Parker David: Sentencing (Offences Against Children) Amendment Bill — First Reading Second Reading In Committee Third Reading 
Parker David: Sentencing (Offences Against Children) Amendment Bill — First Reading Second Reading In Committee Third Reading 
[Volume:651;Page:686] 
Hon DAVID PARKER (Labour) 
: 
 We all abhor child abuse and neglect. I do not need to say that again; it has been well canvassed by others. We acknowledge that New Zealand does have a serious problem with child abuse and neglect. Some countries that we would like to compare ourselves with are as bad as us but others that we would also like to compare ourselves with do better than us. Whether or not they do we certainly aspire to do better than we are doing in New Zealand. 
As has been said we will not oppose the Sentencing (Offences Against Children) Amendment Bill but it is important to put on the record for the benefit of the courts just how much of this bill is window dressing and why it is being put through. National raised expectations during the election campaign that it would find quick solutions to these somewhat intractable problems so National thought it necessary to introduce this face-saving legislation into this urgency motion and put it through under urgency. The Hon Simon Power is a person who honours more than most National members the traditions of Parliament and puts significant legislation through to select committees particularly where it affects the rights of people. Of course criminal justice legislation does that. The very fact that this bill is not going to a select committee shows that it is not of very much significance. So does the explanatory note of the bill which as much as admits that all the factors set out in the bill are already taken into account in sentencing. 
The only thing I would disagree with is on page 5 of the explanatory note which states: “However as the factors that the court will be required to take into account are already usually taken into account under the current regime we do not believe that this impact will lead to any substantive delay in courts.” because it will not change much. The explanatory note says these factors are “already usually taken into account”. That is wrong. They are always taken into account now because the law says that they “must be” not that they “may be”. I think it is important to put on the record how new section 9A inserted by clause 4 of this bill compares with section 9 of the current Sentencing Act. Those aggravating factors must be taken into account under the existing legislation as is made clear in section 9(1) which states: “In sentencing or otherwise dealing with an offender the court must take into account the following aggravating factors to the extent that they are applicable in the case:”. There is no discretion; the courts must take aggravating factors into account. 
If we look at the first of the so-called new aggravating factors that are provided for in new section 9A(2)(a) in clause 4 of the bill we see the courts must take into account “the defencelessness of the victim”. The comparable section in the existing Act is 9(1)(g) and it reads that an aggravating factor that must be taken account is “that the victim was particularly vulnerable because of his or her age or health or because of any other factor known to the offender:”. Clearly that matter is already covered by section 9(1)(g) of the Act and the new provision does not add anything to it. New subsection 9A(2)(b) in the bill says “in relation to any harm resulting from the offence any serious or long-term physical or psychological effect on the victim:”. Section 9(1)(d) of the existing Act already says the court must take into account as an aggravating factor “the extent of any loss damage or harm resulting from the offence:”. That is very broad and it clearly already covers serious or long-term physical or psychological effect. 
Section 9(1)(e) of the current Act also requires that the courts take into account as an aggravating factor any “particular cruelty in the commission of the offence:” so nothing new is introduced by new section 9A(2)(b) in clause 4 of the bill. New section 9A(2)(c) purports to say that “the magnitude of the breach of any relationship of trust between the victim and the offender” must be taken into account. Of course that is already covered by section 9(1)(f) of the current Act. It states that an aggravating factor that must be taken into account by the court is “that the offender was abusing a position of trust or authority in relation to the victim:”. Nothing is added by the new subsection. New section 9A(2)(d) covers “threats by the offender to prevent the victim reporting the offending”. That is clearly covered by the existing provision in section 9(1)(a) of the Act which requires the court to take into account “actual or threatened violence or the actual or threatened use of a weapon:”. That is clearly covered there. The last aggravating factor in the new legislation in new section 9(A)(2)(e) is the “deliberate concealment of the offending from authorities.” Again that is covered by section 9(1)(i) of the existing Act which talks about premeditation etc. 
Judges will be scratching their heads about this legislation for two reasons. The first is the idea that without any legislation judges would fail to find offending against children to be worse than offending against people who are not defenceless. That is nonsense. Judges are humane people they are wiser than most of us and they see the full ambit of crime. They already know what constitutes a more serious offence than other offending. I am confident that even without any legislation the interests of children would be taken into account by judges when sentencing offenders. As if that were not enough we already have law that makes that absolutely clear because this is an area where it is important to make sure there are clear signals to the judiciary. That is why the legislation that was promulgated by the Hon Phil Goff and passed by this Parliament in 2002 already covers every one of the factors that are the subject of this bill. That is why I take issue with members on the other side of the House who are pretending that this bill somehow advances the protection of children when it clearly does not. 
I think if any further advice is needed on that it is provided by Professor Geoff Hall through the newspapers because he has not had the opportunity to do so through a select committee hearing. Once again I repeat that he said this legislation although harmless is also worthless and that it adds nothing to the current law. For the record Professor Geoff Hall is if not the leading academic then one of the two or three leading academics in this area of the law. He has experience that spans 4 decades. He is the author of the leading text in this area  
Hall’s Sentencing 
 and he has looked at this legislation and said unambiguously that it adds nothing to the law. 
Having said that I say this bill is harmless and we will not be opposing it on this side of the House.