Chauvel Charles: Sentencing (Offender Levy) Amendment Bill — Second Reading 
Chauvel Charles: Sentencing (Offender Levy) Amendment Bill — Second Reading 
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CHARLES CHAUVEL (Labour) 
: 
 My colleagues on this side of the House have already set out Labour’s position on the Sentencing (Offender Levy) Amendment Bill. I think each one of them has also noted that the establishment of the apparatus to create the sentencing offender levy will come at the expense of the proposal to establish the Sentencing Council. I will devote some time to that issue. 
I think it is a tragedy that we are losing the Sentencing Council. If lawyers in the House thought seriously about this issue they would admit to themselves that one of the things that the common law cannot deliver is certainty of outcome. The reason is that the common law is a judge-made system. It is a system where judges decide cases before them on the basis of the facts and the facts are never the same so perfect consistency cannot be achieved across the system in the way that for example the European magistracy strives to achieve. In that system judges essentially follow a set of rules. In our system we preserve a judicial discretion. I am all for the judicial discretion. It is the way in which judges manage to differentiate between different cases and hopefully try to deliver justice on each individual occasion. 
But it is worth remembering that most jurisdictions that we like to stack ourselves up against—the United Kingdom Victoria and New South Wales spring to mind—have brought into being councils to help standardise the practice of sentencing across their jurisdictions. I could never understand the opposition to the idea of a body that issued guidelines to judges to allow them to do just that in New Zealand. There is no danger to judicial independence in the proposal that was passed into law in the last Parliament. There would be a majority of judges on our Sentencing Council and they would not be appointed by the executive. They would be appointed effectively on the nomination of the heads of bench so we were preserving the principle of judicial independence. 
We were trying to create the opportunity for some sort of central research body that the judges do not have at the moment and that they could draw on so that they could deliver a bit of consistency in the important work that they do rather than relying on the ad hoc guidance that they have to rely on at the moment—some sort of arcane sentencing guideline handed down by the Court of Criminal Appeal in a case that might or might not be relevant to all the facts before them and that might not be readily accessible to the District Court judge or the JP sitting in the court at Invercargill Waitakere or elsewhere. That was the aim of the Sentencing Council. It was a really good idea. 
I listened to Chester Borrows and it was obvious that he had never read the Law Commission’s report on the Sentencing Council. If someone steals a car in Hamilton that person is more likely to go to jail than someone who steals a car in any other part of New Zealand. Members opposite in particular need to ask themselves how as parliamentarians we can expect our fellow citizens to have respect for the rule of law if we do not take steps to deliver equality before the law and uniform justice in this country. Why on earth should it depend on where citizens live in New Zealand as to what their fate should be when they suffer a penalty from our criminal justice system? That is what we abandon by walking away from the Sentencing Council and that is one of the major reasons why a future Labour Government will bring it right back. 
My colleague Jacinda Ardern pointed out another practical deficiency with the abolition of the Sentencing Council and it is one demonstrated by a proposal from the Minister of Justice who is currently in the House—that is his very wise proposal to abolish the partial defence of provocation prompted by the first reading of a member’s bill to that effect from my friend and colleague Lianne Dalziel. The Law Commission recommended doing exactly that—abolishing the partial defence—but it also said that it is undeniable that in many people’s minds there is a difference between a cold-blooded calculated act of mass murder on the one hand and a crime of passion in the moment on the other hand. The fact is that without a Sentencing Council as many of the submissions to the Justice and Electoral Committee pointed out there is no easy way to differentiate between those two scenarios. A sentencing guideline issued by the Sentencing Council for clarity in such cases would have done the trick. That is now not a facility that we can offer to the judiciary or more important to citizens who find themselves before our criminal justice system. Short of some sort of clumsy amendment to sentencing law that would in itself create all sorts of uncertainties that is now beyond this Parliament and that cannot be a good thing. 
The final point I will make on the issue of the Sentencing Council is that I heard an unfortunate interjection from a member opposite to the effect that the Sentencing Council was simply a proposal by the previous Labour Government to give some sort of superannuation scheme to the president of the Law Commission. I do not think anyone ever hears that sort of invective from members on this side of the House about figures such as Jim Bolger or Jenny Shipley. The fact is that the Rt Hon Sir Geoffrey Palmer did more to restore respect for the rule of law in this country than any other Attorney-General or any other person holding comparable office. More than that after he left this place he pursued a very lucrative career in the private sector and he could have kept doing that quite happily but instead he agreed to a much less lucrative offer from the Government to return to public service. He deserves better than the sort of heckling that we heard during one of the speeches from a member opposite who clearly has never been appointed to any position on merit in his life. 
In summary as Sue Moroney said this bill is not in the league of the Sentencing Act 2002 the Victims’ Rights Act 2002 the Victims Charter or the Pay or Stay initiative all of which were initiatives of the previous Labour-led Government that were designed to make a difference to victims of crime. This bill is window dressing and that is proved by the fact that the Minister of Justice has made conflicting claims about the amount of money it will gather in. There was one claim that it would bring in $5 million in the first year and there was another claim that it would bring in something like $12 million over 4 years. 
It would be much better to see the Government making reparation automatic so that when an order was made by the court a victim did not have to go through the process of suing of taking his or her own legal action to try to get the sort of compensation that the court ordered for the victim. It would be much better to see members opposite not running down the accident compensation system so that the vital services provided to victims by that programme were not at risk. If this Government were serious about victims’ rights we would see more of those sorts of measures rather than this sort of pathetic gesture politics.