Sunday, 29 April 2012

Key And Consistency

In an August 2008 press release ( about the Winston Peters and Owen Glenn saga John Key said, “Unless he can provide a credible explanation about this serious issue, he should be unacceptable to Helen Clark as a Minister in her Labour-led Government. “Mr Peters will be unacceptable as a Minister in a government led by me unless he can provide a credible explanation.” Surely we can now say, “unless John Banks can provide a credible explanation about this serious issue, he should be unacceptable as a Minister in Key’s National-led Government, Mr. Banks will be unacceptable as a Minister in a government unless he can provide a credible explanation?” It is amazing how Mr. Key’s standards have slipped since he has become Prime Minister. 

This really is a rich yet typical example of Key's double standards. Sadly I believe that unless there is a political cost that will undermine Key's agenda, I doubt whether moral consistency is something Key actually cares about. As Rod Oram said back in November 2008: "A friend in the money sector says the popular consensus among the traders and bankers is that John Key has a superb set of antennae but no compass."

For ease of reference I attach Key's press release from the time:

Peters unacceptable in a National-led Government

John Key MP
National Party Leader
27 August 2008
Peters unacceptable in a National-led Government
National Party Leader John Key says Winston Peters would be unacceptable as a Minister in a government led by him unless Mr Peters can provide a credible explanation on the Owen Glenn saga.
“Labour Party donor Owen Glenn’s letter to the Privileges Committee completely contradicts Winston Peters’ version of events about the substantial $100,000 donation made by Mr Glenn to Mr Peters’ legal costs.
“Mr Glenn’s letter represents a direct challenge to Mr Peters’ credibility, from the only other person in the world in a position to know the facts.
“From Parliament’s point of view, the Privileges Committee provides an appropriate vehicle to resolve the points of conflict and to hold individuals to account. But from the Prime Minister’s and the Government’s point of view, that is not enough.
“Governments and Ministers must enjoy the confidence of the Parliament and, ultimately, the public. Faced with today’s revelations, it is no longer acceptable for Mr Peters to offer bluster and insults where simple, courteous, honest answers are required.
“It is no longer acceptable or credible for Helen Clark to assert a facade of confidence in her Foreign Affairs Minister and to fail to ask the plain questions of him that she has a duty to the public to ask.
“Faced with today’s revelations, Helen Clark must stand Mr Peters down as a Minister. That is what I would do if I were Prime Minister. Helen Clark has stood Ministers from Labour down for much less.
“Unless he can provide a credible explanation about this serious issue, he should be unacceptable to Helen Clark as a Minister in her Labour-led Government.
“Mr Peters will be unacceptable as a Minister in a government led by me unless he can provide a credible explanation.”


Saturday, 28 April 2012

Changes to Bail and the Presumption of Innocence

The Herald on Sunday editorial today (29 April 2012)  raises some valid points about the horrendous situation that occurs when someone on bail offends violently.  However while Judith Collins wants to make it difficult for people presumed innocent to get bail, the proposals are going to create significant problems of their own. By "violent offence" a definition is used that includes those defendants charged with an offence that attracts a sentence of 2 years or more. Police frequently "over charge" in the District Court, with a view to extracting a guilty plea to lesser charges.

I recently assisted a client in a jury trial, where he was charged with assault with intent to injure and burglary. He was a local builder accused by Police of walking over to a neighbour's house at 2-00 am in the morning after over 5 weeks of the young drunken tenants continuously playing heavy metal music at all hours and assaulting them. He was bailed at first instance and had to wait over a year for his trial. During the trial it emerged that Police and their witnesses never properly identified my client and in fact it was most likely someone else who entered the property and assaulted the neighbours. After a week's trial he was acquitted in just twenty minutes. Under the bail changes he would face a reverse onus in terms of his liberty, and once remanded in custody would have lost his job and would have been unable to support his family. Further the mortgage would have not been able to be paid and a family would have lost its home.  Worse still, if he wished to maintain his innocence and defend the charges at trial, he have to wait over a year for his day in Court. Further once acquitted he will never be compensated for what he has truly lost.

Under such a regime, people such as my client would be placed under tremendous pressure, to plead guilty, to get it over with, even though they may well be innocent.

There are around 9000 inmates currently in our prisons and it costs say $285-00 per day to house them, that means it costs our country $2,565,000-00 per day to house our inmate population. If we start banging away more and more people even though they are presumed innocent it is going to become very expensive indeed. Worse, good decent people who are charged, when faced with the prospect of a lengthy remand in prison and the financial ruin that that involves are going to be placed under tremendous pressure to plead guilty even when they may well be innocent. 

Friday, 13 April 2012

The Role of Victims in Sentencing and Parole

      The recent debate about increasing the "role of victims" in the sentencing processes in our Courts is a good thing, those who suffer as a result of crimes should be heard. However we must be careful not to allow our courts to become platforms where the suffering of victims is relived again and again and again for the sole purpose of allowing someone to express hatred or to have the scab that has begun to heal continually picked open to  satisfy a push by extreme sector groups to establish what to my mind appears to be a purely retributive justice system.

      Victims are not a special class of persons. They like all of us come with different backgrounds and life stories. Most I have genuine sympathy for. Some however can be just as untruthful as a convicted accused. Some just want to forgive and forget and allow time to heal. I have seen cases where a Judge wanting to find out how a victim "really feels" actually through questioning made a victim go from wanting to forgive an accused to breaking down and crying for revenge. 

      Sometimes  I have seen cases where one person who commits an offence will get a wildly different sentence from another person who has committed the same type of offence. The only difference being the views of the victim. Parity in sentencing can be eroded by placing undue weight on the views of victims. Further, just because someone is a victim of offending their ability to speak only the truth with complete objectivity is not guaranteed. To develop policy based upon the views of people  when they are still in the melting pot of raw emotion is   dangerous. Indeed that is the sort of passion that fuels mob justice.

      It is entirely proper that victims can make submissions at all hearings of the trial and parole processes.This reflects an international trend in relation to victim’s participation in sentencing and the parole stages of sentence. Impact is properly taken into account in terms of sentencing.  As Matt Black opined in his May 2003 paper published by the Australian Institute of Criminology; Victim Submissions to Parole Boards: The Agenda for Research:

If victim submissions are likely to have a large impact on parole decisions, disparity may arise between offenders whose victims make submissions and those whose victims do not. The mere presence of a victim submission seems small justification for treating an offender more harshly. It was noted that the parole board studied by Parsonage et al. (1992) subsequently reassessed its guidelines to clarify how victim submissions should be used (Bernat et al. 1994).

      To accept a victim’s statements regarding their belief about sentence integrity as a reason for sentencing in a certain way or for denying parole presents difficulties. There is the clear risk of disparity in sentencing and parole outcome for people  presenting with similar fact patterns:  the same offending characteristics can affect two individuals in completely different ways. The same assault on a confident physically resilient person, for example, may well have a less serious impact both emotionally and physically than it would on someone of the same age etc but with poor health and a nervous disposition. Similarly, two individuals may well have completely different views as to severity of punishment, for example length of time to serve before release on parole, which fits the crime. In both cases, the risk of inconsistency would be increased.

      Black (see above) referring to the use of victim submissions to parole boards in Australia notes that Tasmania has one of the most comprehensive legislative frameworks for the use of victim submissions in the parole process (in Australia):
The Tasmania Parole Board's (2001) view is that "in nearly all cases it would be wrong to refuse parole solely because of the objection of a victim". However, it does see victim submissions as "relevant to the sort of conditions which would be imposed on [a] parole order". For example, the board commonly imposes freedom of movement restrictions in order to ensure the offender does not come into contact with the victim.
      As noted from the 2005 Annual Report of the Parole Board of Tasmania:
The Board considers it would be wrong and contrary to the requirements of the Act to refuse parole solely because of the objection of a victim or relative; such objections are relevant in the overall decision making process and are certainly relevant to the sort of conditions which would be imposed on any parole order that might be made. For instance the Board almost always imposes limits on the freedom or movement of parolees in order to eliminate or at least reduce the risk of the prisoner coming into contact with a victim of his criminal behaviour.[1]

      Mr Black, in the paper cited above, referred to the United States study by Parsonage, Bernat and Helfgott (1992) who conducted a pilot study into the effect of victim submissions upon parole decisions. Mr Black reports this highly instructive study as follows:

The authors studied parole data from 1989 in the state of Pennsylvania and divided the 3,559 parole decisions into two groups: cases in which a victim impact statement was present and cases in which one was not. The authors then randomly selected 100 cases from each group. Various data were collated, including offence variables (such as type, seriousness and plea) and offender variables (such as ethnicity, gender, occupation and education).

The study found that parole was refused in 43 per cent of the victim impact statement cases and seven per cent of the non-statement cases. This contrasted with the board's own decision-making guidelines that suggested parole should have been denied to 10 per cent of the victim impact statement cases and seven per cent of the non-statement cases. In summary, the presence of a victim impact statement had a significant impact on the parole outcome across all types of offence, offender and victim. Apparently, the mere presence of a victim impact statement predisposed the board towards denying parole.

      This study reinforces the need for careful attention to the need for consistency, parity, and giving due, but not undue, weight to victim submissions.

[1] Chris Webster, Chairperson Parole Board of Tasmania: Annual Report of the Parole Board for the Year Ended 30th June 2005, Pp4-5.