Borrows Chester: Land Transport Amendment Bill — Second Reading In Committee Third Reading 
Borrows Chester: Land Transport Amendment Bill — Second Reading In Committee Third Reading 
[Volume:629;Page:1918] 
CHESTER BORROWS (National—Whanganui) 
: 
 I rise to speak to the Land Transport Amendment Bill and wish to acknowledge those around the country who will be most affected by the outcome of this debate and the subsequent vote: those people who have already lost their P-class licences—and therefore their livelihoods—and their families. 
Years and years ago those people as kids gave way to natural impulses were prosecuted and punished. They were charged under section 134(1) of the Crimes Act 1961. Those people having put all that behind them 20 30 or 40 years later find themselves being refused a licence and not only is that the case but they are lumped in with a bunch of serious criminals and sexos. Those people now have to go through the pain of having to differentiate themselves from those other offenders and of having to go back and relitigate the rights and the wrongs of the circumstances that led to a conviction in the first place. Those are circumstances that nobody today would raise an eyebrow to except for the fact that they were actually prosecuted for them. They have to justify that to family members employers and community members. 
I will give an example from my own electorate. A school bus driver a person who is held in very high regard had sex with his girlfriend 42 years ago. He was 16 and she was nearly 16. They got home late mum found out interrogated the girl and called the cops. The young boy was interrogated by the police and pleaded guilty to a charge of what we then called unlawful carnal knowledge. He received a small fine of about $100. He has never offended again in any way whatsoever and has now been married to that girl for over 40 years and he has children and grandchildren. He is a very community-minded person and he lost his job on 16 January this year. There are many many others just like him. 
The very obvious factor that causes huge unfairness is that with time and I would say the lowering of standards—others would say the adoption of policy that confronts real life—the courts no longer deal with those sorts of liaisons between young people by way of prosecution. In fact when the police have brought a charge similar to that under section 134(1)—a boyfriend/girlfriend situation—even as far back as 1990 the courts sought non-judicial resolution of the charges. 
The passage of time is very important because changes to the law including the introduction of new legislation that affected the provisions of sections 134 and 135 of the Crimes Act are significant. It is sections 134 and 135 that are specifically mentioned in clauses 3 and 4 of this bill and those sections certainly affected the way those offences and sex offending in general were investigated and prosecuted. Prior to the 1985 introduction of the terms for offences such as sexual violation and unlawful sexual connection an offence pursuant to section 134(2) included all the non-penile penetrative sexual assaults and acts and oral sex. So an effective rape with fingers bottles or other implements was charged under those two sections—134 and 135. Those offences are now included in the offence of sexual violation which is punishable by up to 20 years’ imprisonment. So there was a situation where somebody who committed an offence with say a bottle on a women was charged with indecent assault prior to 1985. After 1985 the charge was one of sexual violation. Today the offence would be eligible for a penalty of up to 20 years’ imprisonment. So one is not comparing apples with apples. If one looks back and says that if someone received only under 12 months’ imprisonment the offence was not really very serious the chances are that one will see it was a very serious offence at the time. 
Another point is that just looking at the section against which the conviction was entered does not tell one about the circumstances of the offence either. An indecent assault may be anything from an unwanted kiss to in the days prior to 1985 where most of these cases come from full penetrative sex. Looking at the section of the Act it does not tell one anything. 
I can tell members that looking at the sentence does not necessarily tell one anything either. I was part of a group of people who arrested somebody for rape in the early 1980s. It was a rape that occurred when two men took a girl from a party to the Maitai Valley in Nelson. One held her down while the other one had sex and then they swapped over. They did that twice. They were convicted of rape. One offender received 3 years’ imprisonment which was a pretty reasonable sentence in those days. The other offender was sentenced to 9 months’ periodic detention—9 months for rape or for what we would consider to be aggravated rape. Nowadays the minimum sentence would be at least 8 years’ imprisonment. The guy who got 9 months’ periodic detention would expect to get somewhere between 6 and 8 years’ imprisonment and the other guy would get 12 years. 
One cannot make a blanket assessment by looking back at penalties or at the sections against which convictions were entered and decide just how serious the crimes are. An offence that somebody received 6 months’ imprisonment for in 1985 would easily incur a sentence of 6 to 8 years today and the Government says that those people are OK to drive taxis and school buses. 
Hon Harry Duynhoven 
: No it does not say that. 
CHESTER BORROWS 
: Well because the charge I referred to was one of rape that is quite right. However if a person had been charged with indecent assault and had received a penalty of less than 12 months’ imprisonment even though the offence may well have involved penetration it would be considered to be a very serious sexual offence today. If that person was convicted of only a section 134(2)(a) (b) or (c) offence then that person could drive a taxi under Supplementary Order Paper 13 in the name of the Hon Harry Duynhoven. I am sure we do not want to expose the people who travel in our taxis today to that. 
Some of the circumstances that would be available though are circumstances that are held for instance on archive. I wonder when someone is making an application to regain his or her P-class licence how much of that will be available. If all the person has to do is to admit that he or she was convicted at some time in the past of such an offence who gets to work out what those circumstances were? Will the circumstances be obtained by way of an application to the police with the consent of the applicant or will it be the case that the applicant’s view of events with the benefit of hindsight and the minimisation that comes with hindsight means that there will not be any other check by the director? We do not know that. I guess it may be over to the director. 
My point is this: over time the investigation and prosecution of sexual offences have changed significantly. Before 1985 it was a very difficult thing even harder than it is today for women and men—more especially women—to make complaints of a sexual nature. In fact the old detective’s manual from those days which Mr Deputy Speaker the Hon Clem Simich may remember advised detectives to be very wary of a woman who made a complaint because complaints were easy to make and hard to defend. It also invited detectives to consider for instance that the woman may well have brought the matter upon herself by the clothing she wore or where she managed to place herself at certain times and in certain company. 
 Looking back on it that seems to be a really horrific thing but we have to remember that those were the days before the 1985 amendments to the Crimes Act and the amendments to the Evidence Act. So in those days we also had situations when for instance a complaint of rape was made but because the complainant was exposed to interrogation without the protections that are involved in the law today—for instance regarding cross-examination on his or her sexual history with other partners—pleas were often mitigated down and a charge that was initially investigated as rape would be laid under section 134(1) as unlawful carnal knowledge. 
In conclusion the only safe way of differentiating the historical offending of those worthy of assistance to reapply for their licences from that of those who are unworthy is to look at the circumstances of individual cases independent evidence of which has long gone. The second-best way is to distinguish between those who were sentenced to a term of imprisonment and those who were not. Supplementary Order Paper 13 would allow those imprisoned for sex offending to drive young women late at night alone and that is rubbish. National says that those commercial passenger drivers who were convicted as young teenagers for what we used to call consensual unlawful carnal knowledge—we are now resigned to that as being inevitable—should be allowed to maintain their P-class licences as long as they did not receive a sentence of imprisonment at all because the worst offenders went to jail. 
Amendments recommended by the Transport and Industrial Relations Committee by majority agreed to.