Franks Stephen: General Debates 
Franks Stephen: General Debates 
[Volume:610;Page:7658] 
STEPHEN FRANKS (ACT NZ) 
: 
 About a year ago—in fact on 22 July 2002—a judge sentenced a man who had seized a women from the road taken her in his car to a public car park raped her and tipped her out of his car bound and naked. The judge was troubled because he was having to look at the new sentencing law and work out whether this odious crime was so odious that it was out of the ordinary enough for him to set a non-parole period. As the judge said rape is odious per se. 
The circumstances of this case were not out of the ordinary for rape but the judge had to deal with section 86 of Phil Goff’s new Sentencing Act which told him he could set a non-parole period only if the offence was “out of the ordinary range of offending of the particular kind.” The judge was obviously anguished that if he did try to set a non-parole period he would simply set up a situation for the rapist to appeal. If the rapist could successfully appeal if he was not seen as a clear recidivist—in other words as long as he was not a clear reoffender—he would be out of prison after serving one-third of his sentence and given the normal rape sentence that would mean this fellow would be out of prison in 2 years 8 months. That was repulsive to the judge’s idea of justice. 
The judge told us what was happening on that date in July last year. He said: “I can only apply the legislation which Parliament passes. I hope that once the political rhetoric dies down”—there was an election on at the time—“and a new Parliament convenes urgent consideration will be given to answering the questions I have posed with greater clarity.” 
A year later on 19 July 2003 the Court of Appeal gave a decision in two more rape cases. The Court of Appeal was also struggling with this notion that it could set a non-parole period only when the offence was “outside the ordinary range of offending of the particular kind”. The judges’ view expressed by Justice Tipping puzzled over what “the ordinary range of offending” might be. As the judges said it involved substantial difficulties of interpretation and application. What is an ordinary rape? They are all horrific—or horrific to someone. They cited the Hon Phil Goff in his greasy introduction of the Supplementary Order Paper to the legislation and set out in about 10 lines the language in which he had introduced the intended effect of section 86. They concluded: “The problem is that section 86 as enacted is not either in its language or in its structure fairly susceptible of that interpretation.” That is the delicate language of the court saying: “Minister you were talking crap.” 
There are two more pages. I will read the judges’ statement: “We end this section of our judgment with a respectful plea to Parliament to revisit section 86 of the Sentencing Act and express itself with greater clarity. We have done our best to discern Parliament’s meaning on the point at issue from the language it has used in the light of the section’s purpose as we perceive it. Major problems still remain with the section in particular with the concept of ordinary range of offending when used with the qualifier ‘of the particular kind’. We can foresee this subject being a fertile source of difficulty for some time to come both for sentencing judges and on appeal.” 
What was the reaction of the Hon Phil Goff? First I shall tell members what he said a year ago. He said that the Act was a huge improvement that the judges’ comments showed that the new law would lead to longer sentences that he believed that a review to clarify was not necessary but that if changes became necessary he would not hesitate to make any necessary changes to the legislation. What did he say a year later—many cases later—when faced with the Court of Appeal’s absolutely clear statement? Phil Goff preferred to pour scorn on me for raising the issue. I first raised this issue with him in a letter. He in effect told me that I did not know the law and that I should read the precedents. He then came back and said: “The legislation like any major piece of legislation will be subject to review. We need time to see it settle in.” 
Hon RUTH DYSON (Minister for ACC) 
: 
 The last time I had an opportunity to contribute to the general debate I did as I am going to do now—dedicate my contribution to the dead wood “Blues Brother” Maurice Williamson. My support of Maurice Williamson’s integrity and honesty clearly did not have an impact on the National Party although I have noticed some wavering on behalf of its future leader Simon Power. In fact I hold out some hope for that young man now. I think he has got a future ahead of him. There is a clear vacancy. I think Simon Power should put aside his natural modesty and humility and say as the previous Governor of the Reserve Bank Don Brash has said: “Move aside Bill; it is time to go.” 
What makes me more convinced than ever that it is time for Bill English to go is the absolute desperation that he has shown in resorting to something that I never thought he would do. I had always thought of Bill English as a “Kiwi Keith” type of person until recently. He is clearly not. Mr English has behaved in a gutter politics way and that is a very civil description of his behaviour; he has behaved in a way that I think totally discredits him and totally discredits the once-great National Party. He will now be remembered if anyone does ever try to remember him as one of the most irresponsible politicians New Zealand has ever had. There is never an excuse to resort to divisive gutter politics in my view. Too many people in New Zealand know politicians for them to be able to get away with that. Even in a large country one should not do it but in New Zealand not only should one not do it but one cannot get away with it. 
When Mr English said that the country should not trust Maori I want to know how Georgina te Heuheu felt about it. How did Georgina te Heuheu feel about being referred to in that way by her current leader? This is an issue that we have to get right. If National members do not want to be part of the solution—and frankly I recommend that they have another bit of a think about that—then the least they can do is not contribute to the problem. This is a grown-up serious big issue and I think some of those members particularly those who played a part in a previous Government should understand that and should give themselves a bit of thinking time so that they can come up with a proper answer that maybe will not fit on a billboard but will fit in New Zealanders’ hearts and minds. 
Bill English has been just extraordinary. Trying to get a fix on his position is like trying to pick up mercury with chopsticks. Every time one gets it in the corner of the bowl it flicks right over the other side. Mr English started off by saying on the website: “The Government must legislate to confirm Crown ownership of beaches foreshore and seabed. This is what National would do.” That was a strong confident statement from the current leader of the National Party. Then in a press release not very long after he said that National was working to ensure that the remaining foreshore and seabed were safeguarded for all regardless of race by means of legislation to preserve exclusive Crown title What is the difference? Quite a lot as my colleague John Tamihere very strongly explained during his contribution to this debate. So it is one standard of citizenship for some not for all and not even for National Party members. 
Simon Power whom I referred to earlier as—I am confident of it now—the future leader of the National Party has been having a bit of a tussle with Mr David Carter. Simon Power said and I think it certainly reflected the views of his constituents from Feilding: “We must all be allowed full and free access to our beaches and lakefronts and to the seabed.” 
His constituents want to be able to go down to Foxton Beach Himatangi Beach or the Manawatu River and get on to the beach and the river. Whereas David Carter said that our public access group which does exactly what Mr Power referred to was just a “stalking horse for this Government to nationalise private land for public access”. Well I think Mr Power should talk to Mr Carter because he is on a different planet from him and I think the oxygen is of better quality on the planet where Mr Power resides. 
Not only did Mr Power disagree with Mr Carter but then Bill English started contradicting himself again. He said that he wanted all the coastline to remain with the Crown then said “as long as it didn’t disturb private landowners’ rights”.