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Sensible Sentencing Trust
By Steven Franks, ACT MP and Law and Order Spokesman
In case you have not heard that the Sentencing and Parole Reform Bill has been reported back I am writing to advise that it was released yesterday. There were many last minute changes in Committee and the Committee's report on the Bill was not finalised until the very last minute. That meant many of the media comments after the formal report back on Tuesday 12 February, were without the benefit of access to the report and the Bill. Accordingly some reports may have relied on the Government's handouts and press releases.
I set out in this letter the features of the Bill that will be of interest to many submitters. This is not intended to be a complete description. Features that receive adequate attention in the Committee's report, or which have been the subject of hype in Government press releases, will not necessarily be mentioned below.
Though the Committee failed to act on a number of the sensible suggestions from submitters they were not without impact. The members who heard the submissions felt the force of them. I believe the debate about this Bill and the continuing debate about criminal law and sentencing policy will have been improved by the time submitters put in to speak to Parliamentarians. I think this Bill is a step backwards but eventually we will catch up with the countries that have not accepted increase in crime as inevitable.
As well as the summary set out below I have produced for ACT an analysis of the Bill. It tries to uncover features that have been buried in PR verbiage. For example there are now welcome references in the Bill to the "interests of victims". The Courts and the Parole Board are directed to take account of them. Unfortunately, nothing in the Bill says what those interests are. Nothing says what a Court or the Parole Board must do to respect them. There is nothing to reconcile victim's interests with directly conflicting mandatory provisions that tell the Court to focus on the criminogenic needs of offenders.
The Bill does several useful things:
· It ends automatic release at two thirds of every sentence.
· It prescribes a minimum 17 year sentence for the worst murderers. The Government says that will be a "small number".
· It sets out in readily accessible form some of the current sentencing principles and aggravating and mitigating factors.
· Reparation is a must, so long as it does not cause "undue hardship to the offender or [his] dependents". Any hardship victims or their dependents will suffer is not relevant whether undue or otherwise. Reparation payments rank ahead of fines if the criminals can't afford both.
But in the other direction it does much more. It cements in as permanent policy our disastrous thirty year experiment focussing sentencing as the "criminogenic needs" of the criminals, and not the crime. Officials take from the Courts the power to determine what sentences are served, where and for how long. Politicians and officials can block any Judge who might be tempted to respond to community concerns with tougher penalties. In particular:
· The permitted purposes of sentencing do not include punishment. The Bill does not make it legitimate to ensure a price is paid for preying on law abiding people.
· The sentencing principles do not reflect two of the stated purposes, "accountability" and "denunciation".
· Judges must apply the least restrictive penalty they can justify for any crime.
· Any sentence of less than two years is automatically cut in half.
· Despite Ministerial spin nothing in the Bill requires that preventative detention be used more. Judges will have more crimes they can apply it to, and they may choose to use it more, simply because that is the only way they can now set a non-parole period, except for murder.
· The minimum term to be served for preventative detention has been reduced to 5 years from the current 10 years.
· Parole has become a right not a privilege. Prisoners must be released if the Parole Board thinks they are not a dangerous (described as "undue risk to the safety of the community"). This means the Parole Board has to ignore the Judge's intent. They can't respect the community's expectation that a prisoner will stay in prison for long enough to denounce the crime, to deter others from thinking that crime can pay, and to satisfy victims that justice has been done.
· Pious references to victims' rights in the sentencing purposes, and principles may mean nothing, given that victims' only "rights" are to be consulted and to have their submissions "due weight".
· Home detention is available to anyone with a short term (less than 2 year sentence) unless the Judge specifically says no.
· Home detention is available to serious violent offenders. They can apply 5 months before they become eligible for parole. That means a rapist given 9 years could be on home detention restrained only by a bracelet 2 years and 9 months after being arrested.
· The Bill lowers the non-parole period for serious violent offences from two thirds of a sentence to one third.
· The Bill will apply retrospectively to benefit criminals presently awaiting trial, if they are tried after 1 July with eligibility for parole at one third of the sentences.
· The Bill is not retrospective to allow rapist murders like Taffy Hotene and Dartelle Alder to be kept for longer than their two thirds of a sentence even if the Parole Board thinks they are a serious danger to the community.
· The Bill abolishes the Judges' current power to set minimum non parole periods other than murder (and by way of preventive detention).
· Judges must use fines when there is a choice of sentence unless is would be "clearly inadequate" or the offender cannot afford to pay.
· The 2 year home invasion surcharge on violent crime passed in 1998 is abolished, leaving it to Judges to decide whether home invasion is an aggravating factor. Courts showed what they thought of the home invasion law by complaining about it in sentencing.
· Criminals will be able to appeal if any sentence other than a fine is given, and a fine could have served the same purposes.
· Safety of the "community" is the overriding test for imprisonment deterrence of others, and punishment have become illegitimate considerations.
· The minimum age for imprisonment is raised from 16 to 17 except for serious offences. The message to young thugs starting their criminals careers with entry level crime is that they are immune from real punishment. No wonder children graduated to murder Beverley Bouma and Michael Choy.
· Judges' ability to choose among sentences is severely limited.
· Judges can't stipulate what kind of prison the offender should go to or make community work to fit the crime. Only Corrections' officials can decide where, how and when community work is done.
· Community sentences are not for punishment. They can only be applied for rehabilitation or reintegration or to make sure that a sentence is completed.
· While offenders may demand that the Court hears their family or whänau representative on sentencing there is no parallel right for victims. Victims can't comment on or recommend a sentence. They are confined to complaining about their loss.
· Courts must give reasons "in open court" for sentencing decisions but officials and Parole Board functionaries do not have to give reasons for release decisions (effectively reversing the Court's decisions). They do not even have to announce releases.
· Restorative justice now have lots of mentions but:
* There is no power for Courts to put their stamp on or otherwise enforce agreements reached in restorative justice conferences;
* There is no power for the Probation Service to supervise the performance of such agreements;
* The Bill prohibits any reparation order which "obliges the offender to perform any form of work or service for the victim".
· Conditions of supervision, including post release supervision, do not enable Courts or Probation Service to address the causes of offending. For example offenders can't be ordered to abstain from drugs or alcohol or gambling. They can't even be ordered to meet obligations to their friends or family or to apply earnings and payment of fines or reparations.
· There is no power to order routine or random drug testing.
· The Courts can't impose post release conditions if they sentence to more than 2 years. This ensures only Corrections functionaries can decide on post release conditions for long term sentences.
· The Bill does not address the scandal of name suppression. It should have restored shame as a normal part of a healthy societies response to crime by confining suppression to cases where victims request it.
· The Bill does not allow the Courts to give long term non association orders. They can't last longer than 12 months.
· The Courts lose their power to order suspended sentences, over the strong protests of Judges and lawyers.
· Release conditions for parole cannot extend to require the offender to stay at work or to meet obligations to family or dependents or to victims, or to abstain from drugs or alcohol.
· The new Parole Board power to protect victims from having to worry about parole every year has been greatly exaggerated.
* Offenders on home detention must be considered for parole "at least once in every 3 months",
* Even serious violent offenders such as rapists must be considered every 2 years. Because they are now eligible at one third instead of two thirds, victims may have to go through more parole hearings than at present.
· The trust basis of parole is mocked. Even offenders who have breached parole by absconding must be considered for new parole within 12 months after recapture unless they have a new sentence.
· The one third minimum sentence requirement can be shortened by the Chair of the Parole Board or the Minister of Corrections designating a whole class of offenders for parole consideration even before the one third date.
· Current law requires the Parole Board to consider the likelihood of committing further offences. That is dropped to leave "undue risk to the safety of the community" as the only important criterion.
· Victims who want to influence parole applications get prescribed formal data. It excludes anything about previous offending (before sentence) and any Probation Officers comments or Prison Officers reports or recommendations. The Committee was told that Prison Officers don't make recommendations to the Parole Board. So much for the theory that parole is needed to ensure prison officers have something to hold over prisoners to ensure good behaviour.
· Offenders have a right to stay throughout a parole hearing, and to get the full reasoning for a decision. Victims can only present their submissions and do not get a copy of the decision. They will be told about conditions only to the extent the Parole Board thinks they are relevant to the victim.
· The Bill expressly says that even a criminal who spends time in prison for a new offence, must be released at the end of the new sentence even if the previous parole period has still to expire. Most prisoners commit fresh offences on parole but few are recalled to finish their sentences.
· A recalled prisoner's rights to consideration for parole revive a year after being recalled unless there is a new sentence.
The whole thrust of this Bill is against the community demand for effective punishment. It takes away existing Court powers.
Mr Goff has urged us to rely on the professionalism of the Parole Board and his confidence in its new ability to decide when a released convict will be a risk to the safety of the community. Nothing in the Bill tells us why such special skills have not been available or used to date, where they will come from, and why they should override the sentences handed down by the Courts.
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