First third strike maximum sentence

A man has been sentenced to a maximum term (for the charge) of seven years in prison with no parole, for stabbing someone in the leg. If it hadn’t been a third strike offence it would have qualified for a prison sentence in the 2-3 year range.

It is the first time the ‘manifestly unjust’ out clause has not been invoked.

Two previous third strike sentences were not applied because the third convictions were both low end indecent assaults that would not on their own have justified prison sentences (indecent assaults can range in severity a lot).

This explanation of the sentencing gives an idea of the procedure judges go through to arrive at an appropriate sentence. This also shows how the judge has considered the intent of Parliament for three strikes.


Summary of offending

[3] On 4 January 2018, you were drinking alcohol with several associates at the Marton Hotel, where you were living while on bail. There is evidence you had been drinking for seven to eight hours. An argument broke out between you and the victim,
who believed you had stolen his phone. The victim was sitting next to you on a couch. You produced a knife with a retractable blade and stabbed the victim in the leg about 20 cm below his knee. This happened without any warning and produced a wound
approximately 2 cm in length, and 0.5 cm deep, into the victim’s calf muscle, which required medical attention including three sutures.

You were described by police who arrived at the scene as being belligerent, aggressive and intoxicated.

Appropriate sentence but for s 86D

[9] I begin by addressing the sentence I would have given you, if this were not your third-strike offence.

[10] The Court of Appeal’s decision in R v Nuku is the leading sentencing guideline judgment for offences such as wounding with intent to injure. Your offending falls on the cusp of sentencing bands two and three, which means that a starting point between two and three years’ imprisonment is warranted for your offending.

[13] Mr Mallalieu, for the Crown, and Mr Crowley, your counsel, agree that a starting point of around two and a half years’ imprisonment would have been warranted. I am also satisfied that a starting point of two years and six months’ imprisonment would have been appropriate.

[14] You have several previous convictions for violent offending. Most seriously, you were given a sentence of home detention for another instance of wounding with intent to injure in 2012. However, your violent offending has continued, and earlier this year you were sentenced to imprisonment for assault. Mr Crowley accepts that an uplift would have been necessary to reflect your previous convictions. You were also on bail at the time of your offending. I would have considered an uplift of six months appropriate in the circumstances.

[19] As you pleaded guilty, I would have been willing to give you the full 25 per cent discount for entering an early guilty plea.

[20] This would have resulted in an end sentence of two years and three months’ imprisonment. This means that you would have been sentenced to a term of imprisonment, regardless of the three strikes regime.

[21] I will now consider whether it would be manifestly unjust to order that you serve your sentence without parole. I am not convinced that it would be grossly disproportionate to make such an order in your circumstances. Your offending sits in the mid-range of wounding with intent to injure. This is not a case where your offending is insignificant compared to a maximum sentence that was designed to cover a wide variety of behaviour, as was the case in R v Campbell and R v Fitzgerald, both of which concerned indecent assaults that otherwise would not have attracted sentences of imprisonment at all. As I have already noted, absent the three strikes regime, you would have been sentenced to a term of imprisonment in excess of two years.

[22] I acknowledge that your sentence will be much harsher than I would otherwise have imposed, however, that will invariably be the case for a third-strike offence. Parliament deliberately designed a harsh response to offenders who persistently commit serious offences despite clear warnings. I have not been presented with any evidence that would suggest you were incapable of understanding the two warning previous given to you in 2012 and 2014.

[23] The Court of Appeal has emphasised that the manifestly unjust exception will only be engaged in clear and convincing cases.
While such cases might not be rare, as many offences encompass a wide variety of behaviour, it would be contrary to Parliament’s intent for the courts to routinely invoke the exception as a matter of course. Some regard must be given to the fact that Parliament anticipated that some degree of disproportion would inevitably be involved in a regime such as this.

[25] I have reached the conclusion that this is not a clear and convincing case to depart from the full effects of the three strikes regime. This conclusion is based in part because I consider that you are at a high-risk of reoffending and there is a need for
community protection. Your previous three strike offences, and the pattern of behaviour they demonstrate, are very telling.

(1) Your first-strike offence was for the same charge as the present offence. You jointly assaulted a victim, along with your father, by repeatedly punching his head and body with closed fists. The victim was also kicked in the face. You also used pieces of wood to strike the victim. The victim suffered a fractured nose, lacerations to his forehead, scalp and one of his fingers, and a fracture to that finger. The victim experienced on-going problems relating to his nose and finger. The
pre-sentence reports for this offence described you as having little insight into the implications of your offending. The sentencing Judge described them as disturbing to read.

(2) Your second-strike offence, while for a different kind of offending, was more serious than your first-strike offence. You followed a 17-year-old girl as she was walking home. She either tripped or was pushed to the ground. You indecently assaulted her and forcibly pulled down her underwear while telling her to calm down. You then forcefully penetrated her genitalia with your finger. She screamed and yelled for help, begging you not to hurt her further. You also threw her cell phone away during the attack. You attempted to remove your pants with one hand while holding her with the other. At this stage, the victim managed to bite your forearm and fortunately, she managed to escape. Your offending had major negative emotional impacts on the victim. The pre-sentence report for this offence described you as reluctant to even discuss the incident. It also concluded there was no evidence of remorse and that you displayed no emotion.

[26] While your previous three strike offences were for different charges, they both share a common feature with your present offending; that is the fact that in every case you instigated the offending without warning. It is equally disturbing that the presentence reports for both of your previous “strike” offences record your lack of remorse and insight into your actions. Thankfully, you now appear to be beginning to understand that you have a problem. Nevertheless, your continued resort to violence while in custody demonstrates that you have not yet fully come to grips with your violent tendencies.

[27] All three of these offences occurred within a period of approximately six and half years. You continued to offend on each occasion shortly after the end of your previous sentence. You did this even after you were warned about the consequences.

[28] In those circumstances, it is fair to say you are at a high-risk of re-offending, which is confirmed by the assessment in the pre-sentence report. There is a clear need to protect the community from you; one of the central purposes of the three strikes regime. For that reason, I do not consider that it would be manifestly unjust to order that you serve your sentence without parole.

[30] I am sentencing you to seven years’ imprisonment.

[31] That sentence will be served without parole.

R v Waitokia 
21 August 2018
[2018] NZHC 2146

Ngāpuhi ‘is probably the most incarcerated tribe in the world’

The Corrections Minister Kelvin Davis says that Māori make up over 50% of the population, and the Northland tribe Ngāpuhi “is probably the most incarcerated tribe in the world”.

Corrections Minister Kelvin Davis at the announcement.

Kelvin Davis (RNZ): ‘Ngāpuhi [probably] ‘most incarcerated tribe in the world’

Mr Davis said Māori make up over 50 percent of the prison population, and he wants that number reduced.

“Of that 50 percent, half again, are from Ngāpuhi, my own tribe, so this is personal.

“My tribe of Ngāpuhi is probably the most incarcerated tribe in the world, per head of population, so we really have to look at what we’re going to do differently as a country, to turn these figures around.”

Mr Davis said Māori must be included in the conversation, and is pleased half of the justice advisory group, set up by the Justice Minister Andrew Little and headed by the former National MP Chester Burrows, are Māori.

“If Māori make up more than 50 percent of the prison population, we should actually be talking to Māori about what the solutions are too.”

More than talking. Māori need to be prominent in implementing solutions.

“The question then becomes, ‘so, what do we do about it?’

“Because if it’s not unconscious bias, well then it’s conscious bias and we’ve got to make changes to make sure that Māori aren’t particularly picked on, or seen as the ones that are committing all the crime.”

Is it policing bias and judicial disadvantage for Māori? Or are Māori  proportionally more inclined to commit crimes. Probably some of all of those things.

He points to an instance in the last year near his home up north, where people were incredibly upset about the imbalance of justice.

“A couple of families who could afford justice, actually got a form of justice. Whereas people who couldn’t afford justice, for lesser offences, actually got a prison sentence. And that sort of stuff is not right.”

The cost of ‘justice’, of defending oneself in the court system, is a major issue. If you can afford a good lawyer your chances of being found not guilty or of a reduced sentence will be greater.

Mr Davis said they were looking at all aspects of the system to make sure it was fair for everybody.

He said the justice summit this week is an opportunity for people from all parts of the system to have their say.

“We’re expecting a lot of thought and a lot of ideas to come out of this, and we’ve got to sift through and see which ones are the best ones that can make a short term difference, medium and long term differences,” he said.

It isn’t going to be easy turning poor crime and imprisonment statistics around for Māori, but different approaches have to be tried, by the police, by the judicial system, and probably most importantly, by Māori communities and iwi.

Davis can play a significant role in finding social and judicial solutions for Ngāpuhi in particular.

And there are wider issues that probably contribute to the problems up north. RNZ: Little meets with Auckland-based Ngāpuhi members

The Treaty Negotiations Minister, Andrew Little, has met with hundreds of Ngāpuhi members based in Auckland this weekend to discuss the contentious claim.

Ngāpuhi have been quite divided on their treaty claim.

Child sexual abuse – hate or condemnation

I think that most people in New Zealand would strongly condemn child sex abuse, if not hate it.

The handling of child sexual abuse in churches has justifiably attracted scrutiny and condemnation. The Catholic Church has been found guilty of aiding and abetting on going abuse through inaction, failure to perpetrators to account, and shielding them from the law.

The report from The Spinoff is also disturbing – Silent lambs: Child sexual abuse and the Jehovah’s Witnesses

Best known for their door-to-door evangelising, Jehovah’s Witnesses are on a quest to save the ‘wicked’ from damnation. For victims of sexual abuse within the organisation, however, that quest has seen perpetrators shielded from justice. Amy Parsons-King has met several survivors as part of an investigation for The Spinoff. These are their stories.

The sexual abuse began almost immediately, and continued across the years Parkes and his family lived in the flat. Even after he and his wife found their own home, still it continued.

When Naomi was 15, her father, a senior member, or “elder”, of their New Brighton Jehovah’s Witness congregation, became aware of the abuse. He was furious and asked fellow elders to investigate.

Why didn’t he ask the police to investigate?

Under Jehovah’s Witnesses protocol, when a member of the organisation is alleged to have committed a serious “wrongdoing”, elders are instructed to confront the accused. When presented with the allegations, Parkes admitted to sexually abusing her, Naomi says. Parkes confirmed the abuse took place when The Spinoff spoke to him earlier this year. At the time, Parkes’ confession meant a judicial committee was formed to determine his level of repentance, and what disciplinary action should be taken.

The hearing was held at Parkes’ congregation. Naomi attended with two male elders, as did Parkes. “I basically had to say everything that happened in front of four men and my abuser,” she says.

That’s an appalling way to handle it.

Despite Parkes’ confession, the blame was shifted onto her, Naomi says. “He made comments that I seemed older than what I was, and that I enjoyed the attention he gave me. I did enjoy it in the beginning. He’d brush my hair and talk to me, but I took nothing from that. There’s nothing I put out there as a 10-year-old girl to sexually entice him. He pretty much made me feel like I asked for it.”

Victim blaming is common. In this situation it is despicable.

Elders ruled that Parkes’ punishment for sexually abusing Naomi across several years was to be “disfellowshipment”, a sanction which sees a wrongdoer excommunicated, with members directed to cease all links. Protocol requires that elders advise the congregation that the disfellowshipped person is no longer a Jehovah’s Witness. In Parkes’ case, as in others investigated by The Spinoff,  church members say they were not made aware of the nature of the offending that led to the disfellowshipment.

The judicial committee’s proposed compensation for Naomi’s trauma, to “help get her through”, was extra Bible studies.

Parkes’s alleged offending against Naomi was never reported to the Police.

That’s just one example.

Naomi’s experience is not unique. It fits a pattern of experiences recounted in recent years by people who allege they were sexually abused as children within the Jehovah’s Witness organisation. In her case, and in others, the process by which such allegations were dealt with emphasised internal investigation, judgment and punishment, without recourse to criminal prosecution.

It should be the victim’s prerogative whether they report abuse to the police, but in this sort of church situation it would be very difficult for children and young people to do.

According to one former Jehovah’s Witness elder the child protection policies within the organisation are so lacking that some estranged members describe it as “a paedophile’s paradise”. Paul Quilter, who spent 35 years as a member of the organisation, including 10 years as an elder in a Hamilton congregation, told The Spinoff that when he first saw that description used on an ex-Jehovah’s Witness forum he thought it was outrageous.

“But then when you actually read the reports of victims and you see how they were told to only trust fellow Witnesses because, everybody outside the organisation was worldly and ‘bad’ and therefore not to be trusted, you realise this type of mentality makes reporting child abuse to authorities almost impossible.”

And this is based on Biblical adherence.

The organisation demands strict and literal adherence to its Bible, The New World Translation of the Holy Scriptures. Any perceived wrongdoing of Jehovah’s Witnesses including “fornication, adultery, homosexuality, blasphemy, apostasy, and similar gross sins” are investigated through what is called a “judicial committee”. For such a proxy court to even be established, a 2000-year-old biblical principle is applied to substantiate the wrongdoing. This “two witness rule” derives from scriptures such as Genesis 19:15, which states: “No single witness may convict another for any error or any sin that he may commit.  On the testimony of two witnesses or on the testimony of three witnesses the matter should be established.”

The Church should not be investigating at all, let alone using processes that having nothing to do with modern law.

Naomi says she is appalled to hear Parkes, much like Debbie’s abuser Owen Tutty, has been reinstated within the Jehovah’s Witnesses. “There are plenty of children in the congregations, there always are,” she says.

“He could be sitting next to one right now.”

If claims in the Spinoff report are credible – and there seems to be sufficient cause for concern – there should be something like a Commission of Inquiry into this.

Do Greenpeace causes deserve immunity from prosecution?

I don’t think there’s a simple answer to this – protests and degrees of lawbreaking and importance of causes can vary a lot.

But Russel Norman and co-defendant Sara Howell are claiming that if they are convicted for “low level civil disobedience” it would prevent other protests for fear of prosecution.

There are ways to protest without breaking the law, but that’s not part of this story.

Stuff:  Greenpeace activists oil ship protest was just ‘low level disobedience’

Greenpeace executive director Russel Norman and fellow activist Sara Howell appeared in Napier District Court on Friday to apply for a discharge without conviction after admitting a charge of interfering with an oil exploration vessel.

The prosecution

Crown prosecutor Cameron Stuart said the pair caused significant disruption and danger and there was a high level of perseverance and premeditation by the defendants, as evidenced by the fact they acknowledged they rehearsed their moves in advance.

Their actions posed huge risk to them and to the ship’s crew and sensationalised what would have been a peaceful and legal activity”.

“This hearing is not about the morality of the law. It’s not about oil. It’s not about climate change,” Stuart said.

He said the consequences of a conviction would not be out of all proportion to the gravity of the offending. He said the pair had leveraged what they called an “unjust prosecution” as a means of publicising their views.

This raised questions as to how their reputation could be damaged if they were convicted, he said.

The defence

Norman and Howell were represented by Ron Mansfield, said the pair were devoted to fighting climate change and the burning of fossil fuels.

Their views were genuine, well-held, and designed to care for generations to come, Mansfield said.

He said the pair had entered the water at a distance from the vessel that permitted it to avoid them without too much disruption.

He said the danger had been “completely overstated” and the pair could have been removed from the water at any time.

Mansfield said the offending was “low level civil disobedience” and it would be concerning if others undertaking such protests were prevented from doing so because they feared being convicted.

The judge

Judge Arthur Tompkins said that argument “cut both ways” and there may be an argument as to why a conviction was necessary.

Judge Tompkins said other protesters had been convicted in the past and this had not had the “chilling effect” Mansfield suggested.

The verdict – not yet

Judge Tompkins reserved his decision. The pair were remanded until September 24.

The pair faced a maximum penalty of 12 months’ imprisonment, or a fine of up to $50,000 for the offence of interfering with or coming within 500m of an offshore ship involved in oil exploration.

The discussion

Protest is an important part of a democratic country.

Laws are generally to protect safety and freedoms.

The offence of interfering or coming close to a ship involved in exploration was contentious. From NZ Petroleum & Minerals:

People are free to protest on the water as they are on land – provided they do not interfere with structures or vessels involved in lawful petroleum and minerals activities.

While a number of laws cover activities at sea, provisions specific to offshore petroleum and minerals activities were introduced following protests that hindered a seismic survey vessel in 2011.

In May 2013 the Crown Minerals Act 1991, which governs the allocation of the Crown’s petroleum and mineral resources, was amended. New offences were introduced for damaging or interfering with structures or ships being used offshore in prospecting, exploration and mining activities – including incursions into specified Non Interference Zones.

Green MP Gareth Hughes in parliament 13 April 2017:

GARETH HUGHES (Green) to the Minister of Energy and Resources: Does she agree with Dr Russel Norman, who said that section 101B(1)(c) of the Crown Minerals Act 1991, known as the Anadarko Amendment, was “put in place by the Government to protect the interest of big oil and to stifle dissent”?

If the “Anadarko Amendment” is all about protecting people’s safety, why does it apply only to the oil and mining industries, and is this simply a case of one law for us and one law for oil?

Can the Minister confirm that that 2013 amendment, used to charge Dr Norman, was passed under urgency with no consultation and received no New Zealand Bill of Rights Act check, and that polls at the time showed 79 percent of Kiwis wanted to see it withdrawn or sent back to committee?

I remember the opposition to the bill, but I don’t remember the poll, and I can’t find it..

 

 

Drunken sleepwalking successful defence for indecent assaults

A Wellington man has had two charges of indecent assault dismissed asking claiming a defence of sleepwalking after getting drunk. He has a prior conviction for indecent assault in similar circumstances.

I thought our courts had moved away from allowing drunkenness as an excuse for crimes.

The police considered appealing but Crown has decided against it.

Herald on Sunday: Sexomnia defence sees man walk on indecent assault charges

A judge has dismissed indecent assault charges against a man, accepting he was sleepwalking at the time after getting drunk.

The Herald on Sunday can finally reveal the story of Tristan Corey Scott after fighting to have his name suppression lifted.

But the mother of the two teenage girls who were indecently assaulted in the latest case told the Herald on Sunday the verdict was “atrocious”.

I can understand her response.

The teenage girls, who were sleeping in separate bedrooms, gave evidence that they awoke to find Scott in their rooms, touching their legs, according to court documents.

He and his partner had spent the night socialising with the parents of the complainants at their home.

The court heard that Scott, who lives in Wellington and works in IT, had been drinking heavily.

It is the fifth known case where sleepwalking or parasomnia has been used as a defence in a New Zealand court and it is cropping up more around the world.

Could this be used as a defence in more serious crimes, like rape and murder?

Scott has prior form.

Scott, 35, has a previous indecent assault conviction from 2011 after pleading guilty to molesting a woman who was also asleep in her bed. He had been drinking alcohol prior to the incident.

This and a third alleged instance that did not result in charges, in which Scott entered a darkened house uninvited, were cited by police as showing a propensity to enter rooms where women were sleeping.

That’s certainly how it looks. And now he has a legal excuse for this behaviour.

Expert evidence about the condition was given by a sleep specialist who Scott had approached for treatment.

District Court judge Jim Large found that the girls were indecently assaulted by Scott, but dismissed the charges saying he was not conscious of what he was doing because he was in a state of automatism by way of parasomnia, caused by excessive drinking.

The judge said he found the complainants to be reliable witnesses and was sure that Scott committed the acts they described.

Automatism is a legal term meaning the performance of actions without conscious thought or intention.

Parasomnias are a group of sleep disorders of which sexomnia is one. Sometimes called sleep sex, sexomnia is similar to sleepwalking but causes people to engage in sex acts.

I see two problems with this.

One is that people can be held not responsible for what they do when sleepwalking.

The other is that as this defence has been successful it could lead to more claims of sleepwalking while offending.

Police told the girls’ mother that the prosecutor took issue with aspects of the decision relating to parasomnia and wanted to appeal to the High Court but following a review by the Deputy Solicitor General this did not proceed.

There must have been good reasons for not appealing, but this leaves concerns.

Scott can be named following a decision in May by Judge Large dismissing Scott’s application for permanent name suppression. Scott did not seek name suppression during the trial but did so after the Herald on Sunday approached the court for information.

Good work by Herald on Sunday – if Scott has a habit of indecently assaulting women and girls after drinking then people who associate with him should at least be given fair warning of the risks.

Another problem with the verdict is that there seems to have been no Court requirement that Scott address his problem with heavy drinking. If he has a tendency to sexually assault people after drinking then he shouldn’t drink.

Court of Appeal rules Kim Dotcom eligible for extradition

The Court of appeal has upheld findings by the District Court and the High Court that Kim Dotcom is eligible for extradition to the United States, but Dotcom quickly signalled what was expected, he would seek leave too appeal from the Supreme Court.

RNZ: Kim Dotcom eligible to be extradited to US, court rules

The Court of Appeal released its finding today, upholding the decision of the High Court and District Court.

Mr Dotcom and his three co-accused – Bram Van der Kolk, Matthias Ortmann and Finn Batato – are eligible for surrender on charges of money-laundering and copyright breaches related to the defunct file-sharing website Megaupload.

The court also ruled that evidence Mr Dotcom and his co-accused said they were prevented from calling would not have affected the decision to extradite.

“The evidence the appellants say the United States wrongfully prevented them from calling would not affect the question of whether there is sufficient evidence to make out a prima facie case.”

From the judgment:

[332] We accordingly confirm the eligibility determination made by the District Court. We direct that the District Court should now proceed without further delay to complete its duties under s 26 of the Extradition Act in accordance with the determination.

[333] We dismiss the appeal against Gilbert J’s decision to decline judicial review.

RNZ:

The decision on extradition now rests ith the Minister of Justice Andrew Little, according to the Extradition Act.

That may not be the case, given Dotcom’s response:

But three different courts have supported extradition.

Dotcom has the money to take this to the highest judicial level, and his money has bought him years of time, but the time at least could be running out.

Stuff:  Kim Dotcom loses appeal against extradition, will take case to Supreme Court

After losing their case against extradition in the North Shore District Court, and then on appeal in the High Court, the four men had appealed to the Court of Appeal, which on Thursday rejected their arguments.

Dotcom said he was “extremely disappointed” by the decision, and would appeal it to the Supreme Court.

“My legal team are confident that the Supreme Court will hear the appeal given there are such significant legal issues at stake,” Dotcom said.

Dotcom, in his response to the judgment, said: “The court’s interpretation of the relevant copyright provisions cannot be right.

“The precedent set is concerning and has ramifications in New Zealand outside my case. The decision exposes Internet Service Providers to criminal liability for the misuse of their services by users, as is claimed against me.

This is something that, as any rudimentary review of the legislative history makes clear, and the High Court accepted, was never intended. The Court was taken through that history but has not referred to it.

“As people will know, I am prepared to fight to get justice, whether it is for me or others,” Dotcom said.

More to the point, he is trying to avoid facing the US justice system.

However, acting Prime Minister Winston Peters said the possibility of appealing wasn’t clear cut.

“I am told he seeks to appeal, whether he can or not is a matter of debate.

I think that seeking leave to appeal from the Supreme Court will happen before it goes to the Minister of Justice for a final decision.

 

 

Arrest in relation to alleged sexual assault at Labour camp

A week after Andrew Kirton announces he is leaving his job with Labour.

Police are believed to have arrested the man at the centre of the Labour Party summer youth camp sexual assault allegations.

Newsroom understands the man, who Labour said at the time was not a party member, was arrested and charged yesterday and will appear in a court in Auckland in the next week.

One victim told Newsroom last night: “To know that four months after the assaults occurred, that some action is finally being taken is fantastic. It feels like there’s some closure. After months of backtracks, lack of support and media coverage, its all coming to a head.”

Kirton resigned last Friday to take a government relations role at Air New Zealand but is expected to be in office when the Berryman report is received. His actions over the camp allegations were widely criticised but he was praised highly by the party president at the time and when his resignation was announced.

I expect suppression will apply to the victims at least, and probably initially to the person arrested. So no naming here please – this will be strictly enforced,

Bail law and remand prisoner numbers

A change to bail laws is credited as a significant reason for a rapidly increasing prison population, but a change in approach by judges has also contributed.

Minister of Justice Andrew Little has indicated he wants to change the bail laws, but this is a tricky political issue. If bail laws are relaxed it’s certain that any significant crime committed by someone on bail will be publicised as a failure.

Longer prison sentences without adequate mental health and addiction treatment also contributes to high levels of recidivism, but examples of that tend to not be publicised so much by those with tough on crime political motives.

RNZ: Relaxing bail laws: How risky is it?

In April, Justice Minister Andrew Little signalled the bail laws might be changed, as increasing remand numbers have seen the prison population balloon.

However, the families of people murdered by someone on bail want the law to remain as it stands.

Almost 1000 more people a year are now remanded in custody than before the bail laws were tightened in 2013, as a result of the murder of Auckland teenager Christie Marceau in 2011.

Her killer, Akshay Chand, was on bail at the time and living just 300 metres from her home, having already been charged with kidnapping and threatening to stab her.

The sad case of Christie Marceau is often used in arguments in favour of being tougher on people charged with crimes (not tryed or convicted).

But some emphasis does need to be put on protecting people who have been threatened or are at risk of violence.

Dr Liz Gordon a social researcher, who is also president of PILLARS, a group helping prisoners’ families, said the average number of murders in New Zealand each year was about 80.

She said when you put that figure alongside the extra 1000 people remanded in custody, it was an emotional over-reaction to suggest Andrew Little would have blood on his hands if he loosened the bail laws.

But emotional over-reactions can be expected from people with political motives. The ‘Sensible Sentencing Trust’ plays on fears of crime.

David Farrar ran a series of posts publicising some of the worse criminals who could potentially receive lighter sentences if the 3 strikes law is scrapped – ‘could’ should be emphasised, as judges usually go to great lengths to apply sentences appropriate to both the convictions they are dealing with and the records of the criminals.

“The mathematics simply doesn’t add up. They’re not going to all get out of the prisons and start murdering like mad and if you find good alternatives for them, perhaps you can actually stop them ever having to go to prison again.”

I don’t think anyone is arguing there should be no bail – I remained ‘at large’ despite a private prosecutor’s demands that I be incarcerated.

We have to have non-imprisonment for many offences and offenders. The difficult trick is where to draw the line.

Dr Gordon agrees Akshay Chand should never have got bail, as what he did was a foreseeable crime, but she said Mr Little needed to take a dispassionate view of what was best before making a final decision on the bail laws.

Chand getting bail was an error of judgment – as things turned out, it’s easy to be wise after the subsequent murder. I’m sure some people who have threatened others haven’t murdered while on bail.

Dr Gordon said there were also other downsides to keeping people on remand in jail, particularly younger offenders, as the remand units are active recruitment centres for youth gangs.

Remanding in custody can set up young first time offenders for further offending.

She is also concerned that, despite it costing more than $100 million a year to keep those 1000 extra people remanded in custody, they received no support while there to improve their lives.

If it costs money to protect the public then money needs to be spent. But…

“Those people are in a very difficult position. They often can’t see their children because visiting days for people on remand is often mid-week and the kids can only visit on the weekend.

“They don’t get access to training courses, drug and alcohol treatment and so on because those things aren’t offered most of the time to people on remand because the argument is [they] … aren’t sentenced and therefore can’t be forced to do programmes [so] … it’s not worth offering them to them.”

More secure medical and treatment facilities may be one way of dealing with this. That means more money in the short term.

Andrew Little was approached for comment, but his office said he would not speak about the bail issue until after a justice summit later this year.

Newshub (16 June 2018): ‘Everything is on the table for justice reform’ – Andrew Little

Justice Minister Andrew Little says “everything” is on the table when it comes to justice reform, including changes to bail, parole and sentencing laws.

Mr Little said that the current model “isn’t good enough” and the 60 percent reoffending rate within two years points to a “failure” in 30 years of punitive criminal justice policy.

“We will have to look at the parole act, the bail act, and the sentencing council – get some cohesion around our sentencing,

“But I think the real game changer is what we can do inside our prisons, and how we can make it systematic across our prison network.”

National’s Mark Mitchell has strongly criticised the Government’s proposed changes, particularly softening bail laws, saying that 98 percent of prisoners are ‘serious criminals’ who would be a danger if released.

The minister rejected that assertion, saying Mr Mitchell “has his figure wrong”.

“Over half the prisoners who enter the prison system in any one year are there for non-violent [offences], what I would characterise as ‘low-level’ offences.”

The minister says that of the criminals remanded in custody (those who are in prison awaiting trial or sentencing) 59 percent get a custodial sentence – but 41 percent do not.

With the number of prisoners on remand getting close to 2,000 this means about 800 of them will end up not being sentenced to prison. That’s a high number.

“The numbers alone tell you, we’ve calibrated our remand decision-making the wrong way. We are remanding too many in custody.”

That’s how it looks – but it can be difficult predicting which people arrested will end up in prison after conviction.

And it doesn’t take many ‘mistakes’ on bail for there to be high profile publicity – one violent assault would be enough to try to clamp down on bail.

Unfortunately bad crime happens despite the best efforts of the police, the justice system and the Minister of Justice and Parliament.

That justice summit could be interesting.

‘Sensible sentencing’ spokesperson sees sense and tries a different approach

A Sensible Sentencing Trust Spokesperson seems to have seen sense, has quit, and is switching from promoting longer prison sentences to focussing more on rehabilitation and reintegration.

And Minister of Justice Andrew Little labels leaders ‘loopy’ and ‘callous’ 

Scott Guthrie, a senior figure and spokesman for Sensible Sentencing Trust, told the Herald he had quit the trust believing it had achieved little that made New Zealand safer and that longer prison sentences were not the answer to crime and justice problems.

He has now set up the new Transforming Justice Foundation, saying rehabilitation and finding ways to help prisoners rejoin society without reoffending is the key to cutting crime.

That’s the direction all parties in Parliament are increasingly looking – despite grizzling about the suggested ditching of 3 strikes David Seymour (ACT) has proposed incentives for prisoners to get qualifications while inside.

Guthrie and the Foundation are set for a meeting with Minister of Justice Andrew Little in the next fortnight. In contrast, the Sensible Sentencing Trust had one meeting last year and hasn’t been seen in the Beehive since.

The Trust has previously held a pivotal role in crime and justice debates, pushing for longer sentences and more restrictive bail and parole conditions.

In an interview with the Herald, Little said he had not met the group this year.

“I have a problem specifically with Garth McVicar who has a bit of a track record of what I think are some pretty loopy views”.

Most recently, there was McVicar offering police “congratulations” over the shooting of a young man which meant “one less to clog the prisons”.

“It completely trivialised the position of police officers in that situation. I thought there’s something unhealthy about that set of views that I don’t think is helpful to a debate about criminal justice reform.”

Little also had concern about a comment on a blog by Sensible Sentencing Trust lawyer David Garrett, the former Act MP.

In the wake of the Herald reporting a spike in suicides in our crowded prison system, Garrett wrote: “No one with half a brain cares if the kind of people featured on this blog under the title ‘Meet a second striker’ commit suicide in jail… and neither would you, if you cared a fig for their victims.”

Little said: “The idea you just callously say it’s okay if they commit suicide – that’s not a set of values that I want to be anywhere the debate about reforming our criminal justice system.”

National’s justice spokesman Mark Mitchell said he would meet with any group that wanted to be involved in the crime and justice debate.

However, he said he did “not support or condone” comments such as those made by McVicar or Garrett.

‘Tough on crime’ is gradually changing to having to make tough decisions about the failure of our justice and prison system to prevent many prisoners from re-offending.

Guthrie told the NZ Herald he had an “amicable” split with the Trust.

“It certainly felt like a big step but I couldn’t see the sense in carrying on and getting nowhere quickly.

“It’s not easy when you have a board of trustees and committee that says we’re going to focus on punishing people harshly.”

Guthrie said he was opposed to an advocacy line which insisted on increasingly tougher sentencing.

“It’s not working. It’s a big shift but it’s a shift we need to take.”

Guthrie said he believed in prison – “I’m certainly not soft on crime” – but he was fully supportive of Little’s aims to reduce the prison population through early intervention, rehabilitation and projects that helped inmates safely return to the community.

Sounds more sensible than the hard line ‘Sensible Sentencing’ approach that has not worked well.

Guthrie was backed by former police inspector Tania Baron, who had joined the Transforming Justice Foundation after resigning from police in April.

Baron said reducing the percentage of those who reoffended was key to making New Zealand safer.

I can’t find a website for the Transforming Justice Foundation, but perhaps they don’t need one if they are getting high level access.

The Office of the Prime Minister’s Chief Science Adviser released a heavily-researched report in March which said simplistic “tough on crime” dogma from “vocal, professional lobbyists” had led to media and political pickup and a higher prison population.

But instead of making New Zealand safer, the report found prisons were “extremely expensive training grounds for further offending”.

We keep imprisoning more people in response to dogma not data, responding to shifting policies and media panics, instead of evidence-based approaches to prevention, intervention, imprisonment and rehabilitation.”

But McVicar isn’t giving up.

In a recent interview with the Herald, McVicar dismissed academic and scientific advice around criminal justice.

He said politicians should ignore research-based evidence and listen instead to public opinion.

Justice by public opinion is a really dumb idea.

Report on preventing youth crime

A report written by justice sector science advisor Dr Ian Lambie, titled It is never too early, never too late: A
discussion paper on preventing youth offending in New Zealand, urges agencies to adopt “developmental
crime prevention” model.


Principal Youth Court judge welcomes new report on tackling youth crime

A report on addressing youth crime in New Zealand is a blueprint for change that needs to involve all agencies
and communities, says Principal Youth Court Judge John Walker.

The report found the number of offenders in the youth-justice system is decreasing, but more needed to be
done to understand youth offending.

“With its focus on rehabilitation, reintegration and restorative justice, the report highlights that New Zealand
has an innovative youth justice system that works well to address offending by people aged 14 to 17.

“However, if we really want to be serious about getting to the root causes of youth crime, it shows we need to
tackle those issues when they’re children, not when they turn up in the youth justice system at 14. Too often
in the Youth Court we’re playing “catch up”, dealing with long standing issues that could have been addressed
many years before.”

A key issue the report highlights is that the causes of youth crime are intergenerational and linked to problems
within families and communities, Judge Walker says.

“When the research shows that 80 percent of child and young offenders grow up in homes where family
violence is present, breaking this cycle of violence from one generation to another is critical.

“To address the underlying issues and the well-entrenched behaviours we see in young people and young
adults, we must target every point in the timeline. We need to be pre-emptive, responsive, and adopt longterm
strategies.

“Regular visits to check on the health of toddlers, programmes to help parents and address the mental health
of mothers, tackling challenging behaviour by children and supporting early childhood centres and schools are
just some of the options the report highlights for addressing the issues that lead to youth offending.”

Judge Walker says young people do not grow up in a vacuum.

“Communities play an integral role in providing the framework within which young lives can be
reclaimed. What this report pinpoints is that change does not happen just by what we do, but by what
we do alongside others.”