Kuriger Barbara; Webb DuncanPart 5 Amendments to Sentencing Act 2002CHAIRPERSON (Barbara Kuriger): Members we now come to Part 5 and this is the debate on clauses 36 to 38 Amendments to Sentencing Act 2002" and Schedule 4. The question is that Part 5 stand part.Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you Madam Chair. I'd like to talk first to the Sentencing Act amendment and this is actually quite a surprising amendment because there's a pretty basic concept with sentencing that the conduct and the aggravating factors have to bear a rational relationship with a sentence. You'll see that section 9 of the Sentencing Act which is being amended is the list of aggravating factors. So it becomes an aggravating factor that at the time of the offending the participant was "in an organised criminal group"—a gang—and that's it. It's important to note what's being replaced. What's being replaced is that they were involved "in an organised criminal group" and that it had a connection with the offending. Now that makes perfect sense because if you're in a gang and the gang goes and does a robbery that is aggravated and absolutely you should have a more serious offence because you've been part of an organised criminal group doing organised crime. That's what the law is at the moment. Now—and if I've got this wrong Minister I hope you'll correct me—if you're a gang member and you drive carelessly and crash your car the judge has to give you a harsher sentence because you're a gang member because that's an offence—right? Careless use is an offence—no rational causal relationship between gang membership and the aggravating factor. Now my amendment marked "l"—I still don't like it but I think that it would be an improvement if my amendment marked "l" was adopted which essentially says let's at least get rid of the minor offending. Let's at least get rid of disorderly conduct or whatever that minor offending might be because if we're interested in serious offending—let's say it's an aggravating offence. If you're a gang member and you've been convicted of a serious offence as defined in this piece of legislation—because we've set out what serious offending is. It triggers a whole lot of stuff. So if we're going to say "OK if you're a gang member it's aggravating when you do serious offending because gang members do serious stuff." that would make a lot more sense because just remember what we've got at the moment. There is no rational connection—there doesn't have to be a connection by definition—and this is the wider point about this legislation. It's the criminalisation not of the conduct of gangs but of being in a gang. It's making it criminal to be in a gang and that's problematic. So what my amendment "l" would do would be to say "Well look at least restrict this to serious offending." and not to driving offences and not to regulatory offences health and safety Act offences—who knows? There are all kinds of offences under other Acts which gang members might be liable to be sentenced for and where there are two identical people but one is a patched member the patched member gets a harsher sentence not because of their intent not because of their conduct not because the crime is gang-related but simply because of the patch that they're wearing on their back. Now no one likes gang members in this party but we don't want to distinguish between gang members and non - gang members on irrational unfair unjustifiable and unconstitutional grounds. So that's what this does. That's what my amendment goes some way to fix and I'd like the Minister's response to that."