Cosgrove Clayton: Sentencing (Offender Levy) Amendment Bill — In Committee 
Cosgrove Clayton: Sentencing (Offender Levy) Amendment Bill — In Committee 
[Volume:658;Page:7134] 
Hon CLAYTON COSGROVE (Labour—Waimakariri) 
: 
 In Part 1 of the Sentencing (Offender Levy) Amendment Bill I want to look particularly at clause 4 in respect of reparations which states that a court must not take into account whether an offender is required to pay a levy. Chester Borrows the chair of the Justice and Electoral Committee will recall that I sat in for a number of sessions on this bill. There was quite an interchange with officials about how judges would act in respect of dealing with hardship. Mr Borrows himself said reparations are the top priority and in respect of the levy the legislation says one cannot take hardship into account. In respect of fines Mr Borrows made the very good point that a court could commute a fine into I heard him say a community-based sentence and that is correct. 
Without criticising our judges I say to the Government that judges are not fools. Of course a judge would comply with the provision in clause 4 but let me put this to the Minister: if a judge was faced with a case of personal hardship he or she would acknowledge the $50 levy. If the fine was to be $250 and there was hardship involved it may be that as Mr Borrows said the judge would choose to commute the fine to a community-based sentence. Or it may be that a judge knowing that a person cannot pay—and I am not defending the offender here; I am just looking at the practicalities of this matter—may say although he or she had the idea of fining the offender $250 at the back of his or her mind instead the fine will be $200 plus of course the levy. In my view that proves that although we are supporting this bill—and I make that very clear to Mr Borrows—this part of the bill is something of a mockery. 
This bill has been very well hyped by the Government. We all believe in the principle of assisting victims and that is why we did a number of things while we were in Government that we will touch on later including enacting the Victims’ Rights Act which gave victims the ability to claim against any compensation monies that criminals receive—and the list goes on. I have to say that this levy tugs at the heartstrings of victims. I will make a couple of predictions. One is that Jacinda Ardern is right and in essence we will find that the costs of collection will outstrip the monies that are collected through the levy. I remember asking officials what the problem would be with simply providing that when judges fine somebody they just up the fine by $50 or in the case of reparation they put $50 on directly as part of the reparation and use the existing reparation system. Some answers were given about that; I was not convinced by them. This levy tugs at the heartstrings of victims. 
I come back to my point that judges are not fools. They will look at the offender who is before them. They have a menu of sentencing arrangements and options before them including prison. Mr Borrows said another option was commuting a fine to a community-based sentence which judges can also do. There is also the offender levy. I think one reason that the Government would not support including the $50 directly in reparation or simply saying it forms part of any convicted person’s fines and arrangements and we can use our existing collections system is that it wants to use the levy as a political pamphlet. It wants to be able to say there is a levy of $50. 
There is another issue in respect of Part 1 because the levy is $50 per offender. In the select committee we canvassed the issue of someone who walks into a pub gets into a brawl beats up three folks faces three assault charges and is fined $50. We could make the argument that $50 divided by three is too little—that it is virtually nothing and will make no difference. Where there are a multitude of offences the levy is not per offence but per offender. I think people in the community have supported this measure because they like the notion of offenders contributing compulsorily to the well-being of victims. The community has a notion that offenders should pay something back and I think we would all support that. However the question is whether this bill—and I say it has the whiff of a political pamphlet about it—will do what it intends. If the Government was serious about helping victims it could have chosen to take the money it says it will get and without any bureaucracy to fund Victim Support directly with $15 million or $16 million. The Government could have given the money directly to Victim Support the eminent group that it is and said that because it deals with victims every day and interacts with and supports them it knows exactly how they feel. The Government could have decided to cut the bureaucracy and fund Victim Support and to chase those who have outstanding fines. 
The question is whether this levy will work. Even Judith Collins the moderate and venerable Minister who has made modesty an absolute virtue in the police and corrections portfolios has herself admitted that fines—and essentially this is a fine; it is called a levy but it is a monetary imposition on an offender and there is not a lot of difference from a fine apart from the use of another word—do not work. In the  
New Zealand Herald 
 on 2 February 2009 she said “There’s no point fining people who don’t pay fines when you’ve got other action to take.” That is what the Minister of Justice’s own colleague said. It is interesting that when we look at a paper in the Ministry of Justice’s own name called  
Structure of Operations in the Ministry: Proposals for Consultation 
 we see that people who owe the offender levy will be grouped based on their “willingness and ability to pay and their attitude towards compliance”. Well that is tough is it not? That is the Government talking really tough! So offenders will be grouped based on their attitude towards compliance. In English that means that if the levy is all that someone owes no one in the Government will come after him or her. If offenders know the Government is not going to come after them I suspect their attitude will be that they will not pay. That is human nature. It shows that the Government is prepared to tolerate targeting only those offenders who are likely to pay while the hard-core fines defaulters whistle off into the ether. 
We will support this bill and let it pass through the House and I address this point which Mr Borrows made: why would we do that if we have problems with the bill? I believe the legislation will be ineffectual although it is well intended—and I take the ministry’s word on that—but it will also bring a point of accountability over the next year or two. When we see that it is not working and when victims’ heartstrings have been tugged by this Minister and the Government then we will see whether this Minister will go to victims’ groups such as Mr Garrett’s Sensible Sentencing Trust speak at their conferences and explain to victims why the Government has let them down and why this offender levy is not delivering on the promises that were made. Substantial promises have been made by this Government. I take up Jacinda Ardern’s point in respect of costs. We have some precedent regarding costs in the fines collection world. The cost of administering yet another layer of fines will be greater than the money that comes in for the victims. The Government could have used other mechanisms if it had wanted to do so. 
Another issue was raised before the select committee and I do not raise this issue lightly. It is that somebody who commits a heinous offence—and every offence even burglary is heinous—is fined $50 for murder $50 for shoplifting $50 for rape and $50 for burglary. I acknowledge the point made by the Minister in the chair Simon Power about tiered levies and tiered fines but I say he is sending a pretty awful signal to victims. A rape victim will not get a cheque for $50 sent to him or her but there is sadly some symbolism around the lack of value that is attributed to the grief tragedy and trauma that the person has gone through. I will give the Minister this point of respect: I know that that is not his intention. But I think that when this legislation passes that will be its practical effect unless the Minister changes his mind about that. If the offence is murder the levy will be $50. If it is burglary it will be $50. If it is shoplifting it will be $50. If it is common assault it will be $50. If it is rape it will be $50. If one person commits multiple crimes on a particular occasion—multiple murders possibly—the levy will be $50. 
There are some good intentions in relation to this bill and we will support it because it will bring in and fine-tune a piece of accountability that we can render home to this Government in a couple of years’ time. I will wait for the Minister to front up to the Sensible Sentencing Trust and other victims’ rights groups when this legislation does not work. Expectations have been raised and I will expect him to take responsibility for the inaction in relation to this levy.