Sentencing and Parole: What the Media Wouldn't Tell You
Friday 3 May 2002
Stephen Franks
Speech Notes for Public Meeting on Crime and Justice, ASB Netball Centre, Northcote, Auckland, 2 May 2002, 7.30pm
News media reporting of the passage of the Sentencing Act and the Parole Act has been deplorable. Reciting government
spin, and simple non-coverage has insulted the ordinary New Zealanders who think crime policy is important. The feeble
coverage means New Zealanders may be stuck for longer in a swamp of criminality. There is low awareness of the
alternatives.
It wasn't as if the law changes have been of no interest to people outside Parliament.
Over 9 out 10 New Zealand voters last election said they wanted a major change in treatment of criminals and victims.
Labour's Phil Goff promised to do it. Current opinion polls tell news media and politicians that law and order will be
one of the top three election issues, as it should be.
We are already more likely to be victims of violent crime than in the US, yet we have more people locked up for longer
than every other country with which we would want to compare ourselves.
Yet the entire criminal justice policy has had less media explanation than the attention paid to say one juicy court
case.
Public outrage about law and order policy is entirely fair. Labour's promises were deceitful when they were made. They
have not been kept. Violent offending has gone up nearly 15% during Labour's two and a half calculating years of doing
nothing whatsoever on crime. The suffering over 2 wasted years of an extra 4,000 victims of assault, robbery, rape and
other forms of viciousness is a direct and predictable result.
In Britain, rocketing crime is among Mr Blair's most serious political problem. Yet here in New Zealand the patronising
elite seem to have decided that only oiks are interested in crime and justice policy. So they don't bother to report the
debate.
In the US plummeting crime figures are among the most publicly celebrated achievements of Bill Clinton.
They offer clear proof that Truth in Sentencing and Zero Tolerance policies can work. Ever-rising bullying, vandalism,
theft, robbery and rape is not just a price victims must pay because we live in a modern, mixed race, liberal society.
US experience tells us our victims are suffering an avoidable cost.
Instead our new law cements in a loopy criminal policy experiment based on 60's beliefs, not research. Our system is
feeding the self-esteem of bullies and thugs. Our self-anointed betters believe that if we just give to criminals what
they want more often, for long enough, some day they might be nicer back to the rest of us.
These theories have been exploded all around the world. There never was rigorous research to support them. Debate about
the astounding US success in making people dramatically safer, in restoring trust among neighbours in ordinary US towns
and suburbs is one of the major issues among criminologists and politicians overseas.
Yet yesterday when Labour's deceitful laws passed their last stage NZ television virtually ignored it. The Herald
confined itself to a few mild inches mostly reflecting government handouts. The Dominion headline item was worse,
parroted government spin, and in parts it was simply wrong. The Press followed suit.
So I will now let you know what the news media decided you did not need to know about the Sentencing Act 2002 and the
Parole Act 2002. I can also tell you what ACT will change.
The Sentencing Act does several useful things. ACT was determined to be practical and positive. So we concentrated on
what we could do to reduce the damage of all the other provisions. We provided over 160 amendment provisions for
Parliament. None were frivolous. Nearly all recognised that the government controls Parliament. Being realists we tried
to improve the law where we could without requiring a reversal of government policy.
Sentencing Act: Advances
The Act ends automatic release at two thirds of every sentence.
Of course ACT supported this. Labour brought in the sentence haircut more than a decade ago. It made sentencing part of
a deliberate deception of the public.
The Act tells judges to use maximum sentences for the worst crimes.
Yeah right! The fine print goes on to say that is only so long as they don't think that the maximum would be
"inappropriate".
We know already that judges think maximum sentences are almost always inappropriate. We know because the whole industry
of legal aid appeals rests on appeal judges cutting sentences back to the piffling levels they have decided are
`appropriate'.
The Act sets out in readily accessible form some sensible principles aggravating and mitigating factors.
But only some. ACT's amendments tried to reinstate deterrence as a principle.
The Act tells judges to order reparation, so long as it does not cause "undue hardship to the offender or [his]
dependents".
ACT's amendments would have required the offender's alleged hardship to be compared with the hardship suffered by
victims or their dependents.
Sentencing Act: Retrograde Changes
The Act moves much further in the opposite direction to what the Norm Withers' referendum urged. The Act makes
sentencing suit the "criminogenic needs" of the criminals, and not the crime. It is based on the theory that criminals
deserve treatment, not punishment. In particular:
The Act omits `punishment' as a purpose of sentencing.
ACT's amendment would have put `punishment' up there as a legitimate purpose.
The sentencing principles do not reflect two of the stated purposes, "accountability" and "denunciation".
The principle that victims are entitled to justice, whether or not it is part of `reintegration' and `rehabilitation'
of offenders underpinned all ACT's amendments in this area. They were all rejected.
The Act sets up new grounds for appeal if police don't prove an aggravating factor for sentencing "beyond reasonable
doubt".
ACT's amendments responded to Law Society warnings that sentencing hearings would be a new and costly industry. Neither
the warning or our practical and positive amendments were even debated by Labour.
Increase sentences for murder
Any government claim of increased penalties for murder is false. The Act essentially confirms recent existing practice
of the courts to impose 17-year non-parole periods for the worst murders. The Act abolishes the current minimum of
so-called `life imprisonment' for murder. The average murder sentence could well reduce. There is no minimum. ACT sought
to reinstate a minimum, and to change the deceitful term `life imprisonment' to reflect the fact that it is never life
imprisonment.
Any sentence of less than two years is automatically cut in half.
This provision makes judges into liars. Truth in sentencing is simple. Our amendments would have deleted this
provision. The government could have achieved almost the same objective, without deception in court, by a provision
along the lines - "no sentence shall be for a period of between 1 and 2 years".
New hate crime provisions give some favoured groups, defined by sexual preference, or race or similar criteria, greater
value as victims than other New Zealanders.
ACT's principled amendments have correctly identified hate crimes as a form of terrorism, and would have allowed judges
to give deterrent sentences for all forms of terrorism, without discriminating among the victim groups.
The minimum term for preventive detention is reduced from 10 years to 5 years.
ACT's clause would have simply maintained the current 10-year minimum term.
Nothing in the Act requires that preventive detention be used more. The judges may, but don't have to.
ACT hopes judges don't use it much more. They should instead be giving dangerous criminals much longer fixed penalties,
and setting supervision conditions on release that allow immediate re-imprisonment when incorrigible criminals breach
the terms.
Criminals will be able to appeal if any sentence other than a fine is given, and a fine could have served the same
purposes.
ACT's amendments would restore the power of our courts to decide on punishments to fit the crime. They tried to uphold
the basic constitutional principle that judges independent of the government should dispense justice.
The minimum age for imprisonment is raised from 16 to 17 except for serious offences.
ACT wants crime to be treated as crime irrespective of who commits it. Youth is not an excuse. For young people the
type of custody, the form of community work might be different, but not the seriousness of the offence. The most
important messages of our justice system must go to entry-level criminals. It must say - crime is serious - the law will
mean what it says.
Judges can't stipulate what kind of prison the offender should go to.
The exclusive power to determine the nature of punishment should be taken from Corrections and Court powers restored.
Judges can't enforce an agreement under a restorative justice process, or specify community work to fit the crime.
ACT's amendments would have restored judicial control over these forms of punishment, for example allowing the court to
order that a fraudster accountant provide free accounting for a charitable organisation. ACT would have given
Corrections a duty to monitor and ensure compliance with restorative justice settlements.
Offenders may demand that the Court hears their family or whänau representative on sentencing but victims can't comment
on or recommend a sentence.
ACT would have given victims a standing at least equal to that of the criminal.
Parole Act: All Defence of Failed Theory
The Parole Act makes parole a right not a privilege. Our amendments accepted that the government was going to preserve
this useless and damaging method of giving our permanent criminals home leave. We tried therefore to stick to practical
and positive improvements, many drawn from my Parole Reform Bill voted down by the government in 2000.
Prisoners must be released if the Parole Board thinks they are not an "undue risk to the safety of the community".
ACT's amendments simply enabled and required the Board to take into account as well, other purposes and principles of
the court's sentence, including the need to see that a price was paid.
The Act lowers the non-parole period for serious violent offences from two thirds of a sentence to one third.
ACT will abolish parole. Government commissions in Australia and Canada have found no evidence that it achieves its
stated purposes. The majority of US States have adopted Truth in Sentencing and the US Federal government has abolished
parole.
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.
ACT would have restored all these powers to the courts.
Victims will have parole hearings to endure every year after one third of the sentence unless the Board postpones a
hearing.
ACT would have allowed the Board to postpone the next parole hearing to any date within the sentence.
Even with postponement serious violent offenders such as rapists must be considered for parole every 2 years.
ACT's amendments would have enabled the Parole Board to protect a raped woman from the revived pain and fear of these
parole hearings. For example under the new Parole Act if the rapist gets a 12 year sentence she will face parole
hearings at years 4, 6, 8 and 10 even if the Parole Board exercises its postponement power.
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.
ACT says - forget parole if you can't be trusted, or you reoffend on parole.
Both new Acts are encrusted with myriad other provisions to generated new processes and rights of appeal and review. It
takes away existing Court powers. The Law Society warned the committee that lawyers would be bound to make a feast of
it.
Procedures Not Reported
National's Wayne Mapp - your Northcote member also put up many sensible amendments. A number overlapped with ACT's. ACT
and National worked together in a genuine attempt to make these laws something more than a cynical repackaging of
existing failed theory. New Zealand First and Peter Dunne also voted in support of ACT's amendments. The Greens and the
Alliance scarcely participated in the debate. They mechanically voted as instructed by Mr Goff - usually without even
bothering to look at the amendment they were voting on.
Looking Forward
There is one silver lining to the rejection of nearly all the practical positive work ACT has put into these law
changes.
Our amendments are ready for when New Zealanders wake up sorry from Helen Clark's spell. On that morning after, it will
not take us 2 ½ years to produce the law changes to restore justice for the victims of crime. Those law changes are
ready now.
Ends