Fairbrother Russell: Organised Crime (Penalties and Sentencing) Bill — First Reading 
Text is incorporated into the Bound Volume 
Fairbrother Russell: Organised Crime (Penalties and Sentencing) Bill — First Reading 
[Sitting date: 01 July 2008. Volume:648;Page:17085. Text is incorporated into the Bound Volume.] 
RUSSELL FAIRBROTHER (Labour) 
: 
 This is an interesting area of the law. Section 98A of the Crimes Act 1961 is an important section that has not been properly utilised to date because of the limitations on gathering evidence. Section 98A reflects somewhat the law of unlawful assembly but it differs in that criminal groups—which is the correct title rather than “gangs”—act with greater subterfuge than those at street level that are identified by the offence of unlawful assembly. So although the rudiments of the two offences—unlawful assembly and organised criminal groups—are fairly similar the areas in which they apply are very dissimilar. 
In the time that I was at the criminal Bar— 
Simon Power 
: Those were the days! 
RUSSELL FAIRBROTHER 
: Those were the days of good income and a lot of freedom. But anyway I appeared frequently in many of the High Court’s jurisdictions in the North Island and I had many encounters with serious members of gangs from the highest echelons to the lower echelons. It always struck me that it was never the masterminds of the criminal activity who appeared before the court. Whether it was a High Court class A or class B drugs trial or a District Court class C cannabis trial it was invariably the lower ranks of the gang hierarchy who took the blame for the serious ranks. So the law relating to criminal groups is important in our country because these groups are not the ethnic gangs referred to I think by the last speaker but rather groups of professional criminals. These groups transcend questions of ethnic association and forms of that. We are talking about gangs that probably are transnational and overseas influenced and we are talking about techniques that people would see on a TV screen but would never believe happen in New Zealand. 
I want to recount two examples. I have appeared in many trials involving undercover operations—sometimes for 6 months. I have appeared for the police who were involved in those undercover operations and were in strife themselves and I have appeared for the criminals and people charged with offending. Time and time again those operations—which cost hundreds of thousands of dollars and a huge amount of man-hours and took police officers off the street while they conducted the surveillance—picked up the runners the shoppers and the sellers but never people of wealth because the money had always disappeared to regions unaccounted for. However in contrast I have also appeared for business people who were charged with possession of a serious drug for the purpose of supply who used the purpose of their business and excuses attached to that as some form of defence. 
I think what turned the corner for me in my criminal practice and one of the many factors that led me to this place—a very fateful and uncertain decision that was indeed—was a trial I once did in a High Court jurisdiction. I was acting for a tradesman a man whose job it was to work on vehicles and improve the quality of them. He was a very well-regarded man who worked for commercial operators and he happened to have two vehicles in his workshop that came from apparently different sources. He worked on them but they were never uplifted and he was never paid so they remained in his workshop. 
One day the police raided him and accused him of receiving these vehicles of some value and because he could not explain who the owner really was he was charged. Also charged in the trial was another individual of much scruffier appearance and with no clear means of income who was at first appearance a ne’er-do-well. As we conducted depositions in the lower court—and those were the days of depositions I should say—it became apparent to me that my client’s instructions were becoming less certain and he was becoming somewhat reticent. It turned out that the nondescript-looking co-offender in fact had connections to a gang of international reputation. He was conveying instructions to my client as to how my client should instruct me during the course of the deposition hearing. My client of course was a decent person and a decent businessman and did not want to follow those instructions. One night during the deposition hearing he was taken from his home at midnight to a remote spot and threatened with kneecapping unless he released to the gang a vehicle worth $25000 and changed his instructions to me the next morning. 
That was the time when I decided the work I had been doing in the criminal courts was becoming a less than useful function because in this instance the instructions that I was receiving as an experienced criminal barrister were being affected by someone who had a vested interest in the outcome—keeping one person out of jail and getting another person into jail. At that time I decided that gang membership was no longer a destiny for just the socially disaffected and those from impoverished circumstances; gangs that were not necessarily associated with some of the major patches we see in our newspapers were operating in this country at a level that I had not seen or experienced before. 
That is to me the definition of a criminal group and that is why I think it is a good idea that we increase the penalty from 5 years’ imprisonment to 10 years’ imprisonment. One of the many effects of doing that which makes the offence a most serious crime is to bring it into the jurisdiction of police surveillance by modern surreptitious means. Quite clearly the only way to get to organised criminal groups in this country at a level that is effective—not at street level but at a level that is effective—is by way of interception equipment and other means that are made available by increasing the penalty. 
My anecdotal experience was one of the most nerve-racking experiences I have had at the Bar and it certainly woke me up to the way this country was moving in terms of serious crime. I have many other stories that relate to gang life—and I have to say that it has much colour and much interest. I am pleased to say that I have some friendships with serious gang leaders in this country— friendships that I value at the level they are. We certainly do not socialise together nor do we conduct any commercial activity together but the bonds forged from many battles are enduring. I respect those friendships with those people as I think their relationship with me is respected by them at the level they are. 
But for groups at the other level at the level that section 98A of the Crimes Act attacks no one of a moral perspective—of normal moral principles—can form any sort of relationship with these people because they have a different moral code entirely. They use people to an extent not imaginable by most people in New Zealand and they pervert the justice system in a way that would make all of us cringe. They operate at a level of high finance so their material position is much advantaged and they use it in a way that is sinister to say the least. I am aware of criminal groups in this very city that act as financiers and write cheques of considerable amounts to further the criminal group’s purpose. 
These people undermine the structure of our society. They undermine our whole economic system. They develop the black market but worst of all they undermine the lifestyle of you and me—law-abiding citizens who try to live honestly every day. These people live entirely outside the rules and they need to be identified for their criminality. They are not street thugs they are not the people we see in newspapers wearing patches and they are not the sorts of people whom we commonly associate with being gangsters. These are people who live sophisticated lifestyles that many other people would aspire to. Their source of wealth has to be disowned and discouraged and our criminal law should be set upon them. That is why I speak with some enthusiasm in support of this amendment to the Crimes Act.