SENTENCING AND PAROLE REFORM BILL DEPARTMENTAL REPORT

Transcription

1 SENTENCING AND PAROLE REFORM BILL DEPARTMENTAL REPORT 12 March 2010

2 Contents Section A Summary of submissions 3 Section B (1) Section B (2) Section C Section D Section E Policy issues - Bill as Introduced Policy issues - Changes to clauses 3 to 7 and new clause 13 Clause by clause analysis Other concerns Summary of recommended changes Appendix 1 Statistical information 78 Appendix 2 Glossary of abbreviations 81 Appendix 3 Jurisdiction for Prosecution of Serious offences 82 Appendix 4 References 83 Appendix 5 Submitters 84 2

3 Section A: Summary of Submissions 1. This section contains a high level summary of submissions on the Bill as introduced. 2. 1,075 submissions were received on the Bill as introduced and on which submissions were sought up to 24 April Where a submission was received from an organisation or was signed by more than one person, it was recorded as one submission. 3. 1,009 (94%) submitters supported the Bill. 32 (3%) did not support the Bill, and 34 (3%) did not express a view on whether they supported the Bill. The majority of submissions that did not express a view on support for the Bill expressed concern about crime and/or the operation of the criminal justice system of the 1,009 submitters that supported the Bill recommended changes to significant aspects of the three stage regime, primarily: the qualifying offences; the qualifying sentence (5 years or more); the age of eligibility (18); retrospective application of the first and second stages; and the number of stages (or strikes ). 5. A majority (541) of submissions that supported the Bill were form letters or adapted form letters. Submitters that supported the Bill did so for a range of reasons, but primarily because they: were concerned about (rising) violent crime and public safety; considered that the sentences currently imposed by the courts are too lenient and do not hold offenders sufficiently accountable, deter offenders, or protect the public; considered that parole was granted too easily to dangerous and recidivist offenders; wanted to improve the rights of victims and to redress the perceived disparity between the rights of offenders and those of victims in the criminal justice system; wanted victims to be spared the stress of repeated parole hearings; considered that the three stage regime and natural life sentences would reduce crime (and consequently the number of victims) through incapacitation and/or deterrence; and were concerned that violent crime is affecting New Zealand s international reputation as a tourist destination. 6. Most submissions that did not support the Bill were primarily opposed because they considered that the Bill, or aspects of it: potentially breached New Zealand s domestic and international human rights obligations; undermined the principles and purposes of sentencing, and would result in injustice and disproportionate sentences in individual cases; 3

4 would not substantially decrease crime and improve public safety; would not adequately target offenders that posed a risk to the public and would not be cost-effective; would disproportionately impact on Māori and marginalised populations; would not improve the confidence of victims and the public in the criminal justice system; would have other adverse effects, including that: offenders facing a stage three life sentence might resort to violence and murder to avoid identification and capture; and offenders would be less likely to plead guilty and more likely to appeal their conviction and/or sentence. 7. Most submitters that opposed the Bill considered that the Government should focus on addressing the causes of offending and/or re-offending instead of enacting the Bill or similar policies. A number of submitters that supported the Bill also considered that the Government should address the causes of offending and/or re-offending in addition to the measures in the Bill. 8. Cabinet approved changes to the Bill on 17 December Submitters who had made previous submissions on the aspects of the Bill affected by those changes, were invited to make further submissions. Letters were sent out to 130 submitters on 17 February 2010, and 37 submissions were received. Discussion of these submissions is included later in the report. 4

5 Section B (1): Policy Issues - Bill as Introduced 9. This section outlines submissions received on the general policy of the original Bill as introduced in February 2009 (as opposed to the provisions of the Bill itself). Submissions on the changes to the policy in the Bill, approved by Cabinet on 17 December 2009, are included later in the next section. Effectiveness: Deterrence and Incapacitation Submissions Introduction 10. The following analysis summarises submitters comments on the Bill s potential to reduce crime and improve public safety through deterrence and incapacitation respectively. It then outlines submitters views on the effectiveness of the three strikes laws in the United States of America (USA), including arguments that it may increase homicides. Deterrence 11. As a result of her research on USA three strikes laws (outlined on page 7), Associate Professor Jennifer Walsh 1 stated that strengthening sentences and requiring stricter standards for parole eligibility could help to promote public safety through deterrence. However, she warned that if judges routinely ignored the law or manipulated sentences to avoid imposing mandatory penalties, the crime control benefits of such regimes would be eradicated. 12. Submitters that opposed the Bill considered that it would not have a deterrent effect as: most offenders do not rationally weigh up the consequences of their actions or make conscious decisions about offending; the deterrence effect was unlikely to override factors such as substance abuse and addiction problems, mental difficulties, broken families, school failure, high levels of illiteracy and unemployment; punishment and/or prison were ineffective at deterring offending, and long sentences may actually increase offending. It was noted that nearly three quarters of released inmates were reconvicted within two years of their release and 86% were reconvicted within five years 2 ; New Zealand s rate of imprisonment had grown substantially in the last decade, but the crime rate has remained relatively stable. 13. Additional comments around deterrence were that: it was difficult to assess through research the efficacy of deterrence and tougher punishment in reducing rates of offending; 1 Associate Professor Walsh is an associate professor of political science at Azusa Pacific University in California. 2 Spier, P., and Lash, B Conviction and Sentencing of Offenders in New Zealand 1994 to Ministry of Justice. 5

6 the best deterrent was the belief of being caught; an offender facing a stage three life sentence might resort to violence or murder against victims and/or police to avoid identification and capture. A number of the submitters referred to the USA experience as the basis for this concern (discussed further below). Incapacitation 14. Submissions for and against the Bill differed on whether it was appropriate to apply a blanket policy to incapacitate all habitual offenders with a certain background, to ensure that the ones that would re-offend were prevented from doing so. 15. Many submitters who supported the Bill commented that: an offender who is in jail cannot offend against the community ; identifying and incapacitating the habitual offenders that commit the majority of crime would substantially reduce crime; while researchers had confirmed that the rate of criminal activity of the most chronic offenders slowly declined over time, recent studies had shown that, unless incapacitated, habitual offenders would continue to commit crimes for an average of years and violent offenders have longer career spans than offenders specialising in drug or property offences Five submitters considered that the Bill was a blunt instrument that did not adequately identify offenders that were likely to be a continuing risk. The Legislative Advisory Committee (LAC) submitted that while an offender's criminal history was a key indicator of general risk, there was little evidence that: a particular type of criminal history enhanced the risk of an offender committing an offence of that type in the future; offenders specialised in particular types of offending, especially serious violence; an offender who had previously received a sentence of five years imprisonment or more for a serious violent offence was at greater risk of committing a further serious violent offence than an offender who had received a sentence of less than five years. LAC pointed out that the difference between the sentences may simply be that one pleaded guilty at an early stage while the other did not. 17. Six submitters noted that the Bill would result in some elderly offenders being kept in prison. This was not considered to be an efficient use of resources as the elderly required more expensive care but posed little or no risk to the public. 18. Five submitters considered that the existing sentence of preventive detention was a better alternative than the measures in the Bill as it required an assessment of the offender s ongoing risk. It was noted that the 3 In support of these points, Associate Professor Wash cited Ezell, Michael Examining the Overall and Offense-Specific Criminal Career Lengths of a Sample of Serious Offenders. Crime and Delinquency 53 (1):

7 Sentencing Act 2002 significantly broadened the ability of judges to impose preventive detention, and that the use of preventive detention had increased under the Sentencing Act. USA three strikes laws General 19. Associate Professor Walsh made a detailed submission in support of the Bill with reference to a number of studies on USA three strikes laws. The submission was also supported by other submitters with the following key points being that: the combined effect of deterrence and incapacitation had not only reduced crime, but had worked to keep the growth of the prison population in California low; the initial estimates of a huge increase in the prison population had not eventuated and experts believed the small increase in the prison population since the early 1990s was likely to be the result of an increase in the State s population; the crime rate in California in the 15 years before, and the 15 years after, the three strikes law came into force, demonstrated that the three strikes law was a major contributor to the significant drop in crime in California ( 4 ). 20. However, a number of submitters attributed the drop in crime to a range of factors, such as a change in demographics, increased Police presence, increased crime prevention and tougher gun laws, rather than the three strikes law. They noted that crime rates were already dropping in the USA, and in other western countries, prior to the introduction of the three strikes law and that states without the three strikes laws had similar or greater reductions in crime, particularly violent crime, as those with the three strikes law. USA three strikes laws potential to increase homicides 21. Views on the link between the three strikes laws and the homicide rate vary. Those who say that there is no link referred to statistics that showed that murders in California were 21% lower in the 14 years after the three strikes law came into force than in the preceding 14 years. 22. Five submitters that opposed the Bill referred to research showing that three strikes laws had increased the rate of homicides in the USA: a study by Marvell and Moody 5 that found a 10-12% short-term increase in homicides in states with three strikes laws, increasing to 23-29% in the long term. They stated that they could find no other reason for the increase; later studies by Kovandzic et al 6 that found a similar effect in states with three strikes laws. 4 This website is run by Mike Reynolds, a photographer who became one of the original proponents of California s three strike law after his daughter was killed by a recidivist offender. 5 Marvell, Thomas B., and Moody, Carlisle E The lethal Effects of Three-Strikes Laws. The Journal of Legal Studies. Vol. 30, No.1: Kovandzic, T.V., Sloan, J.J., and Vieraitis, L.M Unintended consequences of politically popular sentencing policy: The homicide promoting effects of Three Strikes in U.S. cities (1980-7

8 Comment 23. There have been many studies on the deterrent and incapacitation effects of the three strikes regimes in the USA, particularly in California. These studies have resulted in a range of findings due to different philosophical starting points and disciplines, variation in what the studies were attempting to measure and varying methodologies and data sources. One particular point of academic divergence is the extent to which offenders weigh up the benefits and risks of offending. 24. From an analysis of a number of leading studies on USA three strikes laws (see Appendix four for a list of references), officials view is that the evidence is inconclusive but that USA three strikes laws: may have had an effect in reducing overall crime rates, through deterrence rather than incapacitation given the small number of offenders imprisoned under most states laws. However, there is also evidence that the deterrent effect is no stronger in states with wider ranging laws, such as California, than in states with less severe laws; may have had a deterrent effect on individual offenders at risk of moving through the stages; and may have resulted in an increased rate of homicide. On the basis of the research to date, this cannot be ruled out. In addition to the Marvell and Moody and Kovandzic et al studies, another recent and comprehensive study by Elsa Chen found a similar effect. 25. With regard to concerns that the Bill may be applied to offenders who may not re-offend and will result in an increase in elderly, low-risk prisoners, these concerns were considered during the development of the policy and were drawn to Cabinet s attention. As outlined in the Regulatory Impact Statement (RIS), the measures in the Bill were the preferred option for improving public safety and increasing the confidence of victims and the public in the criminal justice system (CJS). The status quo and the option of increasing the use of preventive detention were considered to be inferior to the measures in the Bill in respect of one or both of those aims. Confidence of victims and the public in the criminal justice system Submissions 26. Those submitters who supported the Bill and referred, either directly or indirectly, to whether the Bill would increase public confidence in the CJS or not, noted the following points: experience from three strikes states in the United States showed that the Bill would increase public confidence; 1999). Criminology and Public Policy. (1)(3): ; and Kovandzic, T.V., Sloan, J.J., and Vieraitis, L.M Striking Out as crime reduction policy: The impact Three Strikes laws on Crime rates in U.S. cities. Justice Quarterly. 21(2):

9 that the Bill would have an overall positive impact, although 244 submitters recommended changes to significant aspects of the three stage regime that would increase its scope; judges could manipulate sentences, especially at stage three, to avoid imposing a qualifying sentence and this would compromise the public confidence in the CJS. 27. There were a number of ambiguous responses such as there should be true life sentences for murder that could either mean they supported the measures in the Bill or thought it should go further (the Bill as introduced only provides for life without parole for murder in some circumstances). 28. Eight submitters that opposed the Bill considered that it would not increase public confidence in the CJS for the following reasons: public confidence is a complex matter based on various contributing factors, and a narrow focus on greater imprisonment ignores other factors such as the fairness and perceived fairness of the system; mandatory sentencing regimes were likely to result in disproportionate outcomes and injustice that would undermine public confidence; while the Bill would give some victims and their families a greater degree of certainty around the release of an offender, this might be offset by increases in the number of appeals against sentences and convictions that would prolong court processes; an easier way to improve confidence in the system would be a public education campaign to balance and provide context for the media's over-reporting of serious violent crime; misconceptions about what the Bill does and how it works, and the length of time before offenders will be sentenced to stage three life sentences, may in fact undermine public confidence in the system when the expected results do not eventuate; the Bill was being presented as a panacea to violent crime and, as such, may be deeply disappointing to the public; Comment it was dangerous to rely on public support for the Bill because research indicated that the public tended to overestimate the prevalence of crime, and whether and by how much it was increasing. 29. Officials note that better public information on the criminal justice sysyem is a matter that the Government is working on generally. Māori and marginalised populations Submissions 30. Eight submitters commented that the Bill would be likely to impact disproportionately on Māori offenders because: Māori are disproportionately represented in the CJS and the Bill would disproportionately affect Māori offenders. This may affect the confidence of Māori and the general public in the CJS; the Bill would deprive a disproportionate number of Māori offenders of the possibility of rehabilitation; 9

10 there is international evidence that three strikes laws had a disproportionate effect on ethnic minorities. In California, African American men constituted 3% of the State's population, but represented 33% of second strikers and 44% of third strikers. 31. One submitter cited three USA studies that found that enhanced sentencing laws, such as three strikes, did not exacerbate the existing overrepresentation of offenders from ethnic minorities. 32. Several submitters approached the issue of disproportionality from a different angle and submitted that the Bill would reduce crime in ethnic and marginalised communities as these communities experienced more crime. They referred to federal statistics on victimisation from the USA Department of Justice showing that, between 1996 and 2006: crime against black men decreased by 44% and crime committed against black women decreased by 32%; robbery victimisations halved for black women and reduced by three quarters for black men; and sexual assaults against women of colour decreased by 36%, compared with a 22% reduction for white women. Comment 33. The Government is working to examine and address the drivers of crime, which will include analysis of the social and economic factors that contribute to criminal behaviour and methods to address the over-representation of certain groups, such as Māori, in the CJS. 34. As stated previously, it is possible that the Bill will result in a small reduction in crime through deterrence and possibly incapacitation. As Māori and Pacific peoples are victimised at a higher rate than the general population 7, it is possible that Māori and Pacific peoples will benefit to a greater extent than other populations from any decrease in crime and improvement to public safety resulting from the Bill. Police/prosecutorial discretion in charging Submissions 35. Five submitters were concerned that Police and prosecutorial decisions on charging would decide whether or not a person potentially qualified under the three stages regime. In its oral submission, NZLS expressed concern that the Bill moved discretion away from the judiciary, or even the government, to Police in charging. 36. One submitter stated that there was evidence in the USA of Police ratcheting up charges in high-crime areas so that recidivist offenders were convicted of a strike offence that accelerated their passage to long terms of 7 New Zealand Crime and Safety Survey

11 Comment imprisonment. The threat of a three strikes conviction could also be used as leverage for a guilty plea to a lesser charge. 37. Police and prosecutorial discretion in charging have long been a feature of New Zealand s and many other countries criminal justice systems. The Solicitor General's Guidelines for Prosecution govern prosecutorial decisions, and the principal factors considered in deciding which charges to pursue are evidential sufficiency and the public interest. 38. In order to provide additional assurance that appropriate charges are laid by the Police, on 1 March 2010 Cabinet agreed that the Commissioner of Police direct that all prosecutions involving charges that qualify for stage three of the regime be referred to the Crown Solicitor for peer review either pre-charge or by the second appearance (DOM Min (10) 1/1 of 24 February 2010 confirmed by CAB Min (10) 7/6). Unintended consequences Domestic Violence Submissions 39. Seven submitters were concerned that the victims of domestic violence might be less likely to report abuse if they thought that it would result in a lengthy prison term for the abuser. This could be a particular problem for Maori women who were at greater risk of becoming victims, but faced significant barriers in reporting this abuse because of the fear that they would have nowhere else to turn for help if their family did not support them. Comment 40. The It s not OK campaign, changes in the way Police deal with family violence, and other work in this area have had a positive impact on the reporting of family violence. However, for a range of reasons, some victims of family violence do not report abuse. 41. Officials do not consider that the Bill will exacerbate under-reporting of family violence. The Bill is targeted at the most serious instances of repeat violent and sexual offending. The majority of family violence is at a lower, albeit still serious, level. Prison discipline and conditions Submissions 42. Seven submitters were concerned that removing parole for the duration of determinate sentences, or for life sentences, would result in violent and disruptive prisoners with no incentive to behave. This would endanger prison staff, visitors and other prisoners, and could increase security costs. 11

12 43. The Human Rights Commission noted that prisoners serving long-term prison sentences experience high levels of mental illness. They expressed concern that the standards provided in the International Covenant on Economic, Social and Cultural Rights and the United Nations Standard Minimum Rules for the Treatment of Prisoners may not be met if there was an increase in the number of prisoners serving long-term sentences, some without parole. Comment 44. The Department of Corrections (Corrections) advises that there is some substance to the concerns raised by submitters. However, it considers that the overall impact of the measures on the behaviour and management of prisoners is likely to be modest, noting the following points: The Bill is predicted to affect only a small proportion of the prison population; The prison system already has to manage a large number of prisoners whose release date is not dependent on their behaviour while in prison, or for whom the availability of parole may not be a powerful incentive for good behaviour. 45. Corrections currently has appropriate measures in place to identify and minimise mental health risks. This is evidenced by the fact that the suicide rate in New Zealand prisons is declining and is relatively low compared with similar jurisdictions. 46. Where prisoners require specialist psychiatric treatment, this is provided by regional forensic services. In the most serious cases, prisoners may be transferred to a hospital under the provisions of the Mental Health (Compulsory Assessment and Treatment) Act Guilty pleas and appeals Submissions 47. Some submitters stated that the Bill: would result in greatly increased litigation costs as lawyers would have no choice but to fight every qualifying charge; provided no incentive for offenders facing a stage three life sentence to plead guilty; would result in an increased number of appeals. Comment 48. The measures in the Bill at stage three are likely to result in fewer guilty pleas and more appeals. The incentive to plead guilty is likely to remain for stages one and two where there is more judicial discretion. 49. If an offender is facing a sentence of life imprisonment without parole for murder at stage two or three, or a stage three sentence, an early guilty plea 12

13 will have some relevance in determining whether a no parole order is manifestly unjust. 50. Studies in the USA have found that the rate of guilty pleas decreased after three strikes laws came into force because there was no incentive to plead guilty and defendants hoped that the jury would find them not guilty when it discovered what the penalty would be. 8 There have been a number of appeals to test the legality of the three strike laws in the USA, and the same can be expected initially in New Zealand. Alternatives to the Bill Submissions 51. Several submitters that opposed the Bill offered suggestions of alternatives to the Bill focused primarily on the increased use of preventive detention. 52. One submitter suggested amending section 9 of the Sentencing Act (which relates to aggravating and mitigating factors in sentencing) to include, as a specific aggravating factor, any previous serious violent offending. Comment 53. Expanding the use of preventive detention was considered in the development of the Bill, but was rejected for the reasons outlined in the RIS. 54. Creating a specific aggravating factor in respect of previous serious violent offending would also have little effect, given that section 9(1)(j) already allows the court to take this into account. 8 Harris, John C., and Jesilow, Paul It s not the old ball game: Three strikes and the courtroom workgroup. Justice Quarterly. Vol. 17, No.1:

14 Section B (2): Policy Issues - Changes to clauses 3 to 7 and new clause 13 Introduction Changes to the Bill 55. On 17 December 2009 Cabinet agreed to the following changes to the Bill: The threshold for each of the stages of the three stages regime for the worst repeat violent offenders to be on conviction of a qualifying offence rather than a determinate sentence of imprisonment of five years or more or an indeterminate sentence of imprisonment; The sentence for a conviction of a qualifying offence at stage three to be the maximum sentence for that offence, and, unless this would be manifestly unjust, the court must order that the offender serve the sentence without parole. This is to replace the sentence in the Bill as introduced of life imprisonment at stage three. The change does not include sentencing for murder as this remains covered by the specific provision in the current Bill relating to such sentencing (new section 86E in clause 5); Acid throwing and incest to be removed from the list of qualifying offences (set out in new section 86A in the definition of serious violent offence); The Bill to include an amendment to section 86 of the Parole Act 2002 (which sets a release date for short-term sentences (two years or less) at half of the sentence) so that an offender receiving a short-term sentence at stage two is not released at half sentence and serves the sentence in full. 56. The rest of the policy in the Bill as introduced (such as sentencing of offenders who, after receiving a warning or final warning, commit murder and are sentenced to life imprisonment) was to be retained. The Minister of Police wrote to the Committee to inform them of this decision and the Committee agreed to consider these proposed amendments alongside the main Bill. 57. On 17 February, letters (130) inviting further written submissions were sent by the Committee to those who had previously submitted on the aspects of the Bill affected by the proposed changes agreed by Cabinet. A copy of a draft Bill with proposed amendments (provided by Parliamentary Counsel Office) was sent out with the letter. The amendments also included new provisions concerning preventive detention and the imposing of concurrent sentences at stage three of the three stages regime. Submissions 58. Thirty-seven submissions were received. Nine were fully supportive of the changes, seven were generally supportive, but suggested some further changes. Eighteen submitters did not support the changes, with a further 14

15 three submitters unclear about their overall support, but suggesting additional changes to the Bill. 59. Three submitters noted that the Bill still fails to comply with New Zealand's human rights obligations, particularly in relation to disproportionate sentences. One submitter suggested that instead of three stages there should be a formula in place to allow for more immediate impact, rather than allowing leeway to commit at least two serious violent offences before the opportunity for further offending is removed. 60. One submitter who did not support the Bill noted that if it was to go ahead it should be reviewed after five years and one asked that current laws be retained and the Bill abandoned. 61. One submitter who opposes the Bill reiterated his previous submission, and stated that there was no justification for the Bill, that it would raise public expectations about punishment that would not be met, and that it would increase the cost of prison beds. 62. The Human Rights Commission reiterated and expanded its previous submission and expressed deep concern over the way in which the Bill has been handled. They particularly noted that the Bill reduces the rights of the offender without enhancing the rights of the victims or wider society. The HRC considers that the changes exacerbate NZBORA concerns and issues such as the impact on Maori and inconsistency with other Government policy. Issues 63. The submissions have been summarised by topic, firstly those that relate specifically to the changes in the Bill, and then miscellaneous topics. Where submitters have largely reiterated a previous submission, this is noted rather than repeating the submission. Changing the threshold for each of the three stages to conviction of a qualifying offence 64. Ten submitters specifically supported the proposed change to the threshold for each stage of the three stage sentencing regime to a conviction of a qualifying offence. 65. Five submitters considered that this was a backward step that would increase the levels of injustice, and the number of people caught in the three stages regime, and would increase the risk to the community by reducing the incentive for offenders to reform. One submitter thought that it would exacerbate the social problems which are the real cause of crime. Maximum sentence, rather than life imprisonment, for a qualifying offence at stage three, without parole, unless this would be manifestly unjust 66. Four submitters specifically supported the maximum term of imprisonment for the offence as the mandatory sentence at stage three. One submitter 15

16 who does not support the Bill noted that the maximum sentence for the offence was preferable to life imprisonment at stage three. 67. Six submitters thought that life sentences should remain for all qualifying offences at stage three. 68. Two submitters noted that a conviction for manslaughter at the third stage should be less severe than the life sentence without parole that applies to murder, and one suggested two levels of manslaughter to recognise the range of behaviours covered by this offence. 69. One submitter considered that recognition should be given for a guilty plea to reduce the stress for victims from a defended hearing, and suggested a 30% reduction in sentence. One thought maximum sentences for sexual offences and lower tariff violent offences should be increased, and one thought that all maximum sentences should be reviewed to reflect the actual damage to society. 70. Five submitters specifically disagreed with the removal of judicial discretion to impose any penalty within the maximum. Acid throwing and incest to be removed from the list of qualifying offences: 71. Five submitters were concerned that it was proposed that acid throwing be removed from the qualifying offences. One was concerned with the proposed removal of incest. 72. One submitter supported the exclusion of acid throwing and incest from the list of qualifying offences and one submitter noted that there was no explanation given regarding the reason for removing acid throwing and incest. Amend section 86 of the Parole Act 2002 so that an offender receiving a short term sentence at stage two would serve the sentence in full: 73. One submitter strongly agreed and two disagreed with the removal of early release for short-term sentences of imprisonment at stage two. Issues related to the Bill in general Sentencing at second stage 74. One submitter specifically supported the requirement to serve a second stage sentence of imprisonment in full. 75. One submitter thought that when a second stage offence has a maximum penalty of life imprisonment, this should be the mandatory sentence and there should be no parole (i.e. no manifestly unjust exception). One submitter noted that parole should be available after 20 years for murder and 14 years for manslaughter at the second stage, unless the offender was sentenced to more than five years imprisonment at the first stage. 16

17 76. One submitter proposed that life without parole should not be mandatory at the second stage. One submitter considered that a prison sentence should be mandatory at the second stage. Qualifying offences 77. Fifteen submitters wanted to expand the list of qualifying offences to include assault (or serious assault) on a police officer (2), manufacture and supply of methamphetamine (4), manufacture of any class A drug (3), manufacture or supply drug (unstipulated) (6), aggravated assault (1), assault with intent to injure (1), burglary (1), piracy (1), slavery (1), arson (1), cruelty to animals (1), drug baron (1), car theft (3), escape from prison (3), repeat drunk or disqualified driving or dangerous driving causing injury or death (2). 78. One submitter thought that the list of qualifying offences was too broad. One submitted that aggravated burglary, assault with intent to rob, and indecent assault should not necessarily be on the list and also queried the application of section 66 of the Crimes Act which would enable parties to a listed offence to qualify at each stage. 79. One submitter considered that the policy should focus on violence and those who murder and maim, and all sex offences should be removed from the list, as the current provisions are sufficient. Two suggested that the list of qualifying offences be reviewed periodically to ensure it is kept up to date with offending trends and any new identified offences such as violence against those in the line of duty. Parole / Parole Board (PB) 80. One submitter thought there should be mandatory post-release conditions. One considered a need to ensure that the PB was following the Act and giving priority to community safety. One thought that the PB should be able to impose both punishment and rehabilitation. One expressed concern over the lack of parole and recall for those serving a sentence in full, and considered this the "antithesis of good risk management". Concurrent Sentences 81. Four submitters were opposed to concurrent sentencing and considered that consecutive sentencing should apply when serious offences occur at the same time. One thought there should be the option of sentencing either concurrently or consecutively. 82. One submitter considered that no sentence at any stage should be able to be served concurrently with another strike sentence, but that a strike sentence could be served concurrently with a non-strike sentence. Qualifying Age 83. Five submitted that the qualifying age of 18 years should be removed, and one suggested that the three stage regime be replicated in the Youth Court and put before the Judge if the person reoffends as an adult. One proposed 17

18 reducing the qualifying age to 15 years. Two proposed reducing the qualifying age to 16 years. One stated that he could not support serious punishment when the criminal is very young and the victim (except for statutory presumptions) consented e.g. section 134 sexual connection with a young person Retrospectivety 84. Six submitters considered that the legislation should be made retrospective. One considered that strike one should be retrospective. One considered that the Bill should be retrospective back five to 10 years Manifestly Unjust provisions 85. Three submitters were concerned about the lack of legislative clarity around the manifestly unjust provision. One submitter proposed that the only grounds for implementing the manifestly unjust provision at stage three should be either that the victim's conduct or condition substantially mitigated the offender's conduct, the offender pleaded guilty, or the offender cooperated with the investigation or prosecution. One submitter considered that "manifestly unjust" should not apply to life for murder - life should mean life. 86. One submitter considered that the manifestly unjust exclusion should be expanded to apply to other aspects of the bill (issuing a warning, no parole at second stage, maximum sentence at third stage) 87. One submitter thought that the term "abhorrent to justice" was better than "manifestly unjust". Technical/drafting issues 88. One submitter suggested that the review and appeal procedures should be specified in the legislation and there should be a requirement to warn defendants prior to entering a plea, when they are facing a second or third stage sentence. 89. One submitter considered that an offender should not be able to avoid a strike due to a technical issue such as not being advised that they were on a final warning at stage two. One submitter proposed that only offending dealt with by indictment should be included in the regime. 18

19 Section C: Clause by Clause Analysis 90. This section outlines submissions on the individual clauses of the Bill. It will be noted where the submissions relate to the specific changes to the Bill that were approved by Cabinet on 17 December 2009 and 1 March These changes were forwarded to 130 previous submitters on 17 February 2010, inviting further submissions. Thirty-seven submissions were received. Clause 1 Title 91. Clause 1 is the title clause. Submissions 92. No submissions were received on clause 1. Recommendation No change is recommended to the Bill. Clause 2 Commencement 93. Clause 2 is the commencement clause. The Bill comes into force on the day after it receives the Royal assent. Submissions 94. No submissions were received on clause 2. Recommendation No change is recommended to the Bill. Clause 3 Purpose 95. Clause 3 of the Bill as introduced states that the purpose of the Bill is to: (a) deny parole to certain repeat offenders and to offenders guilty of the worst murders: (b) impose sentences of life imprisonment on persistent repeat offenders. Submissions 96. The New Zealand Council of Civil Liberties (NZCCL) considered that clause 3 was not sufficiently high level to be a purpose statement and instead expresses the intended effects of the Bill. NZCCL stated that section 3 of the Sentencing Act contains the high level purposes of that Act and therefore recommended deleting clause 3. 19

20 Comment 97. Clause 3 states the purposes of this Bill, rather than those of the Sentencing Act. However, the proposed changes to the Bill approved by Cabinet in December 2009 (see page 14) involve replacing sentences of life imprisonment for all third stage offenders with maximum terms of imprisonment. This needs to be reflected in the stated purpose of the Bill. Recommendation It is recommended that the Bill be amended so that clause 3(b) reads (b) impose maximum terms of imprisonment on persistent repeat offenders. PART 1 AMENDMENTS TO SENTENCING ACT 2002 Clause 4 Principal Act amended 98. Clause 4 states that Part 1 amends the Sentencing Act Submissions 99. No submissions were received on clause 4. Recommendation No change is recommended to the Bill. Clause 5 New sections 86A to 86H and heading inserted 100. Clause 5 is the main operative clause of the Bill. It inserts new sections 86A to 86H into the Sentencing Act These sections introduce a three stage sentencing regime for repeat violent and sexual offenders. 86A Interpretation 101. New section 86A is the interpretation section. In the Bill as introduced it defines qualifying sentence, record of first warning, record of final warning, and serious violent offence. These terms determine the class of offenders who become subject to the three stage regime Qualifying sentence is defined as a determinate sentence of imprisonment of five years or more, or an indeterminate sentence of imprisonment. 20

21 103. Record of first warning is defined as a warning issued to an offender under new section 86B(3). An offender gets a record of a first warning when he or she receives a qualifying sentence for a serious violent offence Record of final warning is defined as a warning issued to an offender under new section 86C(4) or 86E(7). An offender with a record of a first warning gets a record of a final warning when he or she receives a qualifying sentence for a further serious violent offence Serious violent offence is defined as an offence against any of the listed provisions in the Crimes Act 1961: (1) section 128B (sexual violation): (2) section 129 (attempted sexual violation and assault with intent to commit sexual violation): (3) section 129A(1) (sexual connection with consent induced by threat): (4) section 130 (incest): (5) section 131(1) (sexual connection with dependent family member under 18 years): (6) section 131(2) (attempted sexual connection with dependent family member under 18 years): (7) section 132(1) (sexual connection with child): (8) section 132(2) (attempted sexual connection with child): (9) section 132(3) (indecent act on child): (10) section 134(1) (sexual connection with young person): (11) section 134(2) (attempted sexual connection with young person): (12) section 134(3) (indecent act on young person): (13) section 135 (indecent assault): (14) section 138(1) (exploitative sexual connection with person with significant impairment): (15) section 138(2) (attempted exploitative sexual connection with person with significant impairment): (16) section 142A (compelling indecent act with animal): (17) section 172 (murder): (18) section 173 (attempted murder): (19) section 177 (manslaughter): (20) section 188(1) (wounding with intent to cause grievous bodily harm): (21) section 188(2) (wounding with intent to injure): (22) section 189(1) (injuring with intent to cause grievous bodily harm): (23) section 191(1) (aggravated wounding): (24) section 191(2) (aggravated injury): (25) section 198(1) (discharging firearm or doing dangerous act with intent to do grievous bodily harm): (26) section 198(2) (discharging firearm or doing dangerous act with intent to injure): (27) section 198A(1) (using firearm against law enforcement officer, etc): (28) section 198A(2) (using firearm with intent to resist arrest or detention): (29) section 198B (commission of crime with firearm): (30) section 199 (acid throwing): (31) section 208 (abduction for purposes of marriage or sexual connection): (32) section 209 (kidnapping): 21

22 (33) section 232(1) (aggravated burglary): (34) section 234 (robbery): (35) section 235 (aggravated robbery): (36) section 236(1) (causing grievous bodily harm with intent to rob or assault with intent to rob in specified circumstances): (37) section 236(2) (assault with intent to rob) The listed offences all have a maximum penalty of seven years' imprisonment or more On 17 December 2009 Cabinet agreed that the Bill should be amended to remove acid throwing and incest from the list of qualifying offences [CAB Min (09) 45/11 refers]. Original Submissions 108. No submissions were received about the definitions of record of first warning or record of final warning in new section 86A. However, a large number of submitters commented on the definitions of serious violent offence and qualifying sentence. These are discussed individually below. SERIOUS VIOLENT OFFENCE submitters commented on the list of serious violent offences. Most submitters suggested widening the scope of the definition to include more offences Many submitters considered that the definition should include all violence offences, while a small number recommended extending the scope of the Bill to all offences, regardless of seriousness or type. 15 submitters suggested the Bill should apply to any violent offence with a maximum penalty of five years' imprisonment or more A number of submitters suggested that certain specific offences be added. The following table summarises these submissions: Offence suggested for inclusion Manufacture sale of any illicit drug (s 6) Manufacture and/or sale of class A drugs (s 6) Manufacture and/or sale of P (s 6) Possession and/or use of any illicit drug Maximum penalty Reasons for inclusion (where given) Drug offences Misuse of Drugs Act 1975 and/or 8 years life imprisonment (depends on class of drug) Life imprisonment Life imprisonment 3 6 months imprisonment a large amount of violent crime is due to the offender being under the influence of drugs in particular P Number supporting inclusion

23 (s 7) (depends on class of drug) Possession and/or 6 months use of class A drugs imprisonment (s 7) Possession and/or 6 months use of P (s 7) imprisonment Property offences Crimes Act 1961 Burglary 10 years burglary is a stepping (s 231) imprisonment stone for violent offenders Car conversion 7 years smaller crimes lead on to (s 226(1)) imprisonment bigger, violent crimes Drink/drug driving (s 56 or s 58) Driving offences Land Transport Act st or 2 nd offence: 3 months imprisonment 3 rd or more offence: 2 years imprisonment this will create a deterrent for this behaviour and increase the status of road offending to criminal rather than accidental. Drink/drug driving 5 years causing injury or imprisonment death (s 61) Dangerous driving 5 years causing injury or imprisonment death (s 36) Offences against the person Crimes Act 1961 Poisoning with intent 14 years to cause grievous imprisonment bodily harm (s 200(1)) Breaking prison (s 119) Obtaining by deception or causing loss by deception (fraud) (s 240) Other Crimes Act years may reduce escapes 3 imprisonment 3 months this kind of financial 2 7 years offending is deserving of imprisonment substantial condemnation (depends on amount of loss) 112. Three submitters expressly stated that the list of offences should not be expanded as they were concerned that the Bill may go too far Three submitters expressed concern that the list of offences was inconsistent. LAC did not support the Bill, but commented that it was inconsistent to include: attempted murder (s 173 Crimes Act, maximum penalty: 14 years imprisonment), but not conspiracy to murder (s 175, 10 years); 23

24 injuring with intent to cause grievous bodily harm (s 189(1), 10 years) but not injuring with intent to injure (s 189(2), 5 years); acid throwing (s 199, 14 years) but not poisoning with intent (s 200, 14 years); indecent act on a young person (s 134(3), 7 years) but not indecent act on a dependent family member under the age of 18 years (s 131(3), 3 years) or on a person with a significant impairment (s 138(4), 5 years); robbery (s 234, 10 years) and assault with intent to rob (s 236(2), 7 years), but not demanding property with menaces (s 239(2), 7 or 14 years) LAC further commented that such inconsistencies were concerning given that, for most of the offences identified above, the same behaviour may satisfy the elements of both the included and excluded offences The remaining submitters commenting on the definition of serious violent offence suggested that the scope of the definition be restricted in some way Twelve submitters stated that they supported the original ACT Couch- Hobson Bill over the Sentencing and Parole Reform Bill, which is taken to mean that they approved of the list of offences in the Couch-Hobson Bill. Three additional submitters explicitly supported replacing the list of offences in new section 86A with the list contained in the Couch-Hobson Bill Six submitters considered the list of offences was too broad, and should be restricted to only those offences involving actual physical violence. This would exclude a number of the listed sexual offences, and those offences where violence is only threatened Three submitters suggested restricting the list of offences to those listed in section 86A (18) to (29) inclusive. This would limit the definition to certain serious offences against the person and the listed firearms offences. Three other submitters recommended excluding attempted sexual offences because they did not consider these offences to be as serious as the other offences listed Nineteen submitters suggested including two separate schedules of qualifying offences. The first schedule would contain offences that would qualify an offender for stages one and two of the regime. The second schedule would contain offences qualifying an offender for a stage three life sentence Most submitters considered that the first schedule should be wider than the second schedule. The second schedule would contain only the most serious offences from the first schedule. This would mean that an offender committing less serious offences would never progress to stage three, but would receive sentences with no parole orders under stage two if they continued to offend and qualify under the regime A small number of submitters suggested that the second schedule could be wider than the first schedule of offences. This would mean that an offender 24