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1 :Contents

Victims Rights

• 3.1 Legislation Review
• 3.2 Terminology
• 3.3. Services
• 3.4. Compensation

Reparation for Victims of crime

• 4.1. NZ Reparation
• 4.2. Current court system

Restorative justice

• 5.1. Restorative Justice
• 5.2. Recommendation

Relevant matters

• 6.1 Premeditated Murder
• 6.2 Repeat Offenders
• 6.3 Bail
• 6.4 Parole
• 6.5 Other Offenders
• 6.6 DNA
• 6.7 Victim Reimbursement

Police

• 8.1. Reversal of current system
• 8.2. Public Support
• 8.3. Criminal History
• 8.4. Disclosure
• 8.5. Right to Silence
• 8.6. Sentencing Act
• 8.7. Dangerous Offenders
• 8.8. Suspended Sentences
• 8.9. Age of Criminal Responsibility

Prisons

• 9.1 Prison Policy
• 9.2 Private
• 9.3 State
• 9.4 Violent Offenders
• 9.5 Other Offenders
• 9.6 Parole
• 9.7 Delayed Justice
• 9.8 Bail
• 9.9 Disclosure
• 9.10 Dangerous Offenders
• 9.11 DNA
• 9.12 Psychopaths

Conclusion

1 :Introduction

We congratulate the Law and Order Select committee on this inquiry into victim’s rights, while we applaud such an inquiry the Sensible Sentencing Trust believe that any such inquiry must be broad enough to deal with the systemic failings that has perpetuated and aggravated the chaotic situation that has created so many victims.

The Sensible Sentencing Trust has gained an intricate and in-depth knowledge of the law & order / criminal justice arena that many members of the community and indeed this Select Committee will not have, out of respect for that we have prioritized our submission in order of what is achievable given the political nature of the committee and time frame available.

Many of our recommendations are from observations and experience the Trust spokesman, Garth McVicar gained on an overseas fact-finding mission as part of a delegation with the Minister of Corrections in February 2006

Vision:

Well balanced and functional communities with a criminal justice system in which the needs and concerns of Victims are an integral part of that system.

VICTIMS RIGHTS

Reviewing legislation affecting victims, including the Victims’ Rights Act 2002

The 2002 Victims Rights Act does not give any legal status for victims, if a Judge or defence counsel wish to ignore the Act, they can and there is no legal redress the victim can take. The first change that is required is to give Victims legal recognition with a “Victims Code of Practice” to ensure all agencies and officials are aware of what their obligations are.

Considering the terminology used for Victims

The Trust is still working on the terminology in consultation with Victims.

Identifying Services available for Victims

Since establishing the Sensible Sentencing Trust in 2001 we have become very aware of the failings of our current systems when it comes to the treatment and rights of victims. In the modern “rights” focused environment the roll of victims in our justice system is very much in its infancy.

We have carefully considered the various options available and have come to the conclusion that as the victim issue evolves the challenges will be very demanding, it is our opinion that establishment of an independent agency would be the best option to meet these challenges.

Our recommendation therefore is:

The establishment of Guidelines Council for Victims of violent crime:

We further recommend that such a Council be a non-government agency, to be established by a partnership between government, Sensible Sentencing Trust and other victim focused organizations and separate to Victims Support.

Examining the concept that criminals owe a debt to individuals as well as society, including issues of compensation and reimbursement of costs.

At a time when people most need to feel empowered our existing legal system leaves victims feeling totally frustrated and powerless, the criminal has offended against the victim as well as society yet it is only society through the Crown who are heard. The only way a Victim can be heard at present is venting their frustration generally outside the Court; this must change. Victims need a voice, either directly or by representation to be heard inside the Court - where it’s important, where it really matters, and part of the Court process - not outside the process of Court.

TRUE RESTITUTION AND REPARATION SCHEME FOR VICTIMS OF CRIME

Many victims of crime are left frustrated at the injustices of our legal system and financially destitute as a result of criminal activity; very little Judge ordered restitution is actually paid even though the offender is given a discount on their sentence for promising reparation.

We recommend that a GST type levy be placed on ALL fines and crimes to become a consolidated victim reparation scheme being financed by those committing the crimes and not the taxpayer.

We further recommend that a remission on sentence is only given when full victim reparation is paid and legal aid and Court costs have been reimbursed to the Crown.

New Zealand Reparation:

We believe it is unfair for the Taxpayer to shoulder the burden of any Government funded victim reparation, the Sensible Sentencing Trust advocates a two-stage reparation scheme.

• Mandatory reparation orders in all cases, [murder included] with no discounts on sentence until reparation is paid.
• A GST type levy on crimes and fines to be paid into a ring-fenced fund to enable and ensure the following:
  a) Allow victims who do not want their reparation to contribute to the fund.
  b) Ensure reparation is paid in all cases.

Examining the effect of the current court system on victims, including the role and status of complainants during court proceedings and the adequacy of court room layout and facilities

The existing Court system is very traumatizing for Victims, especially when it bows-and-scrapes to every whim of the criminal or defence, such as Judges having to remove any intimidating clothing as in the case of Michael Choy. Most criminal’s end up in Court because of a flagrant disregard for law and order and our Courts. Courts and Judges must enforce respect for the arm of the law.

Most of the complaints we receive are due to Judges bowing to defence demands and delaying tactics and unnecessarily delaying proceedings, frivolous appeals are another area causing unnecessary anxiety, defence lawyers who waist the Courts time with frivolous appeals should be warned that they will face a fine and their client could have the sentence increased.

Court room layout and parking is also causing huge stress to victims with many resenting having to sit with or facing the criminal’s whanau and friends, having to find a park in a busy city is bad enough, but having to find it on Court day is even worse.

Most of these things seem relatively minor, but added together in one episode they become the catalyst that destroys any semblance of a justice system for many Victims.

RESTORATIVE JUSTICE

Examining the place of restorative justice programmes in the criminal justice system and their impact on victims

Restorative justice, according to the New Zealand Ministry of Justice, is a “process to involve, to the extent possible, those who have a stake in a specific offence and to collectively identify and address harms, needs and obligations, in order to heal and put things as right as possible.” It is an approach to offending that sees crime as a violation of people and relationships rather than just a violation of the law and state.

Judges preparing to sentence an offender after the latter has engaged in a restorative justice conference are faced with a daunting task. The Sentencing Act not only requires the judge to take the outcome of the conference into account; they must also consider a variety of sentencing purposes. These include holding the offender accountable, providing for the interests of the victim, deterring others, denouncing the conduct, and protecting the community from the offenders.

Recommendation:

While restorative justice may have been a good idea in principle it is now in deadly danger of self-destruction. The pre-sentence restorative justice model New Zealand has adopted has been hi-jacked by the criminal fraternity and is now doing endless damage to the concept. Criminals get a discount on their sentence, defence-lawyers get involved and facilitators are consistently poorly trained and record keeping is abysmal.

The Sensible Sentencing Trust recommends the introduction of a post-sentence restorative justice model to give all participants the opportunity to get used to the ideals and principles of restorative justice. Their would be no incentive other than genuine remorse for a criminal to attend such conferences and Victims would be more inclined to participate and defence lawyers would not have a roll to play.

FAMILY GROUP CONFERENCES

Family group conferences are another disaster, the idea may have been well meaning but in reality they have been hi-jacked by the criminal fraternity and are a complete and utter farce that is making a complete mockery of our justice system.

The conference is normally held as close as possible to the offenders residence to cause as little disruption to their lives, the victims are often required to travel, even though the victim is supposed to be consulted this very rarely happens.

A typical family group conference will have the offender or offenders and their support people normally between 6 and 10, lawyers for the offenders – one for each – and the victim and maybe one support person. The offender’s family treats it as a special occasion and brings KFC or McDonalds and everything that goes with it.

Lawyers try to pressure victims to accept the terms most advantageous to the offender and will not allow offenders to write letters of apology or remorse in case they incriminate themselves.

Recommendation:
Lower the age of criminal responsibility and ensure youth offenders know that breaking the law will have very real consequences.

REDUCING CRIME

A sensible path to reducing the number of victims and level of imprisonment and crime in New Zealand:

An end to New Zealand’s rights based offender centered legal system that takes any concept of responsibility and accountability away from offenders.

Introduction of a responsibility based, victim centered justice system that focuses on placing the responsibility on the offender from the first crime.

If we are to have a truly effective criminal justice system it is essential that the victims of these criminals are given priority consideration. This would include the following:

Life to mean Life for premeditated and/or aggravated Murder:

This would allow the families of murder victims the opportunity to restart their lives without the trauma of facing parole hearings and the reality of the offender being released.

Violent / Repeat or sex offenders:

This category of offender has made a lifestyle choice, and must be treated as such.

Bail:

Many of these offenders are receiving bail and re-offending and/or revictimising the original victim while on bail.

Recommendation:
Amend the Bail Act so that this category of offender is not eligible for bail.

Parole :

The legal system is such that by the time an offender reaches this category they have had numerous offences without any true punishment or rehabilitation and many are re-offending.

Recommendation:
End Parole and introduce supervision at end of Judge given sentence for all violent / repeat and/or sex offenders.

Ensure this category of offender serves their Judge given sentence with a system of community re-integration at the end of the sentence; this will give psychological-services an opportunity to re-habilitate the offender.

All other offenders:

Court imposed sentences at present are a charade and the existing eligibility to parole at one-third of sentence has undermined the public’s confidence in the Courts with a flow-on detrimental effect to the police. The continual parole appearances cause added stress and unnecessary anxiety to victims.

Recommendation:
It is essential that the Courts and Police have the confidence of the public; we recommend that the existing one-third parole system be scrapped and all offenders should serve a compulsory two-thirds.

Compulsory DNA testing for all criminal convictions.

As earlier recommended many criminals are repeat offenders with some estimates showing 90% of crime is committed by 5% of the population.

Recommendation:
Introduction of a compulsory DNA testing scheme to assist with the solving of crimes and breaking the cycle of offending.

Victim input into sentencing:

Offenders owe a debt to the victim as well as the Crown but our legal system only allows the Crown to set the sentence.

Recommendation:

That victims have a constitutional right of input into sentencing.

• Provide secure confinement for diagnosed paranoid psychopaths.
• Consultation with Judges, Police and Non-Government agencies.
• That the alternative sentence of home-detention or community service only be considered where the offender has completed the following:
  Reimbursement to the Victim
  Paid all associated costs, prosecution, solicitors and courts
  This may mean the offender needs to find a family member or sponsor to cover the above costs.

What Police need to reduce crime / reduce victims:

Gangs either sanction, tax or control 90% of crime in N Z, street law is the gang always collects, they will gang block the wife, daughter, niece etc of the person who owes them a debt. Gangs have no boundaries, they work on fear - so they cannot afford to have a debt go uncollected - it is bad for business. When it comes to fear of the law or the gangs, criminals consider the law the lesser of the two evils and they know and play the game.

If they are caught they generally know they will get bail, when on bail they go hard out committing crime, as they want to have their debt to the Mob paid before they go to jail. It is also well known amongst the criminal fraternity [lawyers included] that if they drag out proceedings long enough the chances are they will be offered a plea bargain, once that happens the slate is wiped clean and the criminal can plead guilty to the lesser charge and be entitled to full remission or maximum discount for an early guilty plea.

Many lower socio-economic communities are hot-beds of crime, the whanau or extended family concept in these communities means that most members of the community either knows someone or associates with someone directly involved in criminal activity. The Mob influence in these communities is such that fear ensures no one speaks out - and crime flourishes.

Given the above scenario the Sensible Sentencing Trust is of the opinion that the Parliament must put in place the following mechanisms to ensure the police are given every opportunity to fight crime and reduce victims.

• Reversal of current “Rights” based offender centered legal system to “Responsibility” based Victim focused justice system.
• To recapture public support for the police: Substantial separation of traffic enforcement from other policing, with separate personnel.
• No bail or parole for violent offenders or sex offenders or any offenders with any previous criminal history.
• Balance obligations of disclosure to defence lawyers with obligations of disclosure by the defence to prosecution.
• As Britain has done end the so-called right to silence so that courts can draw conclusions from defendants’ failure to present evidence or subject them-selves to cross-examination.
• Review the Sentencing Act to ensure sentence given is the sentence served. Post sentence reintegration would be additional and served under post sentence supervision.
• Confirm the police right to warn communities of potentially dangerous offenders returned to their midst.
• Suspended Sentences: N Z to adopt a suspended sentence system where minor type offenders are given a suspended sentence on the proviso they do not re-offend, any re-offending would attract a new sentence to be served cumulatively with the suspended sentence.
• Age of Criminal responsibility: The age of criminal responsibility in the UK is 10; we recommend NZ follows the UK example and should adopt a similar age of criminal responsibility.

PRISONS, PAROLE AND OTHER

Introduction of a user-pays scheme in prisons so all offenders are required to work and pay for their keep and learn valuable skills for their eventual reintegration. We emphasize that the role of prisons is not to become education centres, there is no doubt our education system is failing many young people but that is not, and should not be the role of prisons.

New Zealand has become the flag-ship for the user-pays no-subsidies concept that is being promoted with all our trading partners in the agricultural industry; we believe a unique opportunity exists for this country to operate a similar system in the criminal justice / prison arena.

Prison policy:

New Zealand should consider adopting the British penal policy which appears to have reduced the potential for inmates to be paid compensation for any breach of their rights.

Private Prisons:

Since 1995 all new prisons in the UK have been financed, built and managed by private enterprise with 25 year contracts, there are many pros and cons but essentially it gives a basis for comparison and removes the tax-payer from immediate burden of establishment costs.

Private / State partnership:

As evidenced by Latchmere prison an opportunity exists for the Corrections Dept. to enter into formal contracts with private enterprise to be involved in work sponsorship programs essentially to target gaps in the work force but also to develop community ownership and responsibility.

Serial and or violent offenders:

It appears that all countries are experiencing similar problems with serial offenders; it appears to be a fact of life that some offenders are impossible to reform, to keep the public safe there is no alternative but to keep this category of offender in prison.

Non-serial offenders:

First time and misdemeanor type prisoners need to be housed and dealt with separately to repeat hard-core offenders.

Parole:

The existing parole structure should be abolished; a new parole regime should be introduced with parole being post-sentence and served under strict post-sentence supervision. The existing parole system has destroyed the public’s confidence in our Court system with a trickle down effect into police.

Speed and certainty more important than severity:

Justice delayed is justice denied, there is considerable public demand for a Judge given sentence to mean what it says; even if this means a reduction in the tariff certain crime attracts, existing sentences for violent offences and sex offences would need to be maintained.
Note: to speed up our tedious Court proceedings may require night sittings.

Bail:

End the eligibility to Bail for violent and / or repeat offenders and speed up the Court process to ensure offenders are sentenced with the minimum of delay.

Disclosure:

The police and public have considerable concern that the laws around disclosure are giving an unfair advantage to offenders and resulting in the lowering of charges and in some cases charges being dropped altogether.

Dangerous Offenders:

Confirm the police right to warn communities of potentially dangerous offenders returned to their midst.

DNA testing:

Compulsory DNA testing for all convicted offenders.

Paranoid psychopaths:

At present many psychopaths are causing chaos in prison, making management and rehabilitation difficult or impossible. We recommend that a secure confinement for diagnosed paranoid psychopaths must be provided outside of normal prison confines.

CONCLUSION :

Parenting:

Any review of Victims Rights cannot be in isolation, such a review must include an inquiry into the number and cause of dysfunctional parents and families. It is time parents accepted their role in their children’s behaviour - their role as part of the problem and their role as part of the solution.

Education:

Good education and good parenting is the key to reducing crime, most of our prisoners are illiterate, making employment difficult if not impossible. The Sensible Sentencing Trust recommends an urgent review of our education system is long overdue to discover why so many young people have a poor education, no pride in themselves or their country and are turning to a life of crime. What has gone wrong?

The Sensible Sentencing Trust objective is to have well balanced and functional communities with a criminal justice system in which the needs and concerns of Victims are an integral part of that system.

Rehabilitation and Reintegration:

As was evidenced in the Dominion 16/2/06 rehabilitation and reintegration is a figment of the imagination of a by-gone era. The Sensible Sentencing Trust is firmly of the belief that certainty, responsibility and reparation would be far more effective tools in reducing crime. The prison systems of the countries we visited are now beginning to put the responsibility for crime back on the perpetrator by a system of individual contracts that holds offenders accountable and responsible for their actions.

Offenders are held responsible for any breaches of contract by a graduating scale of punishment starting at withdrawal of privileges and culminating in return to the normal harsher prison system.

When we talk about rehabilitation and reintegration in New Zealand we are essentially referring to the offender, the criminal, if we are serious about reducing the level of New Zealand’s prison population we need to focus on rehabilitation of the victim and put the responsibility where it belongs – on the offender.

This is now being evidenced in New South Wales where a Restitution Board pays the victim if the offender is unable and then ensures offenders pay restitution; this is proving to be successful in reducing offending.