the very real concerns that National has about this legislation, and particularly Part 1. I am going to concentrate on Part 1 and elaborate on some of the concerns that Mr Power has expressed.

Sentencing councils, as the Minister said, have been established in a number of jurisdictions over the years. The Minister mentioned Victoria, and England and Wales. They have also been established in Scotland, New South Wales, and a number of American states. In its report Sentencing Guidelines and Parole Reform, the Law Commission has recommended the establishment of a Sentencing Council, and the Government has agreed that such a council should be established in New Zealand, hence this legislation, the Criminal Justice Reform Bill. Although I respect the work of the Law Commission and think it has done some great work this year, I believe that on this occasion what it has proposed will not work and is constitutionally unacceptable as it will undermine the independence of the judiciary.

My first concern is that this bill establishes a non-elected body to oversee a very significant aspect of the criminal justice system that has always been the province of the judiciary. The constitution of this body is unacceptable, and I refer members to clause 11, which provides for the appointment of one judge from the Court of Appeal, one judge from the High Court, two judges from the District Court, the chairperson of the Parole Board, and five members who are not judges. These lay persons will be appointed by the Governor-General on the recommendation of this House. One of the lay persons is to be the chairperson, and one of the judges will be the deputy.

Who will be the lay people who are appointed to this council? The Minister said the system works in Victoria. I strongly suggest that he speaks to the Victorian Attorney-General, Mr Hulls, on the problems he had in 2004 when he announced appointments to that state’s independent Sentencing Advisory Council. It was his bid to placate an angry public over apparently lenient sentencing laws that were said to fall short of what was needed. Mr Hulls announced that the new members would include victims of crime, police, youth, women, people with disabilities, the mentally ill, indigenous peoples, and the legal sector. The Crime Victims Support Association was so angered by what it called a lack of victims on the list that its members held a protest at the Victorian Parliament to express their views. Their president said that no new member of the council would qualify for the status of a victim and it did not seem right to have an independent committee of this sort that did not have a victims’ representative.

I have no doubt at all that similar issues will arise in New Zealand if a Sentencing Council comes into existence. For example, the Sensible Sentencing Trust people will be asking for a representative on the council, as will numerous victims’ rights organisations and the sorts of groups who are appointed by the Victorian Attorney-General. I also think it is unsatisfactory for the chairperson to be a lay person.

The proposed body is to prepare public guidelines, which will be published, as set out in clause 14. It may then consult on those guidelines “with any person or body, by any appropriate means.” There are numerous consultation regimes in statutes these days. There has been an explosion in consultation procedures since the 1980s and they are now an established part of the business of government. The consultation requirements inserted, for example, into the Local Government Act in 2002 have been a disaster, creating an avalanche of paperwork that entombs local authorities and their staff. I believe there will be similar problems with consultation by any Sentencing Council—it will end up consulting those who make the loudest noise. I cannot see how consultation of the kind proposed is going to result in rational decision-making.

Then there is the opportunity for parliamentary scrutiny of these guidelines. I think that will just give some politicians an opportunity to grandstand. Politicians rarely notice the judiciary except when it is convenient to criticise a judge for a decision that he or she may have made. This is nowhere more apparent than in the criminal law area. Once the guidelines are tabled in Parliament, one can expect that certain MPs will jump at the opportunity to say that the guidelines are too soft, the guidelines are too hard, or whatever.

In this extremely sensitive area of the criminal law, this Government is proposing to establish a council, half of whose members are to be politically appointed. This Government has an unfortunate record of appointing cronies to various bodies, and one can expect that this sort of cronyism is going to continue if this council is established. It is objectionable in principle, particularly as it seeks to usurp a significant aspect of the criminal justice system that is properly the responsibility of the judiciary.

My second objection to this legislation is that the Sentencing Council is not needed. The Sentencing Act 2002 was comprehensive legislation that provided guidance to judges on the factors they ought to consider when sentencing. What was established was both flexible and permitted the exercise of judicial discretion in individual cases. Lower court judges also receive guidance from the Court of Appeal, which, on a regular basis, gives judgments in areas of the criminal law that are often referred to as guideline judgments. More than that, following the passage of that legislation, we now have the abolition of the right to appeal to the Privy Council, and the creation of a Supreme Court, which will mean that many more criminal cases will be taken on appeal to the Supreme Court and that is happening now. The Supreme Court will thus have a major role to play in the development of guidelines for sentencing.

So what has been evolving in this country is a system that permits sentencing judges to have a degree of discretion but allows the superior courts to provide guidance from time to time. I cannot see how the publication of rigid guidelines developed by this kind of body will improve the present situation. It has to be emphasised that judicial discretion in determining a sentence is central to dealing with offenders in a criminal justice system. The legislation will set out the maximum penalty for a defence, then it is over to the judge who sentences the offender to determine the sentence that is most suited to the seriousness of the offence and to the individual circumstances of the offender. It is well established that discretion is a useful tool to mitigate the rigidity and the inflexibility of legal rules and it enables judicial officers to particularise their responses to particular circumstances.

A sentencing judge has to take into account a wide variety of matters that concern the seriousness of the offence for which the offender stands to be sentenced, and the personal circumstances of the offender. From all those elements the sentencing judge distils an answer that reflects human behaviour in the time or monetary unit of punishment. Yet this proposal will undermine judicial discretion. What really concerns me about Part 1 is the way sentencing guidelines will affect the independence of the courts. This committee will be more important in the sentencing process than the Supreme Court, and that is wrong.

My final point, arising out of what the Minister said about his discussions with members of the Sentencing Council in England, is that guidelines have not really worked in England, and a recent case illustrates this point. These guidelines have resulted in increased concern or bewilderment on the part of the public at the sentencing process, and a diminution of public confidence. I refer to the example of a person called Craig Sweeney in England who abducted and sexually abused a girl aged 3. He was sentenced to life, with the judge giving him a lengthy sentence, but will be eligible to be considered for parole in 5 years. Judges in England used to follow guidelines produced by the Court of Appeal but this was changed by the Criminal Justice Act 2003.

The Sentencing Guidelines Council produced recommendations to encourage consistency in sentencing, and one of those guidelines meant that Sweeney’s sentence was reduced by one-third because of an early confession of guilt despite his being caught red-handed. The Attorney-General, Lord Goldsmith, has decided not to challenge the sentence, because he has concluded that it is not unduly lenient. The mother of the abused child said she was gut-wrenchingly sick at the decision, and, as Lord Falconer said about this case, confidence in the judiciary had been undermined, and judges should not be whipping boys for a flawed system. He said there needs to be a very urgent look at the automatic discounts given on jail terms as a reward for guilty pleas.

There is a real problem in England, there is a problem with the sentencing guidelines, it is very much the subject of public discussion and debate, and the short point is that the sentencing guidelines in England are not working. The case I have described was entirely the result of the Government’s own Criminal Justice Act and the sentencing guidelines. The judge followed them to the letter and the result was an almighty mess. So Part 1 raises some very serious questions that were not touched on at all by the previous speaker and they will need to be addressed by the select committee.

Dr PITA SHARPLES (Co-Leader—Māori Party) Link to this

I want to talk today about the courage of a 13-year-old boy from Moerewa, Phillip “Piripi” Tautari. Members should remember the name, because all the marks of leadership are etched upon his signature. Piripi attends Moerewa School, describing himself as “a very reliable person to this community as a fire cadet, and an asset to my other friends within my class, in the way of life skills.” But 2 weeks ago that young boy became another mugshot protégé, as a photographer snapped him in a shot to accompany an article about the kidnapped Dutch tourists. As Piripi later reflected: “I am very upset to see myself pictured in the newspaper clipping as I felt that I was part of the criminal offenders.”

But the taking of offence did not stop just with Piripi. Letters flooded in from 150 schoolchildren in defence not only of the model student but also of Moerewa. The letters all protested that in associating a shot of Piripi with a story about the brutal abduction and robbery of two tourists, a perception was being created that served to cast that young Māori boy as part of the crime scene. And Moerewa was not having it. Its people articulated their outrage at the careless and irresponsible use of the media to project a false image of the boy and the town.

The actions of Piripi and his mates is an example of the sort of everyday revolution that inspires hope. The hope is what we must all think of when we consider the measures being introduced in the Criminal Justice Reform Bill to arrest the sharp increase in the prison population. The Māori Party has said loudly and often that achieving reduced prison numbers needs a system-wide commitment, not just an approach that merely tinkers with the management of penal resources. Just as Piripi, his mates, his principal, and the community stood up to be counted, so, too, do all New Zealanders need to become involved in an overhaul of the incarceration rates, to stand up to injustice, and to demand better.

A key initiative in this bill is to give effect to the Law Commission’s recommendations to establish a Sentencing Council. The council will issue guidelines on sentencing principles, levels, and types, and on the granting of parole. Sentencing councils or commissions have been established in England, Wales, Scotland, Victoria, New South Wales, and over 20 United States states.

At a very minimum, we would expect that whānau, hapū, and iwi must be consulted by the council when establishing sentencing guidelines. Surely, we must all be looking at indigenous alternatives for meaningful solutions to these enduring problems. An initiative that this Parliament could be investigating, as part of the consideration of this bill, is that of circle sentencing, or circle courts. Circle sentencing arose from a decision of the Supreme Court of Yukon, in the case of R v Moses in 1992. The presiding judge, Judge Stuart, was of the opinion that significant institutional change could be achieved by increasing meaningful community involvement before, during, and after sentencing took place. Accordingly, he consulted the local Indian community, and developed the concept of circle courts. Circle courts were known to First Nation Canadian peoples in more traditional settings, but have recently been applied in urban settings.

Over in Nowra, in New South Wales, the Aboriginal Justice Advisory Council’s circle sentencing pilot has been established from the local courthouse, and directly involves local Aboriginal communities in the sentencing process. In essence, it means that the sentencing court is taken to a community, where Aboriginal community members and the magistrate sit in a circle to discuss both the offence and the offender. Interestingly, this is the same concept that the Moerewa primary school uses. It is called a talking circle, and when children make anyone feel sad or hurt, they are called to account in the talking circle. Circle sentencing involves the victims of offences as well as the families of offenders, and other respected people within the community.

I come to this bill able to speak with absolute confidence, from the basis of my experience within similar initiatives put forward from tangata whenua. In the mid-1970s we established a restorative justice neighbourhood court in Te Atatū, west Auckland. This form of marae justice began as an independent, unfunded model, with schools and the community in general bringing their complaints of criminal or antisocial activity to be deliberated upon. It proved to be so successful in settling disputes, and in providing for some form of reparation or restitution, that the police and, later, the Waitakere District Court began to refer incidents and crimes to the neighbourhood court to be dealt with by us. The project was extremely successful because perpetrators appeared before a court made up of people from their own community. Expressions of guilt, sorrow, remorse, anger, and love were key features that ensured the success of the programme, which had a recidivism rate of almost nil.

That neighbourhood court and sentencing programme was later used by the local District Court judge of the time, Judge Michael Brown—Mick Brown—to create the family conferencing programme for New Zealand children’s courts that is in operation now. In turn, the elements of the conferencing programme were introduced to Australian children’s courts. In 2003 the BBC was so interested in the work we were doing in Tāmaki-makau-rau that it filmed a documentary for its Foreign Correspondent programme that aired in Britain and Australia.

This marae justice is about real life, not just crime. The focus is on restoring mana to the group, to the whānau, and healing the offender as well as considerations of restitution.

One of the great mysteries to me, then, is how come we know that great initiatives are occurring in Australia and in Canada, and that people from Britain are coming here to learn about our indigenous justice initiatives, yet in Aotearoa, in this bill, there is not even a mention of them. The intent behind this bill relies on full and active community involvement. The introduction of three new non-custodial sentence options for less serious offenders, including home detention and the two new community-based sentences of community detention and intensive supervision, places far greater emphasis on the involvement and support of the community. Similarly, the amendments to the Bail Act, so that offenders are not unnecessarily remanded in custody rather than being released on bail, demand a greater responsiveness on behalf of the community.

Yet bizarre twists of policy change are included in this bill that seem to achieve the opposite effect. The Parole Act 2002 is amended in clause 120, which raises the non-parole period for a long-term sentence from one-third to two-thirds of the sentence’s length. Clause 121 shifts the release date for short-term sentences from the date marking half the length of the sentence to the expiry date of the sentence. In effect, that means there is no longer any eligibility for parole. So here we have, in the midst of a bill purportedly designed to reduce projected growth in the prison population, moves to make people sentenced to short or moderate-term lags end up in prison for longer than before.

The Māori Party will support the Criminal Justice Reform Bill at its first reading, because we are passionately committed towards supporting moves to reduce prison incarceration rates. But all the tinkering and technicalities will result in more of the same. We must be prepared to learn from the example of Piripi Tautari and look at the bigger picture—the image from afar. We must apply our best thinking to stand, like Piripi, and say that this is not the prison profile we want for our nation. We can do something about it. We need to look through another lens. Sentencing circles, restorative justice, and involvement of whānau, hapū, and iwi may all provide some help for the solutions we seek. But, at the end of the day, I cannot help feeling that until the Government seriously tackles the big question—that is, how to reduce the amount of crime committed in our society—our prisons will continue to be disproportionately full of offenders. Thank you.

NANDOR TANCZOS (Green) Link to this

New Zealand has one of the highest rates of imprisonment in the world. I am profoundly ashamed of that fact, and have been since I have known it. I think that fact causes embarrassment to just about every New Zealander who hears it. But the fact itself is not a surprise, really, because since I have been in Parliament I have seen almost all the other parties—the Labour Party, the National Party, ACT, New Zealand First, and United Future—competing to be the most punitive party on crime. I remember many of the debates on justice and law and order in this House were truly odious, in terms of the way they were conducted. Some members seemed to relish wading into the tragic details of horrible crimes, although I accept that many of those members are no longer with us. Nevertheless, that is the backdrop to the various justice and sentencing changes we have seen over the last few years.

So I am really happy to see a bill, finally, that focuses on reducing crime rather than on simply locking people up. It recognises that a sharply increasing prison population is actually a symptom of failure rather than a symptom of success, which was the mentality here for so long. I am particularly pleased, of course, with the stance taken by the Māori Party, and with the comments it has made since it has been represented in this House, in terms of promoting some of the same things that the Green Party has been promoting around restorative justice, Māori justice processes, and the like. I note the indication we have had that legislation around restorative justice may be under way, and I will be very pleased indeed to see that come before the House.

I agree with Mr Power that this bill does not address the real issue, which is crime prevention. Although that has to be our focus, I also accept that it is a matter for another bill and that a Criminal Justice Reform Bill is not the place to address issues such as that. So I look forward to seeing initiatives on crime prevention come before the House, as well as this bill.

In relation to this bill specifically, I am pleased to see some of the clauses in Part 2 that relate to non-custodial sentences. I was very supportive of the approach taken in some of the provisions in the Sentencing Act 2002, where there is a clear presumption that a sentence should be the least restrictive sentence that is commensurate with public safety, and where there is a preference for reparation and fines rather than custodial sentences. I supported that. I think there have been some real difficulties in terms of how the Sentencing Act has actually been put into practice in the courts, and some of the things in this bill will help to tidy that up.

In particular, the provision to introduce home detention as a sentence in its own right is incredibly sensible and deserves support. We know that some of the advantages of home detention include low rates of reconviction and reimprisonment, high rates of compliance, and positive support for offenders’ reintegration and rehabilitation. Those are crucial matters when it comes to reducing crime, particularly recidivist crime. I think that the making of the stand-alone sentence of home detention provides clarity and makes it more efficient. It has just been crazy that a judge has been able to say an offender is eligible to apply for home detention, yet then the case goes off to another body to decide whether that will happen. It makes sense that a judge should be able to use home detention as a sentence in its own right, and I think that will lead to better decision-making.

The bill also introduces a couple of reforms around community-based sentences in relation to more intensive supervision and community detention. Community detention involves an electronically monitored curfew. The explanatory note of the bill says this is suitable particularly for offenders whose offending has a specific pattern or tends to occur at particular times. This reform is somewhat contentious. The introduction and extension of electronic monitoring is something we need to view with some caution, because when this monitoring was introduced we were told it would be only for very serious sexual offenders, in terms of extended supervision and the like. Although it is a contentious provision, nevertheless there are real and obvious advantages in extending the use of non-custodial sentences in ways where the safety of the public can be better assured, such as through electronic monitoring. So I think it is something to be supported, although, as I say, there are mixed views on that. Then there is the higher level of restriction that can come through intensive supervision. The reforms to community-based sentencing also include a greater emphasis on the acquisition of basic work and life skills. That is obviously vital and has been needed for some time.

One of the things I am unhappy about is that the bill comprises only three parts. Increasingly, we have seen a tendency by Governments to aggregate clauses into fewer and fewer parts, simply as a way of shortening the Committee stage debates. Those debates tend to be part by part now, and in Part 2 a whole bunch of stuff has been put together that could, for the purpose of debate, quite usefully have been separated into more parts. One example is the reforms to the Parole Act of 2002. I want to be clear: I do not believe in truth in sentencing. The phrase is a cliché that has been used to try to attack what I think is an important part of the criminal justice system, which is parole. Parole actually has enormous and proven benefits in terms of reducing reoffending, and I think we get rid of that to our danger. It also clearly has benefits in terms of behaviour control in our institutions.

The other point—which to me is a point of principle—is the issue of why we keep people in prison if they are not a risk to the community. One of the reasons I strongly supported the Parole Act 2002 was that whereas previously people had been automatically released at one-half of their sentence, now they can be kept in prison for the whole of their sentence or released at one-third of their sentence, with the deciding factor being the risk to the community. To my mind no consideration other than risk to the community should determine whether a person stays in prison. That has to be the most important thing. Prison is really about keeping people out of circulation because of the risk they present to the community. If they do not present such a threat, why keep them in prison?

One miscellaneous matter I have noticed is the extension of the sunset provision in the Prisoners’ and Victims’ Claims Act of 2005. That provision concerns me, because it has been sneaked into the bill and is not actually in line with any of the other reforms. Members should take notice of that.

The last thing I will touch on is the issue of the Sentencing Council, which I have real concerns about. I agree with Mr Power that it should be looked at with great caution, because it is a significant change. Sentencing is already subject to parliamentary influence through legislation that sets maximum and minimum sentences, but the Sentencing Council would appear to have far more direct power without the same parliamentary accountability, and that is an issue. Nevertheless, I recognise the arguments about inconsistency in sentencing, particularly around minor offences. It is a question of whether we prize judicial discretion more than consistency. In particular, with regard to the inconsistency around sentencing for minor offences, I would very much like to see a breakdown along ethnic, gender, and class lines. I would not be at all surprised to see a correlation between those and that inconsistency, because we know that Māori are treated disproportionately heavily throughout the criminal justice system. It is the same with young males and poor people. I think that analysis is worth bringing to that debate.

Although, as I said, the Sentencing Council needs to be looked at with caution, I think there are arguments to support it. I look forward to receiving submissions in the Justice and Electoral Committee. The Green Party will vote for this bill to go to the select committee, but we remain cautious around that particular proposal.

KATE WILKINSON (National) Link to this

In speaking on this Criminal Justice Reform Bill, it is useful, I think, to start with some introductory background. In New Zealand, as has already been highlighted, we really do have some appalling crime statistics. The latest statistics published by the New Zealand Police show that over the past 12 months total crime has increased by 6.9 percent—nearly 7 percent—contradicting previous claims from the Government that crime figures are actually falling. Violent crime has continued to trend upwards since this Government came to power. Since the 1999-2000 year, violent crime has risen by 26 percent, from 40,090 offences to 50,644 offences. Grievous assaults are up by 54 percent and serious assaults are up by 30 percent, and I do not think that that represents in anyone’s mind a decline.

There is an alarming increase in the intensity of violence across the community. We have had a sharp increase across a range of crimes in the past year alone. Violent crime is up by 10.2 percent. Grievous assaults are up by 19 percent. Homicides are up by 31 percent. Kidnapping and abduction are up by 46 percent. Intimidation and threats are up by 14 percent. Robbery is up by 20 percent. Sexual assault is up by 13 percent. Sex crimes are up by 8.2 percent. Dishonesty offences are up by 7.8 percent. Car conversions are up by 17 percent. House burglaries are up by 11 percent. Receiving stolen goods offences are up by 33 percent. Drug offences and antisocial offences are up by 6.3 percent. Busts for new drugs—methamphetamine—are up by 50 percent. Property damage is up by 15 percent. In all those figures, I do not see one decline, whatsoever. I have to say that these figures are a serious indictment on the crime prevention strategies of this Government. Its promises to reduce crime are simply not backed up by action.

This issue is about crimes against people, and the Government is failing to deliver safer communities. So what does the Government do to get on top of the crime problem? It introduces this Criminal Justice Reform Bill, which is designed to stop the increase in prison population, but it does absolutely nothing to prevent crime from occurring in the first place. As Dr Sharples has already mentioned, the big question that has to be answered and that needs to be addressed—and that has not been addressed—is how to reduce crime in the first place.

The bill creates a new Sentencing Council, and my colleagues Mr Power and Mr Finlayson have already adequately, and more than adequately, covered this matter. The council itself has some laudable objectives. One is to produce guidelines relating to sentencing levels, sentencing principles, types of sentences, and sentencing practice. The second is to produce guidelines regarding parole. The third objective is to produce guidelines in relation to the prison muster. It also assesses the cost-effectiveness of the guidelines—presumably, the fiscal cost of the guidelines, rather than the important cost to the community of the crime in the first place. The council is also to give advice, collate information, provide information, plus any other functions incidental to and related to any of the above.

The National Party’s concern, which has already been mentioned, is that this can very easily transform itself into the “Scapegoat Council”. This council can be given the blame for any criticisms whatsoever on sentencing. The rationale will be that it is not the Government’s policies that are at fault; it is the council’s policies. The council can take the blame for the Government’s lack of policies in relation to the reduction of crime. The priority must be to prevent the crime in the first place, not to put a bureaucratic council in place to act as a scapegoat, to act as a political tool, and to hide the failure of Government policies that are not addressing the problem of the increasing rate of crime.

The bill is about reducing prison populations. It is not about reducing crime. And how exactly does it reduce those prison populations? Well, it appears that it reduces the prison populations by letting people out of jail. Part 2 of the bill amends several Acts—the Bail Act, the Sentencing Act, the Parole Act, and the Prisoners’ and Victims’ Claims Act. It has been mentioned that it introduces home detention as a sentence in its own right, rather than as merely a way of serving a sentence of imprisonment, as under the existing legislation. It introduces a new sentence of community detention and intensive supervision. These are hardly sentences illustrating any policy of being tough on crime.

Under the bill, a court may sentence an offender to either intensive supervision or community detention if the offender is convicted of an offence punishable by imprisonment, an offence under an Act providing for a sentence of home detention, or an offence under an Act providing for a community-based sentence. In other words, it is an either/or situation. So any offence punishable by imprisonment can be—so-called—punished by intensive supervision or by community detention sentences.

We have to ask what message this sends back to the members of our community about how highly we regard their safety. We do know that, historically, community-based sentences have been a failure. For example, in the 2005-06 year 28 percent of offenders breached community work orders—up from 23 percent in the previous year, 2004-05.

The bill also amends the Parole Act. Currently, those offenders sentenced to under 2 years’ imprisonment are automatically released after half that time. Those with sentences of 2 years’ imprisonment or more will be eligible for parole after one-third. Under this bill those offenders with sentences of 2 years’ imprisonment or more who are eligible for parole will be eligible at two-thirds of their sentence. But, as the Law Commission pointed out, sentences would have to be about 25 percent shorter after the parole changes, if the length of time served was to be the same, and the size of the prison population unaffected. In other words, what is tougher about that?

The public have asked for truth in sentencing. People do not want to be hoodwinked into thinking that there is any truth in sentencing when a 25 percent reduction, on average, would not necessarily mean a reduction in the actual punishment, as the amount of time being served by the prisoner might be exactly the same. The net result is still the same—100 percent of nothing is still nothing.

We have an increasing prison population. We are building, at exorbitant costs, more prisons. But softening the sentences is not the right, or the safe, way to reduce the number of prisoners. The safety of our law-abiding citizens is paramount, and should not be endangered because this Government has run out of ideas and thinks that the best way to be tough on crime is to reduce, by whatever means, the prison population. The best way to be tough on crime is to reduce crime in the first place. This bill does not address that matter.

RON MARK (NZ First) Link to this

I seek leave to have the House lift and for me to resume my speech when the House resumes at 7.30. I see that there is less than half a minute on the clock and it would seem rather pointless to start a speech at this point in time.

RON MARK (NZ First) Link to this

In speaking to the Criminal Justice Reform Bill on behalf of New Zealand First, I want to say that this bill is a bit of a mixed bag for us in New Zealand First—something of a pot-pourri. I say that because there are aspects of this bill on which we have been involved in extensive discussions with the Government, and which we see as being a definite improvement on the justice system as it currently is. I have to say that this bill is a final admission that the reforms passed by this House in 2002 under the Sentencing Act, which were championed by Phil Goff as being the answer to the problems in law and order and the justice system that have beset our nation, were wrong, or that those reforms overlooked some of the criticisms that were levelled at the Government at the time they were passed. In fact, the Government chose, on occasion, to demean and belittle commentary made by Opposition MPs at that time. This bill is final proof that some of those changes in the Sentencing Act were ill-advised.

I have to say that it has been quite interesting talking to some of the people who have been involved in the discussions behind the scenes. One of the questions I did ask in those discussions was: “So, who advised the Government of these changes in the first instance, and are they still working for the department?”, because, quite frankly, changes and reforms that actually reduced the amount of time that an inmate or a person convicted of an offence and given a jail sentence would serve—changes that saw jail sentences reduced by two-thirds—were clearly wrong. We know it was clearly wrong because this bill seeks to change that.

Unlike Nandor Tanczos, who says that he does not believe in truth in sentencing, New Zealand First says that although we initially opposed some of the thoughts on the concept of truth in sentencing, we have come to the point of view that it is the most honest means of delivering justice. For too long citizens of this country have stared open-mouthed and gaped with absolute incredulity at the notion that a person sentenced to 3 years’ jail would be out on the street in a year, or less than a year. We applaud the fact that home detention is about to see its closing days in the form under which it has been operating. We applaud the fact that back-end home detention will go. We applaud the fact that the nonsense known as deferred sentencing will go.

We accept—and still reserve the right to pass judgment again, once we have seen the system operating—that home detention has a place. It is good to see that home detention will become a sentence in its own right. We see that as smart. The concept that the person or body of people who makes the decision as to whether a convict should be given home detention, some months after that person had been sentenced, should not include the sentencing or presiding judge was a nonsense from day one, and it remains a nonsense today. That proposal, I think, was introduced by a National Government, although National does not want to seem to accept or stand up and recognise the errors of its ways. The sooner this bill can put paid to that nonsensical situation, the better for all concerned. We are comfortable and happy that under this proposal the presiding judge, who hears the case, who sees the evidence, who hears the witnesses, and determines the sentence, shall be the person who will decide whether at that point a person is deserving of home detention, how long that will be, and what conditions will be imposed upon that person. Far better that it be that judge than a body of people in a different venue with different authorities, different powers, and no understanding, really, other than what those people read on a piece of paper about the case and the impact that it had on the victims.

There is much debate about short sentences and about how ineffective they are. Well, New Zealand First does not disagree with that, but we would propose something different. We say to the House that rather than doing away with short sentences, maybe in the select committee stage we should be talking about minimum sentences of 1 year. We proffer that thought because one of the greatest reasons we can see as to why short sentences are not working is that within that short, undefined, unknown period of time it is impossible—and I say it again, it is impossible—to put that inmate on a structured treatment programme with any certainty. If one has a person who is in jail because of an alcohol-induced crime of violence, and one wants to truly address his or her past recidivism and criminogenic needs—the fancy psychobabble term they use these days—one needs a specified period of time over which one can complete, conduct, and carry out a specified training course or package of training courses or treatment courses to deal with those. It is hopeless for the Department of Corrections to be expected to put together a rehabilitation plan for an inmate who has been given a 12-month sentence, only to find out that the person is actually going to be released at the 6-month mark. It is absolutely impossible. Therein, fundamentally, lies the reason that many of the issues that beset a particular inmate are never addressed—and then we wonder why the inmate is back again.

I have to say something about the explanatory note of this bill before I run out of time. We do not agree with the introduction. We do not agree with the background notes to this bill. Fundamentally we do not agree because the approach in this bill has been wrong from day one. The explanatory note states: “The purpose of the Bill is to introduce a range of measures to arrest the sharp increase in the prison population in recent years. This increase is no longer sustainable, neither financially nor socially.” What drivel. That is a politically correct approach to a problem that this Government finds embarrassing. Let me make it clear. New Zealand First does not have a problem with the large number of people in jail. What we have a problem with is the absolute ineffectiveness of the rehabilitation programmes and plans, which results in people going back to jail. We put on the record here and now that the discussion should not have been about effective intervention. That is a recipe for a disaster, for a start. We will be back here debating whether the effective interventions were effective 1 or 2 years from now, when we note again that violent crime is still on the increase.

What all this should have been about was effective rehabilitation. I will say that again. The focus should not have been on effective interventions. I am astounded that the Greens bought into this as well, and I actually have a sneaking suspicion that they do not. We should have been focusing on effective rehabilitation. Effective interventions is not about passing laws to stop more people being put in jail. Effective rehabilitation and, thereby, intervention is about putting in place programmes—alcohol addiction programmes, drug addiction programmes—designed to counter those issues that are effective in rehabilitating the inmate. The fact is that 85 percent of the people who are released from jail are back in jail in 5 years. A knee-jerk reaction that we are embarrassed that we are sitting at the wrong end of the OECD levels with the number of New Zealanders incarcerated should not be the driving motive for this legislation. It is wrong, silly, and fundamentally flawed, and is doomed, actually, to failure.

But there are things in this bill that we support. As I have a minute remaining, I have a brief word to say on the Sentencing Council. How ironic that the National Party should stand against what the Government is proposing here! The Sentencing Council is to be made up of a panel of five judges—former lawyers, the very people whom Chris Finlayson objects to being interdicted in the justice process. The big issue that has to be dealt with from one end of this country to the other when it comes to sentencing is consistency and—I am sorry—public acceptance of the sentences. There have been too many cases in this country where the public has been angered and upset by what they see as inappropriate and inconsistent sentences. New Zealand First does not have a problem with the Sentencing Council, but we will take this to the select committee and we hope that it will be debated there. We hope to see whether the evidence is there to support it, but at this stage I am comfortable with the notion that five esteemed judges should sit on that council. We support the bill going to the select committee, and we will deal with the rest from there.

Hon TAU HENARE (National) Link to this

I raise a point of order, Madam Speaker. We have a bit of an impasse here. We have a Minister in the House who does not seem to be aware of what is supposed to happen. With that, surely the vote goes back to the status quo. Nobody is here to move that that bill go to a particular select committee. I think that is an absolute shock. It is shameful that nobody is here to do his or her job properly, considering a Minister gets $200,000 or $300,000 a year as a ministerial salary.

Hon PAREKURA HOROMIA (Minister of Māori Affairs) Link to this

I move that the Criminal Justice Reform Bill now be read a first time. At the appropriate time I intend to move that the bill be referred to the Justice and Electoral Committee.

Hon TAU HENARE (National) Link to this

I raise a point of order, Madam Speaker. How can the bill be read a first time when we have just finished reading it a first time? That was the motion. The motion on the floor was to read it for the first time, and then there needs to be a motion to send it to the select committee. I am not sure where the Minister has been, but we have just finished the first reading and now he should get up and move that it be sent to the appropriate select committee.

Hon PAREKURA HOROMIA (Minister of Māori Affairs) Link to this

I move, That the Criminal Justice Reform Bill be referred to the Justice and Electoral Committee. referred to Justice and Electoral Committee