ACT Justice Spokesman Stephen Franks is proposing an amendment to the Sentencing and Parole Reform Bill aimed at resolving the controversy over the Government's late inclusion of `hate crime' provisions.

His proposal would preserve courts' current power to hand down "example" deterrent sentences and aim it at terrorism generally, which would include `hate crimes'.

Mr Franks said the "hate crime" provision as currently proposed was unprincipled.

"True hate crime is just a form of terrorism and it should be treated as such.

"The existing provision in the bill breaches our constitutional assurance of equality before the law. It establishes privileged classes, such as gay people or, Maori, by giving priority to their safety. Should a black power prospect who kills a white supremacist in a gang fight enriched with racist insults, get a longer sentence than the skinhead who gets a senseless buzz out of murdering a harmless women in her garden?"

"ACT's amendment focuses instead on what should have been the true concern of the law, namely deterrence using victims as examples, or hostages, or objects on which to vent hatred actually directed at a group or class. It covers bullying at one end of the scale, through to terrorism at the other. Courts must be empowered to stamp hard on such violence, with a signal that it will not be tolerated.

"I believe all parties can support my amendment, and I have written to them asking for that. It would require the Government to accept restoration of deterrence as a valid sentencing principle. A principle to authorise deterrence of others was expressly excluded from the bill.

"The whole push for hate crime law depends on a belief in deterrence, so reinstatement of it should not be an obstacle.

"No aggressor should feel that a lack of deterrent sentencing power represents tacit support from the State for unlawful acts of hostility toward minority groups.

"I look forward to Parliament giving serious consideration to my Supplementary Order Paper as I believe it tackles the spirit of what was intended by the `hate crime' provisions, but without those provisions' politically correct discrimination," Stephen Franks said.

SUPPLEMENTARY ORDER PAPER ATTACHED

HOUSE OF REPRESENTATIVES

Supplementary Order Paper

Thursday 14 March 2002

Sentencing and Parole Reform Bill

Proposed amendments

Stephen Franks, in Committee, to move the following amendments:

Clause 8 Principles of sentencing

To insert, after paragraph (i), the following paragraph:

[In sentencing or otherwise dealing with an offender the court -

(a) ...]

(j) must take into account the requirement to deter other people from offending, and, in particular, -

(i) offences intended to incite or facilitate other offences; and

(ii) offences intended to intimidate or unlawfully coerce people other than the immediate victim.

Clause 9 Aggravating and mitigating factors

To omit paragraph (ga) from subclause (1).

__________

Explanatory note

The existing hate crime provision reads:

"In sentencing or otherwise dealing with an offender the court must take into account he following aggravating factors to the extent that they are applicable in the case:

(a) ...

(ga) That the offender committed the offence partly or wholly because of hostility towards a group of persons who have an enduring common characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age or disability; and

(i) The hostility is because of the common characteristic; and

(ii) The offender believed that the victim has that characteristic."

ACT considers that the Labour/Alliance/Green hate crime provision as proposed is unprincipled. It breaches our constitutional assurance of equality before the law, by establishing certain privileged classes of New Zealander. It could require, for example, that the law value an innocent woman murdered for her purse, less than it does a gang member, murdered in a fight between rival race supremacist gangs.

ACT's amendment focuses instead on what should have been the true concern of the law, namely using victims as examples, or hostages, or objects on which to vent hatred actually directed at any group or class. It should cover bullying at one end of the scale, through to terrorism at the other. Courts must be empowered to stamp hard on group violence, with a signal that it will not be tolerated. The Bill does not otherwise include deterrence of others as a sentencing principle.

Non-violent expression of political or religious or racial or sex animosities must remain lawful in a free society, but the law should not foster consciousness of such differences. Instead the current hate crime provision in clause 9 could aggravate identity consciousness. It gives the bodies of some people more sanctity, a higher price, than others. That is a consequence both of its placement in clause 9 (which requires a focus on the particular offender and particular victim) and of the drafting of the clause. It is the wrong provision in the wrong place.

The amendment remedies the lack of express power for a judge to sentence with a view to deterring others, supplementing the principles in clause 8 presently confined to the needs of the individual offender, the risks of reoffending, and the assessment of the case relative to others.

Accordingly the proposed new clause 8(j) allows the courts to hand down example deterrent sentences. No aggressor should feel that a lack of deterrent sentencing power represents tacit support from the State for unlawful acts of hostility toward minority groups.

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