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Seminar at the NZ Centre for Public Law

Seminar at the New Zealand Centre for Public Law

12.30pm Wednesday 16 August, VUW Law School, Wellington

Thank you all for being here today. I'm pleased to have the opportunity to discuss the government's plans for the criminal justice sector and the wider context of those interventions, with you today.

This Government's vision for the justice sector sees a society and an economy where all families, young and old are safe and secure so that they are able reach their full potential and prosper.

To help achieve this, we intend to continue to address crime with policy that prevents and reduces its occurrence, helps victims, supports those who genuinely want to turn their lives around, and targets repeat offenders and hardened criminals and their activity. These are all critical elements of an effective, long-term policy programme that will help build safer communities for all New Zealanders.

Yesterday, the Prime Minister, the Corrections Minister and I, along with Law Commission President, Sir Geoffrey Palmer, outlined a significant package of initiatives dealing with the way offenders are sentenced and how those sentences are served, and reducing New Zealand's growing prison population.

Tackling the problem of the growing prison population is clearly one of the key challenges facing the Justice sector. The social and economic consequences of imprisonment are significant.

New Zealand's imprisonment rate is high. From a peak of 7,610 inmates in March 2006, forecasts indicate that the prison population could be nearing 9,000 within five years. We now have the fifth highest imprisonment rate in the OECD.

As the Prime Minister noted yesterday, we are in the somewhat paradoxical position of having the lowest recorded crime levels in two decades but an ever-increasing number of people in our prisons. I do not believe this is a situation in which most New Zealanders should or do take any pride.

The reasons for this situation are complex. Over the past 10 months or so there has been a significant amount of work undertaken by a number of agencies to help fully understand the reasons for the increase and some of the options for addressing both its causes and impacts.

The Government has now agreed on a range of strategies designed to reduce both criminal offending and the prison population on a number of fronts.

The measures that the Government has approved to reduce our use of imprisonment over the medium to long term can be grouped into three broad themes: · Tilting the balance earlier to prevent crime; · Using alternatives to prison – where this is appropriate; · Adopting smarter uses of prison resources.

It is the second area I want to concentrate on today – a fresh look at the range of sentencing options available to the courts so that imprisonment is used effectively and in appropriate cases. I will talk about plans for a Sentencing Council, which will build on the reforms contained in the Sentencing Act 2002; significant changes to home detention; and changes to the range of community-based sentences currently available to the courts.

But first I will make a brief comment by way of background about the measures the Government plans to take to prevent crime, because this is the most effective way of reducing the prison population in the long term, and puts in their proper context yesterday's announcements.

A number of proposals have been developed for expanding early intervention services, reducing youth offending, targeting at-risk families, working with prolific offenders, and improving access to alcohol and drug treatment programmes. A lot can be done to fill gaps in service coverage, improve coordination of services, and achieve better engagement and retention of families in services.

It's important to remember that a small group of young people offend repeatedly, and are responsible for a large amount of crime, making a strong case for early and intensive intervention.

The Social Development and Justice Ministries are preparing a comprehensive package of interventions to reduce youth offending, for consideration as part of Budget 2007. One example of the type of specific measures we are looking at is the successful Tower project from the United Kingdom, which involves intensive multi service interventions to address the needs of families of high-risk, prolific offenders in specific localities, to reduce the likelihood of their re-offending.

The Background to Effective Interventions

I noted earlier that New Zealand is currently experiencing the lowest levels of recorded crime since the early 1980s. The number of crimes recorded in 2005 was 15 percent lower than in 1996. The reduction is even more striking if we factor in population growth – by that measure the recorded crime rate fell by 22 percent over the same period.

This is not to say that we should be complacent about the level of crime. On the contrary, crime levels are still too high and our Government will continue to pursue all reasonable measures to protect our citizens from crime and hold offenders to account.

But as I've noted, within the context of decreasing crime, the increase in the prison population seems anomalous. Inmate numbers currently stand at about 7,700. Twenty years ago there were less than 3,000 prisoners and in 1996 the number was about four and a half thousand. In addition to the obvious social costs, this increase has put significant pressure on the Corrections system.

A high rate of imprisonment is nothing to be proud of. Nor does it reflect the values we as New Zealanders hold dear.

As far back as 1954 a Government publication noted that New Zealand had 50% percent more people in prison than England and Wales relative to our population. A particular tragedy of New Zealand's high imprisonment rate is the high number of Maori in our prisons. Over half of all inmates are Maori, while Maori only make up about 15 percent of the total population. These are major problems that will not be resolved by simple measures. This Government is determined, however, to work towards long-term, sustainable solutions.

This is not something the Government can do on its own. Across New Zealand, and at various stages of the criminal justice system, there are some programmes for Maori and Pacific peoples that are reportedly effective or that show promise. We will be working together with appropriate community providers to identify practical and effective initiatives that the Government can support or further roll out.

Let me also say by way of introduction to the sentencing interventions we are proposing that there is no – "no-cost" option. At an operational level, if the status quo remained, the Corrections Department would have had to seek approval to expand six of its existing penal institutions to provide 900 new prison beds over the next five years. The implementation of the Effective Interventions package means that 480 of these beds will not need to be built, while projected capital and operating costs will also be significantly reduced.

Reforms to Criminal Justice Legislation

Part of the increase in the prison population reflects the tough approach this Government has taken to crime. Though I want to be very clear: for those who commit serious crimes, especially violent and sexual offences, they will continue to go to prison – as will those who repeatedly break the law or demonstrate that they will not comply with lesser sentences.

However for some other offenders the use of non-custodial and community sentences may be a more effective way for them to serve their debt to society. It's important to note: to many of those who work in the criminal justice system, it is clear that imprisonment is not the solution it is commonly perceived to be.

In our first term, we enacted major reforms of the legislation governing each of the three areas that impact directly on the prison population – bail, sentencing and parole. These reforms were a direct response to the 1999 referendum, which showed that an overwhelming proportion of New Zealanders wanted to see a tougher approach to those who break the law, especially violent offenders.

The Bail Act 2000 tidied up the law in this area, where it had previously been scattered through various statutes and the common law. It introduced restrictions on bail for serious and repeat offenders and enabled breaches of bail conditions to be recorded so that they can be taken into account in future bail applications.

Remand inmates – those held in custody while awaiting trial or sentence – comprise about 20 percent of the total prison population. The remand population has increased at a much faster rate than sentenced inmates in recent years – a 79 percent increase over the 1999-2005 period compared to a 14 percent increase in sentenced inmates. The Bail Act seems to have accentuated an increasing trend.

No major changes to the Bail Act are proposed. However, we intend to make some minor amendments to provide greater consistency in judicial decision-making, which are expected to lead to a small reduction in the number of remand prisoners.

The Sentencing Act 2002 aimed to increase the transparency and consistency of sentencing decisions. More guidance was provided to the courts for matching the type and severity of sentences to offence seriousness and offender culpability. There was a re-structuring of community-based sentences. Sentences such as corrective training and suspended sentences, which had proven ineffective in reducing re-offending, were abolished.

The Parole Act 2002 established a single parole authority, the New Zealand Parole Board, with the aim of improving the quality and consistency of parole decision-making. The Act confirmed community safety as the Board's paramount consideration in all decisions concerning the release of offenders into the community. Since the parole reforms were introduced, there has been a significant reduction in the proportion of prisoners granted early release.

The Victims' Rights Act 2002 strengthened and extended the rights of victims across the criminal justice system. It aimed to increase victims' opportunities to participate in the criminal justice system, increase their choices about how they participate, and improve protections for them.

I am confident that these reforms helped contribute to the reduction in crime levels I spoke about earlier, and have increased public confidence in the criminal justice system.

However, there are also some un-intended outcomes that have happened as a result of the 2002 changes, which we believe will be addressed by the initiatives announced yesterday. One of these outcomes is the increase in length of sentences across the board rather than just those for serious and dangerous offenders, as was the intention of the changes.

Monitoring data on the effects of the sentencing reforms, suggests that it is not the most serious offenders group that has driven the increase in prisoner numbers in the last few years. It is the increasing use of incarceration for less serious offenders that has played the more important role.

Between 2000 and 2004, the proportion of community-based sentences imposed in the adult courts fell from 31% to 25%. During the same period, the use of imprisonment increased from 8.3% to 9.4%. Although these changes do not seem large, they represent hundreds of offenders and have had a significant impact on the prison population.

The Sentencing Act included major reform of community-based sentences. The old sentences of supervision and community programme were merged into the new supervision sentence, while the former sentences of periodic detention and community service became the new community work sentence. One of the problems with change of this sort is that it takes some time for key operatives in the criminal justice system to develop a clear idea of how a new sentence should be used. Periodic detention had been around for nearly 40 years and was widely accepted by judges as a punitive sentence that could be imposed in place of a short prison sentence. The new community work sentence had to establish a similar profile.

Judicial confidence in community-based sentences is crucial to their being widely used. If the judges do not believe that a particular sentence is an appropriate response to an offender's behaviour, they will impose another – possibly more severe – sentence. Recent consultation with the judiciary has identified concerns about the current regime. There is a lack of clarity about the severity of various sentences and how they compare to imprisonment and to each other. There is also a perception that fewer options are now available to judges.

New structure for sentencing

The Government is moving to address concerns about sentencing options in two ways. First, the Sentencing Act will be amended to include a clear hierarchy of the available sentences, and, second, and importantly, two new community-based sentences will be introduced.

The hierarchy of sentences will be based on the degree of restriction on the offender's liberty, and the level of supervision provided, that each sentence entails. Imprisonment will clearly be the most severe sentence. The next penalty will be home detention, which is to undergo significant changes that I will outline shortly. There will then be third and fourth tiers of community-based sentences. The two new sentences, to which I just referred, will comprise the third tier, while the existing sentences will be placed in the lower fourth.

The proposed new sentences are an electronically-monitored curfew and intensive supervision, both of which will provide a higher level of restriction and supervision of offenders than either of the existing community-based sentences. The curfew sentence would be particularly suitable for those whose offending has a specific pattern or tends to occur at particular times. Intensive supervision would provide for a larger and more complex set of special conditions than is currently available under the supervision sentence.

Credibility with the judiciary and the community is absolutely critical to the success of the proposed changes. Officials are undertaking further consultation with the judges, in order to determine the final shape and details of the proposals. However, I am confident that these new sentences will be accepted as credible alternatives to a short sentence of imprisonment, and that their introduction will lead to a reduction in prison numbers.

Home Detention

Home detention has been an important part of our criminal justice framework for many years. The original pilot scheme began in 1995 and home detention has been widely available to sentenced prisoners since 1999. The Sentencing Act 2002 retained the two forms of home detention – "front-end," which refers to sentences of two years or less and can take effect from the date of sentence, and "back-end," which is a parole option for longer prison sentences.

Under the existing front-end home detention provisions, in sentencing an offender to a term of imprisonment of two years or less, the court may give leave for the offender to apply for home detention. The New Zealand Parole Board then considers the offender's application, having received a report from the Community Probation Service on the offender's suitability for this form of detention.

There are various misconceptions about home detention, but the Government believes home detention has a number of advantages for many offenders who would otherwise receive a short sentence of imprisonment: · It assists in the reintegration/rehabilitation of offenders by allowing accommodation, employment and family responsibilities and relationships to be maintained; · There are comparatively low reconviction and re-imprisonment rates – a quarter to a third lower than for those serving prison sentences of up to one year; ·

Home detention has high compliance rates – less than 2% of offenders are recalled to prison; and · There are also much lower costs: And yes, we should all be pleased that maintaining an offender on home detention incurs costs of approximately $22,000 per annum compared to $59,000 for a minimum-security prisoner.

So, as part of the new package home detention will be established as a sentence in its own right – rather than as a means of serving a sentence of imprisonment. This will effectively replace front-end home detention.

The new sentence of home detention will involve a maximum term of 12 months, which can be combined with a term of community work or a fine, as an alternative to a sentence of imprisonment. In the hierarchy of penalties I referred to earlier, home detention will be established as the second tier sanction after imprisonment.

Once fully implemented, it is estimated that the new home detention sentence will save 310 prison beds, making it one of the most significant proposals in terms of a direct impact on inmate numbers. Use of the new sentence would be subject to the new sentencing guidelines, which I will discuss shortly.

Restorative Justice

Access to proven and new restorative justice processes is also an important feature of the interventions we propose to rollout. The Effective Interventions package comprises four proposals to expand the availability of restorative justice processes at different stages of the criminal justice system.

Restorative justice processes require offenders to face their victims, redress the harm caused to victims and the community, and to address the causes of their offending.

Restorative Justice evaluations have told us that significant numbers of victims of crime value this service. When managed safely, and when the victim has agreed to take part, restorative justice can offer victims of crime a real voice in the criminal justice system. A victim can sit face to face with an offender and ask the questions they want answers to.

These evaluations also tell us about the long-term benefits that victims receive from the restorative justice process. For instance, twelve months afterward most victims who participated in pilot programmes were still satisfied with their restorative justice conference and the sentence handed out, and most believed the process was useful in helping them put the incident behind them.

The evaluations also tell us that offenders do not consider a restorative justice process a 'soft option'. It may well be the first time that an offender has had to accept full responsibility for their actions and be in a position to front up and to apologise to the person they have harmed.

The proposals are: restorative justice processes for both less serious, and more serious offending; increased provision of restorative justice in conjunction with prisoners' re-integration into the community; and the development of a national performance framework.

· The first of these proposals will extend provision of restorative justice processes in cases of less serious offending, as part of the Police Diversion process. In these cases, the use of restorative justice can ensure that offenders are held fully accountable, both to those who have been directly harmed by their offending, and to their community, in a way that nonetheless will support them to become contributing and law-abiding members of the community.

· The second proposal is for the staged extension of the successful pilot of restorative justice in cases of serious offending – where an offender has pleaded guilty and admits responsibility, and the offence is serious so diversion is not an option and imprisonment is a possible outcome. This will provide opportunities for victims of these offences to meet offenders in a controlled and safe environment, and to have the outcome of their meeting taken into account in the sentence of the offender.

· The third proposal is a positive new development that will use restorative justice when offenders are in prison and as part of the process of reintegrating them into the community.

Initially this would be through a trial programme in two prisons where victims will be offered the opportunity to meet the offenders who have harmed them before they are released. The victims will have a chance to allay fears and to agree ways that they can feel safe, even in small communities where both offender and victim will live.

· The fourth proposal is a cornerstone for the expansion of restorative justice, and would provide a performance framework to ensure safe and high quality practice that meets the needs of the criminal justice system, victims, and offenders. These four proposals will increase significantly the opportunity for victims to have a real say in the criminal justice system and into outcomes for those who have harmed them through criminal offending. They will also put much more emphasis on requiring offenders to take responsibility and be held accountable for their actions.

Sentencing Council

I want to move on now to perhaps the most significant structural innovation in the proposed reforms – the establishment of a Sentencing Council. This Council will be responsible for issuing sentencing guidelines. Similar bodies have been established in recent years in many jurisdictions which share New Zealand's common law traditions, such as England and Wales, more than 20 states of the United States and some Australian states.

The establishment of a Sentencing Council can be seen as building on the guidance to judges contained in the Sentencing Act 2002. That Act's predecessor, the Criminal Justice Act 1985, contained very little in the way of guidance to judges as to the use of various sentences.

In this context, the Sentencing Act · codified sentencing purposes and principles, · listed aggravating and mitigating factors,

· required judges to impose the maximum sentence or something close to it in the worst cases, and · provided for minimum terms of at least 17 years for the worst murder cases.

Earlier this year, the Government asked the Law Commission to examine sentencing issues and make recommendations about possible improvements. We are very fortunate to have on the Law Commission two of the country's foremost experts in this area. The Commission's President, Sir Geoffrey Palmer, is a former Minister of Justice – and Prime Minister – while the Deputy President is Dr Warren Young, a former Professor of Law and Deputy Secretary for Justice.

The Law Commission's report has been very helpful in clarifying many of the issues relating to sentencing. It identified the key problems arising from our current system, as follows:

· Sentencing guidance is provided by the higher court judiciary, which means it cannot be informed by the range of perspectives, experience and expertise that one would wish to see in the development of sentencing policy.

· The appeal structure means that guidance is only given in the context of cases coming before the court – it is therefore reactive rather than proactive and tends to be limited to the most serious offences.

· There is significant inconsistency between judges and between courts in the sentences imposed, particularly in relation to lower seriousness offences. · There is no mechanism for Parliament to adjust sentence levels or accurately predict the impact of changes to maximum penalties.

· The existing guidance does not adequately take into account the cost-effectiveness of different sentencing options.

The Law Commission recommended the establishment of a Sentencing Council as the best mechanism for addressing the problems with the current structure. The Council would be established as an independent statutory body, comprising four judges, the Chair of the New Zealand Parole Board, and five other members, who would have expertise in relevant areas such as policing, victims' issues, the reintegration of offenders into society, and the impact of the criminal justice system on Maori and minority groups.

A Council consisting of a mix of judicial and non-judicial members would broaden the base of responsibility for determining sentencing policy and promote sentencing consistency. The Sentencing Council would be responsible for issuing sentencing guidelines, which are a proven mechanism not only for promoting sentencing consistencies, but also for assisting in the management of penal resources in other jurisdictions.

The chief responsibility of the Sentencing Council would be to issue sentencing guidelines in relation to the whole range of criminal offences. Judges of the adult courts would be required to comply with the guidelines unless they were satisfied that it would be contrary to the public interest to do so. The guidelines would have to be endorsed by Parliament before they came into force. It is proposed that this would be achieved by the inaugural guidelines coming into force 30 sitting days after they have been presented to the House unless the House (on the notice of motion of any Member) disallows them by way of a negative resolution. Subsequent iterations would come into force after 15 sitting days.

The purposes of the Sentencing Council, which would be set out in statute, would be along the following lines

· To promote consistency in sentencing practice between different courts and judges,

· To ensure transparency in sentencing policy,

· To foster the development of sentencing policy, informed by a breadth of experience and expertise,

· To facilitate effective management of penal resources,

· To inform politicians and policy makers about sentencing and parole practice and reform options, and

· To inform the general public about sentencing policies and decision-making, thereby promoting public confidence in the criminal justice system.

The two major objections to changing the status quo do not hold up under close scrutiny:

· In the sentencing context, judicial independence means that a judge must be free to decide individual cases without interference from other branches of Government. Accepting that proposition, it does not follow that judges should determine the overarching sentencing framework.

· There is also the view that resource considerations should not influence or determine punishment levels. This ignores the fact that these levels are themselves a matter of values, and cost is a relevant factor in such considerations. Even in this vital area of Government activity, moreover, it has to be accepted that there are constraints on the public purse – just as there are in policing and the health system.

Changes to parole

The Law Commission also made a number of recommendations for parole reform, which the Government has agreed to. It is proposed that the Sentencing and Parole Acts be amended with regard to the way determinate sentences are imposed, and the proportion of sentence that must be served prior to parole eligibility. No changes are proposed to the indeterminate sentences of life imprisonment and preventive detention.

The normal practice when a judge imposes a determinate sentence is not to make any reference to when the offender will become eligible for parole or mandatory release. This fails to recognise the fact that offenders only rarely actually serve the total sentence imposed by the court.

It is therefore proposed that the Sentencing Act be amended to require judges to make explicit reference to the total sentence and its parole component when imposing a determinate sentence of imprisonment.

The Parole Act confirmed parole eligibility at one third of sentence for inmates serving determinate sentences of more than two years. It included provision for the courts to impose minimum terms of up to two thirds of sentence in special circumstances, but in practice this only happens in about 10 percent of cases.

In fact, there has been a significant increase in the average proportion of sentence served prior to release since the Parole Act came into force – from 50 percent to 62 percent – but early parole eligibility is one of the principal drivers in calls for "truth in sentencing." It also means that punishment and deterrence issues – rather than the risk the offender poses to the safety of the community, as the statute directs – tend to dominate parole decisions.

The Law Commission has identified the following problems with the long period of parole eligibility under the current regime:

· The Parole Board generally has to consider a case on several occasions before authorising release, which has negative implications for the victims of offences;

· It creates difficulties for the Department of Corrections in scheduling rehabilitative programmes, which are most effective if delivered close to the time of release, where the latter is uncertain;

· The uncertainty about how long inmates will actually remain in custody adds to the difficulty of accurately forecasting the prison population, which has substantial resource implications.

To address these issues, a number of changes to the parole regime are proposed. Those sentenced to terms of up to 12 months would serve their sentences in full – at present, they are automatically released at half-sentence. Offenders serving determinate sentences of more than 12 months would become eligible for parole after serving 12 months or two thirds of sentence, whichever is greater. Currently, these offenders are generally eligible for parole at one third of sentence.

These changes would see prisoners serving a greater proportion of their sentences prior to parole eligibility but would shift the focus of parole decision-making exclusively on risk to the safety of the community.

The proposed parole reforms are expected to result in determinate sentence inmates serving an average 80 percent of their nominal sentences – compared to 62 percent at present. As this would lead to a significant increase in the prison population, the Law Commission also proposed that these reforms would come into force at the same time as the introduction of sentencing guidelines. It is estimated that the sentencing guidelines would need to include a 25 percent reduction in average sentence length to balance the effect of the parole reforms.

In order to improve the consistency of parole decision-making, it is proposed that the Sentencing Council would also be responsible for issuing parole guidelines. This is intended to ensure that sentencing and parole policies are properly integrated and to facilitate prison population forecasting.

Concluding comments

I think it's important to reiterate that the new initiatives announced yesterday aim to achieve two key outcomes: firstly, to address – alongside the wide range of early intervention and crime prevention programmes already underway – the underlying causes of crime, and its consequences on the lives of all New Zealanders, which will in turn build safer communities; and secondly, to reduce the rising prison population and all of its impacts.

Our Government believes that achieving these outcomes will need a new approach based on investing earlier to prevent crime, using alternatives to prison, where appropriate, and adopting smarter uses of prison resources.

The Effective Interventions package represents a commitment by this government to build on the successful strategies of recent years, which have lead to the lowest crime rate in New Zealand in a generation.

But I would also repeat that Government will not and cannot progress these initiatives working alone. The actions of many from across the community will be needed and will be more important than ever. As will continued discussion, consideration and debate on the issues, the impacts and the solutions.

In that spirit I thank you again for your attendance and in the time remaining now welcome your comments or questions.


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