Paul Tamatha; Penk ChrisTAMATHA PAUL (Green—Wellington Central): Kia ora Madam Chair. Thank you for allowing me to take a call on Part 5 of this bill. My question is related to aggravating factors and I know that we have already covered the aspect that the crime that has been committed might not relate to the offender's membership of a gang. But I do want to dive into that aggravating factor a little bit more and the way that this takes away discretions from the judges who are charged with taking into account the person before them and then giving them a programme of rehabilitation or sentences that deals with the offending that has taken place.My question to the Minister is: why doesn't the Government trust the judiciary to implement the aggravating factor for gang membership that already exists within the legislation and why is the Government choosing to override the judiciary again? Today we had hearings on the three-strikes legislation which does a similar thing in that it provides more instruction to judges about how they need to sentence and deal with different crimes. Again we have this really important separation of powers within our democratic system that separates us and the executive from the judiciary. This takes out the judge's discretion.I'm further concerned that with the un-funding of section 27 reports that our judges aren't going to have an accurate picture of the person before them to be able to give them an outcome that actually addresses their offending and addresses the needs of the victims if there are some in the situation. So how is the judge supposed to take into account what appropriate rehabilitation is needed when they don't have the cultural or background information that they need via a section 27 report? I'm assuming that most people who are in gangs would probably need to rely on legal aid for that section 27 report.But all the judge has got in front of them is this aggravating factor that this person belongs to a gang but doesn't have the reason why this person is in a gang in the first place. We know that that's important context to have because just two weeks ago we had the abuse in State care report which detailed just one of the many reasons why people feel that they need to turn to gangs in the first place.Actually if you look to the report of the Chief Science Advisor to the Prime Minister about minimising gang harm in Aotearoa that adviser says in the report that gangs exist because they perform a function within society. This is all-important context that our judges need to have before them but won't be able to have before them. So that's my first major question which is: is what has led to the major distrust in judges' abilities to provide appropriate sentences? Is it because this Government chooses to prioritise deterrence theory which is effectively that people who commit crime are aware of the sentences tied to the crime that they're committing—which we know is not true?Often crime is motivated by emotions and the situation before the person who commits the crime as opposed to them making a rational decision based on If I do this thing these are the consequences of my actions." That's not the way that crime happens and we had lots of criminologists and lawyers and people that work in the criminal law space that understand that deterrence theory isn't accurate and doesn't work because the people that commit crime and most of the people in prison have got significant mental and cognitive issues. So their literacy is not the same as everybody else. There are significant neurodiversity issues with people that are in prison and their ability to make decisions and weigh up the consequences of their actions is impaired. So that's my first question.Has he seen any evidence at all that making gang membership an aggravating factor at sentencing will help people to exit gangs as well because that's surely the outcome that we all want across the House. We want fewer gang members and we want to make sure that people can exit gangs safely. But what evidence has he seen that longer sentences—which will inevitably come through a bill like this—actually lead to people exiting gangs in the first place?Hon CHRIS PENK (Minister for Building and Construction): Madam Chair thank you. Very briefly if I may I won't engage on the points that were not related to the bill but to the three points that were in relation to the member's contribution. She alleges that we are overriding the judge's discretion; indeed we're not. We're actually empowering choices that they make to decide the appropriate weight to place on gang membership in relation to any individual matter before them.Second she makes a point around deterrence as though deterrence was the only aim of the criminal justice system. It is not. There are various others including prevention which is by way of saying that if members of the public who have committed violent acts are behind bars for the period of time that they are society is a bit safer. Again that's not a sole or exclusive aim of the criminal justice system but it's another one and another one incidentally is rehabilitation. So this Government's approach is that if we have better rehabilitative processes when people are incarcerated then they will have better life prospects including in relation to society and community membership other than by gangs.Finally in relation to sentences I think the member's point was along the lines that there would be an effect on sentencing. But of course again it's back to a judge's discretion in terms of determining the appropriate degree of weight. But Parliament has the ability to provide guidance to judges through the Sentencing Act. That's then applied in individual cases without our interference and that's why we have a Sentencing Act in the first place. I would be surprised if any member of this House would suggest that we shouldn't have any kind of guidelines in the Sentencing Act at all.If I can just return to the points that were made by Dr Duncan Webb previously one of which I missed addressing entirely—that was the amendment marked "p". The point actually for that—and I do want to say it on record because this is important and this could be a matter that judges take seriously going forward in terms of understanding Parliament's intent. In the Government's intent we intend that this legislation be interpreted consistently with the New Zealand Bill of Rights Act (NZBORA). So if there is any question of that in terms of perceived or alleged ambiguity please know that we intend that the bill be interpreted in a way that is consistent and able to be consistent with NZBORA. Finally amendment "l"—"l"  for "lemur"—is provided again by the Hon Dr Duncan Webb. That would have a broader effect than just this bill so we don't propose to accept that or at least vote in favour of it."