Xu-Nan Lawrence; Penk ChrisGANGS LEGISLATION AMENDMENT BILLIn CommitteeDebate resumed from 6 August.Part 5 Amendments to Sentencing Act 2002 (continued)Dr LAWRENCE XU-NAN (Green): Thank you Madam Chair. I want to first pick up what part of my contribution in the previous session around—which the Minister didn't have the opportunity to clarify—the greater implication of Part 5 by including gang affiliation as part of aggravating factors in section 9 of the Sentencing Act particularly in terms of the interconnectivity of the Sentencing Act with the Crimes Act and certain crimes that may have no affiliation or no relations to the gang affiliation being unfortunately attached or implicated as a result. One of the things I mentioned as part of that just very briefly was on section 220 of the Crimes Act in terms of theft in a special relationship. The other thing I mentioned around the Crimes Act is section 66 in terms of party liability. I want to sort of expand on that first around party liability which is some of the instances that we have seen previously when people—and in this case when we're looking at potentially the unfair treatment of wāhine Māori in this particular legislation because if we're looking at cases such as the R v Ahsin case in 2013 where wāhine Māori had been made accessory to certain acts that had been done by their spouses. In this particular case under the requirement and the interpretation of section 66 of the Crimes Act they were liable for the crime as well under party liability. In this particular case what you will see is that because of the aggravating factor that will be introduced as part of section 9 of the Sentencing Act wāhine Māori may be unfairly targeted as a result of this. I just wanted some clarification from the Minister or the officials on whether any modelling has been done on the potential to increase the sentencing and also increasing the chance of wāhine Māori in our prison system as a result of this introduction. Now this is particularly important since for the longest time we have been talking about in this House the fact that wāhine Māori and Pasifika women have been unfairly represented in our prison system. So I would like some clarification from the Minister regarding that. The second part that's also a consideration to this is I would really like the Minister to clarify or consider another scenario where gang affiliation may be unfairly treated if it's included as an aggravating factor. That is when we're looking at section 201 of the Crimes Act regarding infecting with disease. This is particularly the case when we're looking at the R v Mwai case from 1995 where we are looking at people who either intentionally or accidentally if we're looking more broadly under a breach of criminal nuisance in section 145 which is a breach of section 156 of the Crimes Act which is Duty of persons in charge of dangerous things". Where a person intentionally or accidentally let's say infects someone with a sexually transmitted disease again those kind of things are criminally liable actions and people can be criminally charged but the gang affiliation is a bit of a stretch in terms of having that being an aggravating factor under section 9 of the Sentencing Act.With all of these sorts of scenarios these are scenarios that have happened in Aotearoa New Zealand. These are not things that are just hypothetical; these are actual cases. So when we are looking at this what is the Minister's consideration in terms of the potential increase in unfair treatment of gang members or those who are affiliated with gangs when the crime itself actually has very little to do with gang affiliation. So if the Minister wouldn't mind clarifying section 220 of the Crimes Act which is theft in special relationships; section 66 which is party liability; section 201 "Infecting with disease"; and should the Minister wish to also respond section 145 "Criminal nuisance". Thank you.Hon CHRIS PENK (Minister for Building and Construction): Thank you very much Madam Chair and I thank the member Dr Lawrence Xu-Nan for his intelligent and articulate contribution. I think the two different legs of his questions can be answered substantially in the same way. Taking the second one first around those different provisions within our criminal law that he sees may be unlikely to be connected with the fact of gang membership I think that the Government's view is that it's appropriate for the judge not to be unduly limited in deciding that extent of connection when she or he is making that that decision and of course in relation to the first point that applies equally where we say that in relation to the proposal that wāhine Māori might be disproportionately affected. Of course the member is right to raise an important question for our society and indeed our criminal justice system more generally. But at an individual case level the principle of equality before the law as a key aspect of the rule of law is such that these demographic factors should not be taken into account by the judge when making a decision on these matters at sentencing."