Criminal Justice Reform Bill — In Committee 
Criminal Justice Reform Bill — In Committee 
[Volume:640;Page:10529] 
Criminal Justice Reform Bill 
In Committee 
Debate resumed. 
Part 2 Amendments to Acts relating to Criminal Justice ( 
continued 
)  
JUDITH COLLINS (National—Clevedon) 
: 
 Following on from that very good contribution from my colleague Simon Power one of the things I would like to talk about this evening in relation to Part 2 is the issue of parole hearings. 
Many of the members of the Committee will be aware of Mrs Croskery whose son Michael was referred to in the media as the pizza delivery man who was killed by the children in Papakura which of course is part of my electorate. In that particular case one of the things that Mrs Croskery says as a constituent is that every year when parole comes up for these young killers she has to relive this tragedy not once but actually about seven or eight times depending on the number of children we are talking about. She has to go the hearings and talk about what has happened how it has affected her how it has affected her family and why these people should not get parole. 
I would have thought it would be a very good plan to make sure when multiple assailants multiple criminals are seeking parole that one hearing would be enough; that they could be dealt with at one time. I know that that might offend some people who are more concerned about the rights of criminals than the rights of victims but frankly if they undertake the crime together perhaps they could do the time together and take some of the consequences together because clearly they want to hang out together. I think it is a good opportunity for people to address this issue. I am sorry that it has not been properly addressed in this area. 
I would however like to commend to the Committee Supplementary Order Paper 126 in the name of my colleague Chris Finlayson and in particular the amendment to clause 40 that states that the court must have regard to sentencing guidelines. One of the things we want to do is to make sure that when the court does have regard to sentencing guidelines as it must it does so if the guidelines are relevant to the offender’s case. One of the points we want to make sure of—and we have talked about this before in the House—is the fact that sentencing guidelines can become sentencing dictates rather than sentencing guidelines. That frankly means that judges are told what the sentence will have to be rather than they have the ability to look at the facts understand what is going on having sat through the case and then make their judgment based on that on their experience and on precedent. 
We have talked about sentencing guidelines before as being something that should be only that rather than the tick the box rules that this Government seems to want to impose on judges. It is hard enough getting good people to want to be judges and it is very difficult to get very experienced very good people. One of the things we do not want to do is to dumb down the judiciary just because this Government does not trust the judiciary to do its job and to make the right decisions based on what the judges see. Unfortunately the media in particular tend to go for the headlines and tend to put in a very concise form exactly what the case is about and what the evidence is. It is very difficult when we have complicated criminal cases to be able to put the essence of a case into three or four paragraphs. Maybe the evidence has not been heard by the person in the media maybe that person has not been able to see the witnesses and test their veracity but certainly a judge can see that and a jury can see that. 
That is why in many cases we are better to leave more power to the judges to do the sentencing because the judges have sat through the entire case. They have not read just the headline. They have not seen just the television review of it. They have not seen just the basic facts on a piece of paper. They have actually heard the witnesses give their evidence they have heard it tested and they have made their own decisions as to whether they think the witness is telling the truth. They have made their own judgment about whether there is something more than what is being told but which has not come out. Judges are actually the best people to make the decision. That is why one of the concerns we have had is that this Government has wanted to pull judges into line and tell them what they should be doing. Guidelines have the opportunity to become set rules rather than guidelines. Basically it is the State controlling the judges. One of the principles of democracy is that we have an independent judiciary. 
Hon MARK BURTON (Minister of Justice) 
: 
 I want to pick up on a point in particular that Simon Power made and also comment briefly on Judith Collins’ comments. Mr Power raised— 
Hon Tau Henare 
: Please speak up. I can’t hear you. 
Hon MARK BURTON 
: Is the member having trouble hearing? 
Hon Tau Henare 
: I know you are a gentle man. 
Hon MARK BURTON 
: I am a gentle man. Mr Power raised an important question around parole hearings the appearance of victims at parole hearings and their opportunity to be heard in support of any written submission they might make. I want to reassure Mr Power that the provision currently in effect is that the Parole Board determines whether a hearing will be an attended or an unattended hearing. In effect the Parole Board makes a structural decision upfront as to the nature of the parole hearing. If it is to be unattended hearing then under the current provision there is no opportunity for a submission to be made. 
Of course one of the fundamental changes that this legislation makes is to be very clear about the singular focus of the Parole Board in looking to the safety of the community in its deliberation and consideration of a parole application. In fact the range of issues that are likely to be before it are much more focused perhaps than has sometimes been the case in the past. 
A further point—and this touches in part on the first issue that Judith Collins raised—is the frequency with which some victims and families of victims whether or not they are attending none the less may have to consider and relive the issues. 
Of course one of the fundamental changes in this legislation is to require a minimum of two-thirds of a sentence to be served. Let us take a 9-year sentence. The first time that a convicted person could even apply for consideration is after 6 years. So that potentially will make a significant difference as well. The number of occasions almost inevitably will be reduced. I hope that gives both members some comfort as to the concerns they have raised. 
CHRISTOPHER FINLAYSON (National) 
: 
 I take a call to address clause 40 because it raises an important matter about sentencing practice. As currently drafted the proposed new section 21A to be inserted by clause 40 provides: “When sentencing an offender a court must impose a sentence that is consistent with any sentencing guidelines that are relevant …”. Yet I believe that that approach as expressed in the bill is unreal and does not reflect the reality of the sentencing exercise undertaken by the judge. 
It is a fundamental principle of sentencing practice that judicial discretion is central when one is dealing with an offender. It is not simply a question of applying Sir Geoffrey’s guidelines rigidly and like an automaton but rather of taking the guidelines as a starting point looking at the facts of the case looking at the seriousness of the offence looking at the age of the offender and looking at other such factors when determining whether a sentence is going to be of a particular level. This point was very well expressed by the High Court of Australia not so long ago when it said: “A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and the circumstances of the offender. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment.” 
 That is the reality of the sentencing exercise and as expressed the proposed new section 21A does not recognise that reality. As I said it expects judges who are now hijacked into the executive by this odious Sentencing Council to apply Sir Geoffrey Palmer’s sentencing guidelines rigidly without giving them very much thought at all. Members should note the words “a court must impose a sentence” and as one can see from clause 35 which inserts new section 6A into the Sentencing Act the guideline is to apply to the sentencing of an offender in the District Court the High Court the Court of Appeal or the Supreme Court and—it is interesting to note—“on … the date on which the guideline comes into force whether or not the guideline was in force when the offence was committed.” which in itself is constitutionally improper. 
I come back to my proposal for amending new section 21A because what I have tried to do in my Supplementary Order Paper 126 is to recognise the reality of the sentencing exercise that is undertaken by the judge in whatever court he or she sits. It states simply: “When sentencing an offender a court must have regard to any sentencing guidelines …” because that reflects the reality of sentencing practice and that is what lawyers and judges are dealing with day by day in the courts. It is something that academics and the people in the Law Commission may not necessarily have to deal with which is probably why they seek to impose this Stalinist requirement that the “court must impose” a sentencing guideline. 
So that is what the Supplementary Order Paper is about. I hope that sensible practical people in this Committee like Mr Mark will reflect upon it because it does not seek to apply these guidelines rigidly but has a requirement that judges must have regard to them which is a much more meaningful and sensible way of dealing with the guidelines. It reflects the reality of the sentencing exercise. 
When I was in England a few months ago I went down to the Sentencing Guidelines Council and saw the kinds of guidelines that had been prepared in England. It was interesting that the council had guidelines to reflect seriousness guidelines to reflect age and guidelines to reflect the particular crime that had been committed. A judge when dealing with a sentencing exercise sometimes has to take into account two or three guidelines. If that is to be the case in New Zealand then one cannot impose a sentence consistent with any sentencing guidelines. What one has to do as a matter of reality is to take the various guidelines reflect on them then exercise one’s judgment and exercise a discretion in reaching a sentencing figure or sentencing a time of imprisonment that reflects the particular circumstances of the case. 
CHARLES CHAUVEL (Labour) 
: 
 I would like to begin by addressing some of the comments made by the previous speaker Chris Finlayson. What a shame it is that he did not quote in full the new section 21A to be inserted in the Sentencing Act by clause 40. The section states: “When sentencing an offender a court must impose a sentence that is consistent with any sentencing guidelines that are relevant in the offender’s case”. So that is how the courts are able to get to the relevance of the individual case. 
Hon Clayton Cosgrove 
: He didn’t tell us that one did he? 
CHARLES CHAUVEL 
: No conveniently not. 
And the section goes on to provide “unless the court is satisfied that it would be contrary to the interests of justice to do so.” In other words the court has complete discretion to do what is required by the interests of justice in the individual case to recognise the individual circumstances of the offender. Indeed great care was taken with the casting of this section to ensure that the principles of judicial independence and the need to do justice in individual cases were carefully preserved. So it is a shame that the Committee was not quoted the section in full. I hope my setting it out like this demonstrates the nonsense of the member’s Supplementary Order Paper 126 and shows that the bill as reported back along with the Supplementary Order Papers proposed by the Minister of Justice will serve very well to achieve the very important principles set out in the purposive parts of the legislation. 
I also note that the previous speaker spoke of the odiousness as he put it of the new section 6A to be inserted in the Sentencing Act by clause 35 which requires judges to consider and apply where applicable the guidelines whether or not they were in force when an offence was committed. We heard evidence from the judges that because there are no guidelines in respect of most offences that come before the District Court except for those guidelines that they manage to come up with by exercising common sense there is actually no way of telling whether a sentence given under a guideline would be more or less onerous than if the guideline were not in force. This is simply because there is no guidance at the moment for District Court judges who confer 90 percent of the sentences in this country as to what to do. What a compelling case that is for the guidelines that this legislation would bring into force. 
I will speak just briefly to the rest of Part 2. I will speak of it in the round because it is important in my view to recognise the achievement that the bill as reported back from the Justice and Electoral Committee represents. There will be a clear hierarchy of sentences. There will be three new non-custodial sentences including a change to the parole eligibility regime. 
It is also important to note that home detention will become a sentence in its own right rather than being a way of serving a sentence of imprisonment as it is currently. Home detention will be an option only for offenders who are a low risk to the community and it will have a maximum term of 12 months. The new sentence will replace front-end home detention which is currently available for eligible prisoners who are serving prison sentences of less than 2 years. Those who are nearing parole for more serious crimes will no longer be able to apply for back-end home detention which was introduced by the previous National Government in 1999. The effectiveness of home detention is well established. It has low re-conviction and re-imprisonment rates when compared with prison sentences and a high level of compliance. Home detention also clearly aids rehabilitation by ensuring that offenders maintain pre-existing responsibilities to their family and community. 
Both of these new community-based sentences community detention and intensive supervision will provide a higher level of restriction and supervision of offenders than either of the existing community-based sentences. So these measures are tough on crime and suitably so but they are based on the science as opposed to being based on rednecked rhetoric. Community-based sentences will also include a greater emphasis on offenders gaining basic work and living skills. These changes mean that judges will have a greater range of options when sentencing offenders particularly at the lower levels of offending. 
So rather than curtail judicial independence as Mrs Collins suggested in fact the changes will enhance the independence and freedom that judges have to confer appropriate sentences in individual cases—sentences that can be used to genuinely fit the specific circumstances of the offence and the offender. If a judge believes that home detention is the appropriate sentence the judge can make that decision at the time of sentencing. 
This certainty in sentencing also extends to planned changes to the parole regime. Under the bill inmates serving sentences of more than 12 months will not be eligible for parole until they have served at least two-thirds of their sentences. In this regard I note that Mr Power in an earlier speech claimed that it was the Labour Government that brought in one-third parole eligibility in 1993. Well of course— 
Simon Power 
: I didn’t say 1993; I said 2002. 
CHARLES CHAUVEL 
: I am sorry—in 2002. Well of course that is wrong. It was brought in in 1993 by the National Government. The 2002 Sentencing Act simply maintained the status quo. So that was another error from the Opposition on this important legislation. 
Other salient points in the bill as reported back include that of prisoners sentenced to 12 months or less having to serve their whole sentence. All those involved in the case—the victims the police and of course the offender—will know from the outset that the offender will serve the lion’s share of the sentence. 
At last we have a chance to have truth in sentencing in this country through enlightened and scientifically based legislation brought in by the Minister of Justice and considered carefully by the Justice and Electoral Committee. I commend the bill to the Committee of the whole House. 
The CHAIRPERSON (Ann Hartley) 
: I call Ron Mark— 
Dr Wayne Mapp 
: A member of the Government for heaven’s sake! 
RON MARK (NZ First) 
: 
 It clearly must have been a very good dinner Mr Mapp. 
Hon Tau Henare 
: You were there—you were there! 
RON MARK 
: Don’t tell lies Tau— 
The CHAIRPERSON (Ann Hartley) 
: Please be seated. We will have some order please. The member has not even started his speech. 
Hon Tau Henare 
: I raise a point of order Madam Chairperson. I thought that it was a tradition in this House—in fact the Standing Orders say that we are not allowed to accuse a member of lying. That member accused me of lying and I ask him through you to withdraw and apologise. 
RON MARK 
: Tau Henare said I was at dinner with him and Wayne Mapp and if Tau Henare is going to stand up now in this Chamber and put his hand on his heart and say that he was telling the truth then I will withdraw and apologise. But he is not—he told a lie when he said that. And that is the truth. 
The CHAIRPERSON (Ann Hartley) 
: Please be seated. The member knows that he cannot call another member a liar. 
RON MARK 
: No I did not. 
The CHAIRPERSON (Ann Hartley) 
: The member used the word and the member cannot say that. The member has to stand up withdraw and apologise. 
RON MARK 
: Madam Chair this may result in my leaving the Chamber and not completing my speech because I am asking your indulgence. The fact of the matter is that I was with a group of people over dinner time and I can prove quite categorically where I was. Mr Henare told a lie. 
The CHAIRPERSON (Ann Hartley) 
: Please be seated. I am on my feet—please be seated. No the member cannot dispute what I have said. I have made a ruling. The member clearly said that and he must withdraw and apologise. [ 
Interruption 
] I am sorry; I have ruled on the matter. The member has said that to another member. He knows that he cannot say that. The member must withdraw and apologise. 
RON MARK 
: Madam Chair I accept that and I will comply with your instructions. But let me ask you this— 
The CHAIRPERSON (Ann Hartley) 
: No no. I am sorry. Please be seated. I will give the member one more opportunity to just comply with my order to withdraw and apologise. 
RON MARK 
: I withdraw and apologise. 
The CHAIRPERSON 
: Thank you. 
Hon Clayton Cosgrove 
: I raise a point of order Madam Chairperson. I seek your guidance. You have suggested rightly—and the member has complied—that the member used an unparliamentary word. That is accepted I think by all and sundry. But you have another problem which is that you have the word of a member the member Mr Henare who got up and made a claim. You have the word of Mr Mark that that was a false claim and the language used may not have been appropriate. In effect Mr Henare has misled the Committee. I take offence at that. He has misled the Committee but there is a remedy and I ask you to rule on that please. 
The CHAIRPERSON 
: If the member is disputing that it can be dealt with as a matter of privilege. It is not up to me to deal with that. I have dealt with the previous point; I am not going to relitigate that. The member said that so the matter can be dealt with as a matter of privilege. 
RON MARK 
: I raise a point of order Madam Chairperson. My understanding of your ruling is that if I wish to contest the veracity of what Mr Henare just said I must take the case to the Privileges Committee of which Mr Simon Power is the chair. And he being a National member is the person who will be hearing that case. 
The CHAIRPERSON (Ann Hartley) 
: No no please be seated. I am on my feet. No the member as I indicated must raise it as a point of privilege with the Speaker. 
Simon Power 
: Point of order— 
The CHAIRPERSON (Ann Hartley) 
: No I have ruled on that. Is this a new point of order Mr Power? 
Simon Power 
: I raise a point of order Madam Chairperson. I have two points if I may. Yes they are points of order. First of all the member should know that if he wishes to raise a matter of privilege he does that with the Speaker not with the Privileges Committee. Secondly I take absolute offence at the insinuation that as the chairperson of the Privileges Committee of this Parliament I would hear any evidence or matter before that committee and have a biased view of it because of the political party I belong to. 
The CHAIRPERSON 
: I am on my feet—there will be silence. Mr Power we have dealt with the previous matter and I have made it very clear to the member— 
Simon Power 
: I have taken offence. 
The CHAIRPERSON (Ann Hartley) 
: —no please I am just dealing with the first one—that the member needs to raise that with the Speaker as a matter of privilege. On the second matter as the member Simon Power has said he has taken offence—a clear offence—that the member has insinuated that Mr Power would not act honourably as chair. He has taken offence at that and I ask the member to withdraw and apologise. 
RON MARK 
: I withdraw and apologise if Mr Power is in any way offended. Mr Power is an exceedingly honourable member of this House and one who has been judged as being so on many occasions. 
The CHAIRPERSON (Ann Hartley) 
: The member wishes to continue his speech now? 
RON MARK 
: Yes. Let me say Madam Chair— 
Dr Wayne Mapp 
: Ha ha! 
RON MARK 
: I raise a point of order Madam Chairperson. Is there something wrong with Mr Mapp—does he need assistance? 
The CHAIRPERSON (Ann Hartley) 
: No that is not a point of order. I say to members that somebody is going to go out in a minute if members are not quiet while a point of order is being dealt with and that includes you Mr Henare. 
Dr Wayne Mapp 
: I raise a point of order Madam Chairperson. I did take exception to what Mr Mark has been saying. Actually to be fair it is a little unusual for him but he has made two statements. The first one I let go; it was actually untruthful. The second one I do take exception to and I would ask him to observe the decorum of the House and withdraw and apologise for his statement. 
RON MARK 
: Speaking to the point of order Madam Speaker the decorum that Dr Wayne Mapp seeks would have been best demonstrated by Dr Mapp himself at the outset of my attempt to start a speech. In fact this whole debacle has ensued as a result of his absolute lack of decorum which is totally unbefitting Dr Mapp in my 11 years of experience in this House of observing him. The fact that he is getting some sort of assistance from the back from the Hon Tau Henare does him no good whatsoever in the eyes of anyone who has been watching this entire thing roll itself out on the television screens over the last 10 minutes. 
The CHAIRPERSON (Ann Hartley) 
: Well Dr Mapp I certainly did not hear the remark but I think there was a lot of interchange previous to that. I ask Mr Mark to withdraw that remark. 
RON MARK 
: I withdraw. To sit as a centre-party member and listen to the debate between National and Labour on the Criminal Justice Reform Bill does give one cause to reflect a little on what has transpired in this House since 2002. It is interesting to hear Mr Chauvel say that the legislative changes to the parole laws enacted in 2002 did not actually taken effect in 2002 and that they happened in 1999. That is not how New Zealand First recalls it. We welcome the changes in this legislation to return ourselves to the situation where people must complete two-thirds of their sentence before they are eligible for consideration for parole. But the fact of the matter is that we are in this position only because in 2002 the Hon Phil Goff came to this House with legislation called the Sentencing Act and the Parole Act which were supposedly the answer to the problems raised by Norm Withers in his nationwide petition for longer and harsher penalties. The result this Government gave the people of New Zealand was to reduce the time required for eligibility for parole from two-thirds of a sentence down to one-third. 
Now we are back where we were in 2002 when we said that that was wrong. That is interesting because at the same time in that legislation we had discussions about periodic detention. Periodic detention as we knew it was virtually repealed and in this legislation we are now going back and redressing the problems that were implemented as a result of the law change in 2002—a law change that New Zealand First opposed and I know that the National Party when it had sensible members in Parliament—before it brought in waka hoppers like Tau Henare—also opposed. We voted against that. 
We welcome the changes to home detention. The point the Committee needs to be reminded of is that New Zealand First led the charge against home detention particularly back-end home detention and its implementation. It is quite interesting to hear members say that home detention has a low reconviction rate and a low re-imprisonment rate. The fact that it is highly successful—and people have trumpeted its successes for many years now—belies the evidence that New Zealand First tabled in documents time after time in this Chamber showing where it was failing. 
How can we say that home detention is effective when the National Government of the day brought it in saying that it would not be applied to serious offenders to violent offenders to wife beaters or to drug dealers yet New Zealand First revealed over a 3-year period that not only were wife beaters getting back-end home detention not only were people who assaulted children—one man with a rifle—getting back-end home detention but also drug dealers were getting back-end home detention? We exposed the fact that a drug dealer was manufacturing P and killed himself on an overdose of P whilst on home detention—back-end home detention. And people have the nerve to stand up and say that home detention is successful and that it is administered well? Well I am sorry but it is not. 
This change to make home detention a sentence in its own right is something that New Zealand First has lobbied and fought hard for. 
Hon Tau Henare 
: Why aren’t you doing anything about it? 
RON MARK 
: In answer to “Mr Taurekareka” the Hon Tau Henare we are doing something about it and this legislation proves it. For those who have sat in the National Party— 
Hon Tau Henare 
: I raise a point of order Madam Chairperson. The term Taurekareka although being the name of my great-grandfather is not my name. My name is Raymond Tau Henare. I prefer to be called Tau Henare. Taurekareka to me and to some people means “slave”. I am no one’s slave especially not the slave of that little man over there. 
The CHAIRPERSON (Ann Hartley) 
: All members know that they must use a member’s correct name. 
RON MARK 
: I did; I called him the Hon Tau Henare at least three times and  
Hansard 
 will reflect that. But the question of who is a slave and who is not is a highly debatable question and some could say that someone who goes from being an Alliance Party member to being a National Party member in support of right-wing free-market economics has to be a slave to something—whether it is ideology or something else we shall never know. All we know is that the man hops from party to party like a bird on a tree looking for a crumb wherever it may be in the hope that there is a Cabinet position at the end of that rainbow. 
The question Mr Henare put was what we have done about the situation. What New Zealand First has done about it is that it has lobbied and worked hard. We are pleased with the result in this legislation of seeing home detention now as a sentence in its own right. 
Let me tell Mr Henare one of the other advantages. Under the old system when a judge gave leave for someone to apply for home detention that person got a deferred sentence. And what did we see from a deferred sentence? We saw that an individual up in Auckland—and I know that Mr Worth now recalls this because I can see the look on his face—was given a deferred sentence and disappeared. The police investigations looked for that man to charge him again and hello he was nowhere to be found—he had gone. 
That issue has been addressed. We will no longer see people given leave to apply for home detention given a deferred sentence and then not being able to be found by the police because it will now be given as a sentence in its own right. New Zealand First rightly claims credit for that. 
We will just conclude this particular contribution by saying that we are pleased we have finally redressed some of the anomalies. We have our concerns about home detention but we are prepared to allow this regime to go ahead because we think it is a far better regime than that introduced by National in 1998-99 remembering of course that when National introduced that regime it promised that no violent offenders would ever be put on home detention. The problem is that that is all we have seen since then. 
Hon Tau Henare 
: You were there Ron. 
RON MARK 
: Mr Henare says that I was there like he said I was at the dinner with Mr Mapp which I was not. I was not in the National Government when this legislation was passed. New Zealand First had left but unfortunately Mr Henare had been attracted to the baubles of his office—and had other personal circumstances that we will not go into now—and took the bribe from Jenny Shipley held his ministerial warrant jumped the waka and stayed in National with Jenny Shipley. Mr Henare’s reward was to be booted out of Parliament. He should remember that he said he would never be a list MP. Well let us look at him now. 
Progress to be reported presently. 
House resumed. 
The Chairperson reported the Appropriation (2007/08 Estimates) Bill without amendment and progress on the Criminal Justice Reform Bill. 
Report adopted.