Webb Duncan; Penk ChrisHon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you Madam Chair and thanks to the Minister for those comments. One thing that springs to mind immediately from those comments and I think it's actually quite an important one is: is it the Government's intention with the amendment to the Sentencing Act that the more closely connected to gang membership the crime is the more aggravating the factor is? So if you've got a group of gang members engaged in a burglary then that's a gang crime. If you've got a gang member who's carelessly used a motor vehicle it's not a gang crime. In terms of how aggravating gang membership is would it be fair to say the more of a gang crime it is the more aggravating it is? So that's my first question.My second question is actually one I hope the Minister will take a real interest in and might have some instructions on and that's on the retrospective nature of clause 17 in the new Part 5 of Schedule 1AA of the Sentencing Act that is being added in Schedule 4 of the bill which is the very last thing in the bill. Now I raised this in an earlier debate but the Minister didn't get a chance to respond to it whilst he was there. So this is the commencement clause for the change to the Sentencing Act and as it's drafted it says that applies only to proceedings commenced on or after the commencement date." Now the difficulty with that is that the offence could have been committed two years ago. The New Zealand Bill of Right Act provides that a person is entitled to be charged and sentenced under the law as it stood at the time that the offence was committed and this actually departs from that. Now my amendment solves that by replacing "proceedings commenced" with "offences committed". The last time one of my other amendments the Minister sneakily put an Amendment Paper in as well and usurped me there so it may be that that's going to occur. But I actually think that's quite an important one. It's tucked away in the kind of depths of the bill but it does strike me as a transgression of the retrospectivity principle in actually quite an important way. So I will stop there because I'm hopeful the Minister will be able to respond to that. Hon Member: Madam Chair. CHAIRPERSON (Barbara Kuriger): The Hon Dr Duncan Webb was on his feet first.Hon Dr DUNCAN WEBB: Oh thank you Madam Chair. Well I can see that the Minister—the very good Minister of Justice that he is—is thinking carefully about it. So I'll just touch on the other question that wasn't responded to and I know that it may be that my friends on the other side are keen to leap to their feet but it would be good for the Minister to have an opportunity to respond to these even if it requires the committee to pause for a moment. But my other amendment is really about the difficulty we have with the aggravating factor simply of being a gang member when it bears no rational relationship to the offending and my amendment which has got an "l" on it adds a subclause there which links it into serious offending so that it's not shoplifting or Mr Xu-Nan used the example of infecting someone intentionally with a sexually transmitted disease. That's not one that leapt to my mind but again it's a really good example of a crime that doesn't have a gang element in it. You know I don't agree with the underlying principle of the Act but my amendment would at least make it so that there was some "gang-ness" to the crime if you like because it is serious offending as identified in this legislation. So if you could respond to that retrospectivity piece in particular but also whether you'd smile upon that other amendment.Hon CHRIS PENK (National—Kaipara ki Mahurangi): Thank you very much Madam Chair. I do acknowledge and as best I can I will address the points that the member has made. In terms of the question of whether the Government intends that there'll be a proportional relationship between on the one hand connection with gang membership and the nature of the offence I think the Government's position would be that that's an appropriate question for the judge in any individual matter in the act of sentencing to consider and apply as they think appropriate.In terms of the question of commencement or rather the applicability of the new sentencing regime as it affects a matter in which an actus reus has taken place versus the commencement of proceedings it seems to me there'd be a relatively narrow subset of actions and then cases to which this might apply. But it's a reasonable question I think as far as it goes. It seems to me that the Attorney-General's report under section 7 of the New Zealand Bill of Rights Act (NZBORA) did contemplate that question and indeed other NZBORA-related matters and I think it seems to me that the intention isn't that there be a retrospectivity about the bill and its effects. I would point out that while of course the NZBORA does have things to say about retrospectivity in relation to criminal matters we're not in the serious territory of declaring an act to be a criminal activity or offence that was not at the time that it was perpetrated but rather a bit of nuance around the extent to which certain factors might be able to be taken into account.On the third and final point which I think is the amendment marked "p" for pa then I think I'm right in saying that the—oh I beg your pardon. I think that I'm in the same territory as I was for the one that was marked "l" for lemur. So if I'm confused on that point I apologise. I'll see if I can gain any greater clarity either under my own steam or with some help from my friends or perhaps the member himself."