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Goff Speech: Sentencing And Parole Reform Bill

Hon Phil Goff
Minister of Justice
Speech Notes

28 March 2002

Sentencing And Parole Reform Bill Second Reading

I move that the Sentencing and Parole Reform Bill be now read a second time.

I thank the select committee for its input into the Bill which has improved and strengthened it.

This Bill is a comprehensive reform of sentencing and parole laws.

First and foremost it responds to the need for reform and public support for change as indicated in the 1999 referendum. This referendum, at the end of 9 years of National Government showed huge public discontent with the state of our sentencing system.

There are a range of changes which improve and considerably toughen the current sentencing and parole system.

Most particularly, the legislation encourages the court to differentiate its sentences, to make the sentence better fit both the crime and the offender, taking full account of mitigating and aggravating factors.

With regard to murder, the usual penalty will still be life imprisonment with a minimum period before parole eligibility of at least 10 years.

But a significantly lesser sentence is possible where there are strongly mitigating factors such as a mercy killing. Where there are serious aggravating factors much tougher penalties will apply with a starting point of a minimum period of at least17 years before parole can even be considered.

Murders which involve factors such as home invasion, a high level of brutality and cruelty, multiple murders or where the victim was particularly vulnerable because of age or health will attract a minimum sentence of at least 17 years.

Preventive detention is an indefinite sentence available for violent and sexual offences short of murder. It can potentially involve a whole of life sentence and is designed to protect the community from further serious offending. The offender must serve a minimum period of no less than 5 years imprisonment, and where appropriate much longer, before parole can be considered. If released on parole the offender is liable to be recalled to prison throughout the rest of his life. This sentence has been broadened to encompass those aged from 18 years. It will cover a wider range of sexual and violent offences and its application will no longer require the prerequisite of previous convictions.

The legislation for the first time sets out in statutory form for any offending the principle that a judge must impose the maximum sentence if the offending is within the most serious of cases for which that penalty is prescribed.

Suspended sentences are abolished. Where immediate custody is appropriate for an offence judges will impose a sentence of imprisonment (which in some cases may end up being served by way of home detention). If immediate imprisonment is not appropriate then the bill has an adequate range of other options for dealing with offenders who currently receive suspended sentences, including the power to adjourn a sentence while the offender undertakes a programme of rehabilitation.

The bill abolishes the nonsense of having automatically to release a serious offender at 2/3 of their sentence. An offender still considered at risk can be kept in prison until the last day of their sentence.

An inmate who constitutes an undue risk to the community must not be released early. The net impact of this legislation will be to lock up for longer those who have committed the most serious offences and those who continue to constitute a risk to the community.

But someone who has shown remorse, dealt with the cause of their offence and who doesn’t constitute a risk will not be kept in prison unnecessarily at the taxpayer’s expense after they have served at least a third of their sentence.

The Parole Board is reconstituted and has a clear requirement that its paramount consideration must be the safety of the community.

As a result of the changes towards toughening sentences for serious and high risk offenders the prison population will be between 300 and 350 inmates higher than would otherwise be the case.

The fiscal cost provided for operational and capital spending will be $90 million over 4 years.

I regret that such expenditure for what is, in a sense, a negative use is required, but this spending of taxpayer’s money is necessary in order to make the community safer.

There are many other changes in this legislation, which are important in serving the interests of justice.

The ordering of the payment of reparations for example, is strengthened to the benefit of victims, being payable in a wider range of cases and judges now being required to give reasons in writing if reparation is not ordered. This strengthens the presumption in favour of reparation.

The bill as reported back includes a code which sets out the onus and standard of proof on the prosecution and defence when facts are disputed at sentencing. This is not intended to make a major change to current practice but to clarify the law for the small number of cases where facts relevant to sentencing are disputed and this dispute cannot be resolved by the judge on the basis of submissions or by agreement between counsel.

I would like at this point to foreshadow two changes of substance that I intend to put in an SOP to the house in the Committee of the Whole.

One is an amendment to enable the Youth Courts to remand a young person of 15 or 16 to a penal institution.

An equivalent amendment is made to extend the present power of District Courts and High Courts to remand 16 year olds to penal institutions to 15 year olds.

For many years, young people aged 14-16 have been remanded in custody in police cells when Child Youth and Family residences are full. For example, in March-June 2001, 28 young people were remanded for a total of 151 bed nights. The average stay was 5.4 nights but the longest stay was 16 nights.

Police cells are not designed for this length of stay. Facilities lack provision for exercise, eating, education programmes, and sometimes even natural light.

Last May, the Chief District Court Judge and Principal Youth Court Judge wrote to me expressing their concern about this long-standing problem.

To address this problem, the Government is working to construct youth residential facilities managed by the Child Youth and Family Service. It is looking to make changes to fast-track procedures to reduce the amount of time spent on remand in custody awaiting trial. It will also look at increasing the number of secure but community-based alternatives to custody.

Unfortunately, all of these will take time for the relevant Departments to put in place. Meanwhile, I am not prepared to see young people continuing to be kept in totally unsatisfactory conditions in police cells.

A short term but immediate alternative is to transfer long term remand 15 and 16 year old young people likely to be sentenced to imprisonment to prison, preferably to the purpose-designed youth units (Waikeria, Rimutaka, Hawkes Bay, Christchurch).

These cater for under 17 year old sentenced inmates, assessed as vulnerable, and provide intensive programmes for young prisoners.

The legislation provides for this to happen on an interim basis when the shortage of suitable facilities makes the remand of a young person to a penal institution unavoidable.

There is a sunset clause in the legislation by which this remand power will expire on 30 June 2004.

A second amendment will allow Courts to set a minimum period of imprisonment of up to two-thirds of the sentence before parole is considered, in the case of determinate sentences of more than 2 years.

While it is unlikely that a serious offender would be considered suitable for parole at one third of their sentence, given that the Parole Board has as its paramount consideration the safety of the community, there may be public concern that this could happen.

As a safeguard, the SOP therefore provides for a judge in such cases to have discretion to set a minimum period before parole eligibility of up to two-thirds of the sentence, or 10 years whichever is the lesser period.

This is likely to be used by judges in serious cases only, usually involving violence or sexual offending, and where a relatively long sentence has been imposed.

The offenders against whom minimum periods before parole are imposed are those who would not have been granted early release by the Parole Board in any case and so this measure will be unlikely to add further to the prison population. It will however avoid victims having to go through the unnecessary stress of making representations to the Board in the cases against early release.

This legislation makes a huge improvement in sentencing and parole laws which is well overdue. It is tougher where it needs to be, and more flexible where that is desirable.

I commend it to the house.

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