Ardern Jacinda: Sentencing (Offender Levy) Amendment Bill — Second Reading 
Ardern Jacinda: Sentencing (Offender Levy) Amendment Bill — Second Reading 
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JACINDA ARDERN (Labour) 
: 
 I am pleased to take a call on the Sentencing (Offender Levy) Amendment Bill and to follow on from my colleague Chester Borrows. He was a very good chair of the Justice and Electoral Committee through the process of considering this bill although I would counter the assertion that what we on this side of the House are raising today is mere quibbling. I disagree with that point and hope to do so by expanding on a few points in my speech. 
But first I go back to the Sentencing Council but only very briefly because there are more substantive matters that this bill raises. It was the funding from the Sentencing Council that was used to set up the administrative arm of this bill because it will have a hefty cost to administer. I disagree with the select committee chair’s view that the Sentencing Council was in any way trying to circumvent or take away what is ultimately a power of Parliament in guiding or at least in setting the bounds of sentencing. We have already seen some of the areas in which the Sentencing Council could have had a useful role. More recently that was through the Crimes (Provocation Repeal) Amendment Bill which was considered by the same select committee. 
All of the committee members heard from organisations in particular from organisations like Women’s Refuge and their concerns that the removal of provocation would impact on some of the people they deal with on a day-to-day basis. There was a view expressed that relying on self-defence did not take into account some of the intricacies or some of the details around battered woman’s syndrome and that self-defence sometimes implies an immediacy that is not often the case when a battered wife is responding to a violent situation in her own home. They themselves acknowledged that it was something that needed greater thought. It was an area that perhaps even a Sentencing Council could have assisted with in giving guidance around those mitigating factors when laying charges and when responding with sentences. 
Paul Quinn 
: Whose submission was that? 
JACINDA ARDERN 
: I think that is a worthy point to raise in the context of this bill. I would be happy to pull out the transcripts for my colleague Mr Quinn who seems unable to recall that. It was the National Collective of Independent Women’s Refuges I believe that raised that particular point. 
But in going back to the bill itself I wish to restate for the benefit of members on the other side of the House as I did in the first reading that no one disagrees that it would be hugely beneficial to give greater support to victims in our justice system. That is not a premise with which we would disagree. The question then comes down to the policy mechanisms we use to do that. Although we are supporting this bill because we support the principle we have grave reservations over whether it is the most effective way to achieve that goal. The Justice and Electoral Committee did its best to deal with what it was given but at the very core of this bill there are some large flaws that were just not within the scope of the select committee to change. I will cover some of those. 
Under the current sentencing regime the Sentencing Act 2002 there is a requirement already under the court to impose a sentence of reparation unless the court is satisfied that such a sentence would result in undue hardship. There is a really important reason why that has been made explicit within the legislation. There are two factors. The first is that it does not unnecessarily raise expectations for a victim as would a judge awarding large reparations that would obviously be unable to be paid by that particular person. The other important point about reparation is that it is direct. It is a direct payment to the victim involved in that crime from the perpetrator of that crime. But that is something this offender levy does not achieve; it is in no way direct. So I dispute with anyone who tries to claim that this is somehow creating greater accountability from an offender to a victim. 
One point I would like to raise is that I see reparation as what our primary focus should be yet the offender levy in many ways could overtake reparation. I will refer to the Law Commission’s point on this because I think the commission articulates it best when it states: “Whatever the range of offences to which it is applied the financial circumstances of many offenders already impact on the making amount and payment of sentences of reparation as well as fine collection and introducing a levy would exacerbate this. It would be possible to set the amount of the levy at such a low rate that it would not make any or would only make a small discernible difference to the offender’s financial situation. However that could clearly reduce the amount of revenue that could be raised.” 
The report goes on to state: “There would also be issues about whether the levy should have priority over reparation and fines or vice versa.” The Government has made the decision that reparation will come first. But judges are taking into account the ability to pay reparation; on the levy they are not. On the levy there is no discretion for a judge to make a decision as to whether someone is able to pay. So where does that leave us? In a sense if the judge did want to take into account the ability to pay has already told offenders they must pay $50 he or she could feasibly start discounting that from the amount he or she will award in reparation; or there might not be any reparation at all awarded because in some offenders’ circumstances the judge will think it unlikely they would pay in any case. So I think we have not prioritised accurately between reparation and levies particularly given that reparation is much more direct for the victim and is much more accountable. I think that it should take priority over any of those other payments. The evidence bears this out and the direction of the select committee discussion bears all of these points out as well. 
The select committee spent a lot of time talking about the administration cost of this scheme and for good reason. If the ultimate aim is to put more money into the coffers of victim support I think it is important that we try to reduce the amount of money we spend chasing the $50 from individual offenders. I have read reports that state it would take 30000 offenders to pay the levy in order to break even in this scheme which to me is quite significant. We have also seen calculations that say that half of the amount collected will go to administration costs. Going back to the Sentencing Act one of the reasons a judge currently takes into account an offender’s ability to pay is to try to mitigate against that fact—to try to reduce the number of times someone is being chased who absolutely does not demonstrate the ability to pay that particular fee. 
Let us reflect back. I am sure my colleagues will spend a lot more time talking about the administration cost side of things. I want to spend a little bit of time reflecting on the changes that the select committee made because I have not heard them discussed in any great length. One of the issues the select committee discussed was whether the levy should be imposed for each offence—because some offenders will be coming forward with a whole range of offences—or whether it should be just for a single sentencing event. The select committee’s decision was that in order to reduce the chances of non-payment which would then undermine the scheme it would be best to award the levy only per sentencing event. Again there is an acknowledgment here in that decision that chasing around fees that will not be paid would undermine the scheme. That is one of the points we have made clearly the whole way through. 
The second issue we looked at was whether young offenders should be picked up by the scheme. The young offenders are those who originally would go through the Youth Court but who may due to the nature of their crime or their offending be referred to the District Court. That amounts to about 270 young people per annum. Again the decision was made that that would only increase an already exceptionally high administration cost for the scheme and therefore the decision was made not to exclude those young people. I would be very interested to see whether we can get a breakdown of the success of payment across that group of people as well. 
The third issue we discussed in select committee was the size of the levy. As the Law Commission has already pointed out shifting the size of the levy again might have impacted on whether it was paid at all so we left it at the charge of $50. Finally we looked at the sale of confiscated vehicles and made the decision that if a confiscated vehicle was sold then the proceeds could go to pay off fines reparation and the levy. All of that discussion at select committee from both sides of the House demonstrates where all the concern in this debate lies: the heavy amount of emphasis on the cost of administration and the fact that accountability is removed from what I think is a well-functioning reparation scheme for victims. We need to do more but I seriously question whether this bill is the answer.