Cosgrove Clayton: Sentencing and Parole Reform Bill — In Committee 
Cosgrove Clayton: Sentencing and Parole Reform Bill — In Committee 
[Volume:663;Page:10912] 
Hon CLAYTON COSGROVE (Labour—Waimakariri) 
: 
 The Labour Party has put forward a number of amendments to Part 1 which I will briefly deal with. They relate to clause 5 which inserts a manifestly unjust provision for “three strikes” sentencing and exclude in new section 86A accidental or negligent manslaughter for reasons that I will go into later in the debate and which my colleague has referred to. We have a number of other amendments. 
I will make just a couple of points. What I think is interesting about the process around this bill as we talk about Part 1 is a comment made by the Minister in the chair the Minister of Corrections in her summation. I think she said—and I will be corrected if I misquote her—that she does not consider offenders to be victims. To some extent I agree with her on that but it is very interesting that if we accept—as for instance Mr Garrett did when he got into some difficulties in this place in his own office— 
Sandra Goudie 
: Are we talking about Part 1? 
Hon CLAYTON COSGROVE 
: Yes I am talking about Part 1 if the member would listen. That member’s trouble is that she is not chairing the Law and Order Committee now; we have a decent chairman in the chair. 
When Mr Garrett got into some difficulties he said a couple of things. He said that things had happened in his life. I think he referred to an oil rig and to a culture in Samoa that he said affected his behaviour at the present time. I accept that and I do not argue with it and I do not say it to make a political point. I think Mr Garrett was actually saying that things happen in people’s lives. For instance a child who is raped at the age of 5 by his father may indeed turn out to be a sexual predator at age 25. That does not in any way excuse what that sexual predator did but logically one might say that is the alibi that Mr Garrett used for his behaviour: the environment people grow up in and the things that were done to them do not excuse their behaviour but may have some tangible or intangible intelligent connection that may have promoted their becoming the predator they are today. Maybe there is a connection. I agree with people who say that does not excuse the behaviour. But I argue that there is a connection and to use Mr Garrett’s point about starting points we should perhaps be dealing with that starting point not political pamphlets like this. So although I agree with the Minister when I say that offenders are not necessary victims because of the nature of their actions I also think if one looks at their behaviour and the environment in which they grew up and lived in one might be able to draw some tangible conclusions that might teach us ways to prevent crime from happening in the future. 
I will get back to the bill to stop the squawk-box across the aisle. She thinks she is still chairing the Law and Order Committee but she chaired that committee in such a way that she truncated and shut down any debate about the process surrounding this bill. If she thought that this bill would really work she would have encouraged debate and allowed the Ministry of Justice the actual authoritative agency that deals with this bill to make submissions on the amending clauses. The Minister of Justice has become the invisible man on this bill although in some ways I do not blame him because he does not believe in it either. 
I will deal with some of the amendments we have put forward. We are putting forward an amendment to new section 86D(2) in clause 5—and I will go slowly for Ms Goudie—by inserting after “maximum term of imprisonment prescribed for each offence” the words “unless the Court is satisfied that given the circumstances of the offence and the offender it would be manifestly unjust to make the order.” The reason for this amendment is that the legislation states that on a third strike the offender will receive the maximum penalty in prison for that offence with no parole. When people have criticised the bill for taking away judicial discretion the ACT Party has repeatedly asserted that the court has the discretion on a third qualifying offence to not impose the maximum sentence if it would be manifestly unjust. For example Mr Hide and Mr Garrett in a pamphlet on the “three strikes” policy and the Sentencing and Parole Reform Bill said the following: “The judge sentencing a Strike Three offender will have no option but to sentence the offender to the ‘max’ unless it would be ‘manifestly unjust’ to do so.” This is not correct. The proposed legislation says that although the court has the discretion not to order the sentence to be served without parole if it is satisfied that it would be manifestly unjust to make the order imposing the maximum sentence on a third qualifying offence is mandatory. Simply put Labour’s amendment gives the court the discretion not to impose a maximum term of imprisonment on a third-strike offence if it is satisfied that it would be manifestly unjust to do so. That aligns the proposed legislation with at least the public assertions of the ACT Party. 
There are many examples of when it may be deemed unjust to sentence an offender to a maximum sentence for a third offence. The most obvious of course—as has been discussed in the previous debate—is manslaughter because of the huge variance in the seriousness of that offence. As the legislation is currently written an offender would receive a life sentence for manslaughter on a third offence whether the manslaughter was a vicious assault or a tragic hunting accident. In fact officials came before us and said that it could well be the case—not theoretically but in practical terms—that a person may commit a heinous first-strike offence and get a lesser sentence than a person who commits a third strike and less heinous if I can put it that way offence. I wonder what the “get tough” Minister and Mr Garrett will say to the victims of a first-strike offence when the two are compared and they see that something is wrong if we are talking about equity of victims. What emotions will run through the minds of those victims? 
If we are interested in justice and in appropriate levels of justice then issues around manslaughter and its varying nature should be considered. We could have a case where a person commits aggravated robbery twice to say finance a drug habit. I am not making any excuses for that person; it is an extremely bad thing to do. It is outrageous and should be punished. But 40 years on that person may have cleaned up his or her act—I hope that we all believe in that thing called “hope” and maybe in reintegration—and after 40 years of non-offending that person may go out hunting with a mate a hunting accident occurs and somebody is killed. I am sure somebody will laugh at this but it is a real possibility. It may be remote but it is a possibility that needs to be covered off in this legislation. We have an amendment on the Table dealing with that. 
It is not about political points; there are some major holes in this legislation. I have no doubt that the bill will go through tonight. We will oppose it but members opposite have the votes and they will win. We are proposing a number of amendments because even though we oppose the bill going through we believe that there are manifest inadequacies and weaknesses within it. I would like an explanation from the Minister in the chair about my example. Let us say a person had committed aggravated robbery twice in his or her career to finance a drug habit then 40 years later commits a third-strike offence because he or she goes hunting with a mate—I am not excusing it—something occurs an accident happens and the “three strikes” policy kicks in. I argue that that is far different from the other end of the variances of manslaughter; we can probably all think of a number of examples of the vicious nature of manslaughter. 
I raise this issue with the Minister in all seriousness and she may want to take some advice on it. I think it is a pertinent issue if we are truly concerned as has been said about protecting victims and ensuring that just outcomes flow from this legislation. I do not believe that they will. As we have done in the past with other law and order bills we offer the Minister what we believe may well be a logical solution. Mr Garrett is a lawyer and I am not and I would be very interested if he could proffer an opinion on that example and on the other amendments. Even though Mr Garrett and I have our disagreements from time to time I hope that we both want to pass legislation that at least provides for just outcomes and does not perpetuate or create as an unintended consequence unjust outcomes. I assume that all members of Parliament want to do that. I argue that if the hypothetical example that I have put before the Committee was put into practice it would be an unjust outcome. If a person who has cleaned up his or her act has maybe learnt from a first and second strike—maybe—and then kills someone else in a hunting accident that person would receive a manifestly unjust outcome under this legislation in its present form.