Ardern Jacinda: Objectionable Publications and Indecency Legislation Bill — In CommitteeText is incorporated into the Bound VolumeArdern Jacinda: Objectionable Publications and Indecency Legislation Bill — In Committee[Sitting date: 31 March 2015. Volume:704;Page:2765. Text is incorporated into the Bound Volume.]JACINDA ARDERN (Labour): I did have a couple more comments I wanted to make on Part 1 so I will make a quick call on those. Before I sat down I started to talk a little bit about clause 7 of the bill. This was the clause that makes very specific reference to repeat offences having the presumption of a term of imprisonment attached to them. The reason I wanted to speak to this is because there was some discussion obviously at the Justice and Electoral Committee over the increasing use of giving much more prescriptive guidance to the judiciary around expectations of sentencing and whether or not this was considered a good or bad thing. The general view seems to be that actually leaving sentencing to the discretion of the judiciary should be our presumption as legislators.However I do think that there is room for a category of offences where we know there is a particular pattern of behaviour where there is a bit more understanding of the psychology of this kind of offending and I think that for anything related to child sex offences there is some specific knowledge base behind that type of offending. Certainly that feeds through into at least the treatment plans that seem to sit within our corrections system around the idea that there are certain patterns of behaviour that are perhaps more predictable than other forms of offending. I would be very interested and if I am wrong happy to be corrected by the Minister of Justice on that but that is generally the sense I have got since holding various portfolios in this area. So there seems to be a comfort at least with saying: “Well if you see a pattern of behaviour where you have repeat convictions we do think that therefore it requires an escalation.”—that escalation being a presumption that there would be a particular sentence applied to that individual.The way it is set out in the legislation is to state under new section 132B inserted by clause 7 that it applies “only to an offender who (a) has been convicted of and is to be sentenced in respect of a specified publications offence committed after the commencement of this section … and (b) before the conviction for the repeat offence was entered had been convicted of 1 or more specified publications offences committed before or after that commencement.” The issue that I wanted to raise though is whether or not there was any discussion given to whether or not a repeat offence could instead have actually been an aggravating factor at sentencing rather than having that presumption around imprisonment be so expressly stated in the legislation. That probably would have given a greater amount of discretion to the judiciary to make a decision as to whether or not in their minds it was appropriate that a term of imprisonment be used for that second offence. I do not know whether or not that was something discussed or considered by the select committee. Obviously the Sentencing Act has a range of aggravating factors and it could have perhaps been specific to offences under this law that that could have been added as one.I am also interested to know how many repeat offences have been committed already. If we had this legislation how many times would you have had someone who would fall under this criterion who has not been given a term of imprisonment and therefore would be likely to have been had this legislation existed. I am always interested to know whether or not we are—[Interruption] Sorry what was that?Clare Curran: Very low recidivism.JACINDA ARDERN: I am hearing that it is a very low recidivism rate which is the general rule of thumb for these kinds of crimes. So because there is a low rate of recidivism I would be interested in how many occurrences we have seen where someone has come before the court for a second time and has not been given a term of imprisonment. My assumption would be that if it was a repeat offender that would be likely to have been the case anyway. So are we legislating for something that actually has not been a problem or have there been some cases where that second offence has not been met with a term of imprisonment? I am just interested to know the context.The next issue I am interested in is given that again we are talking about a very specific set of types of offences we do know that relative to other types of offending there does seem to be a relatively high success rate for treatment programmes. Was any discussion had at the select committee around agreements memorandums of understanding or what have you between the Ministry of Justice and the Department of Corrections around ensuring that if there is a repeat offence and that if there is the presumption of a term of imprisonment there is also a presumption that there would be an appropriate Department of Corrections - led programme attached to that person’s sentence? We know that there are a number of programmes. They are lengthy programmes and sometimes scheduling of those programmes is an issue depending on the length of sentence. But it would seem to me ridiculous to have a regime where we say “Look we’ve got a repeat offender. They weren’t in prison the first time and obviously haven’t addressed the causes of their offending.” but not to therefore have something that also comes in and says “Well if we’re giving a term of imprisonment the expectation is that there would be treatment attached to that as well.” Obviously by and large in corrections you do see that kind of planning but I think if we are talking about repeat offenders it is particularly important.The final point I want to make in Part 1 still relates I think to clause 7. The explanatory note talks about the exceptions to when an offender must be sentenced for repeat offences to a sentence of imprisonment. The exceptions it says are: “unless the court considers that the offender should not be so sentenced having regard to the particular circumstances of the repeat offence;”—so there is some discretion there obviously—“and the particular circumstances of the offender (including without limitation his or her age if he or she is under 20 years of age).” So there is an exemption built in there around the age of the offender if we are talking about a term of imprisonment. What I am interested in and perhaps the Minister of Justice would like to comment on it is why the age of 20 was selected here. In a lot of legislation it is true to say we have a wide-ranging group of ages that are considered to be the age of majority but by and large the age of majority in a lot of legislation is 21—but not in criminal justice. In our criminal justice system as the Minister in the chair well knows it is 17 years of age.Labour members personally do not agree with that. We think it should be 18. New Zealand breaches the United Nations Convention on the Rights of the Child by it currently being 17. It is one of the lower ages compared with overseas jurisdictions but that is the age that tends to be used to distinguish between a youth and an adult. So I am interested that the age that is specified here is 20 years of age. I am interested in the rationale for that. It seems inconsistent. I am not advocating that this law should say 17. I would advocate 18 perhaps but 20 to be honest seems odd and it seems an “out there”. There might be very good reason for that—someone who was on the select committee might be able to give me some justification for that—but at the moment I would say that it strikes me as being a bit of an “out there” and a bit of an anomaly. And there is another section of the bill where I think there is a similar age issue but I am going to resume my seat in the hope that the Minister might be able to respond—Hon Ruth Dyson: Don’t hold your breath. She’s not on to it tonight.JACINDA ARDERN: —I am ever the optimist—to answer some of these questions. Thank you.