Month: December 2014

Mike Yardley & the Sensible Sentencing Trust attack restorative justice

There’s a new tweak to the criminal justice system. Essentially, in every criminal case in the District Court where a guilty plea is entered and there is a victim or victims, the case must be adjourned for an investigation into whether a restorative justice meeting should occur. That’s a meeting between the offender and victim, presided over by a restorative justice coordinator, with the results of the meeting able to be taken into account at sentencing.

Last week, when I had no time to blog, Mike Yardley wrote a column in The Press entitled ‘Restorative justice of little benefit to victims‘. Mr Yardley describes himself as “predominantly focussed on travel media”, but he evidently also does a good line in rehashing press releases from the Sensible Sentencing Trust.

The main thrusts of his column are twofold, one of which I agree with, one of which I don’t. The first is that the new system is going to be hugely expensive and time-consuming. That’s true. In a significant proportion of cases, there’ll be an added one or two court appearances before a Judge. A basic common assault guilty plea (involving an offender with not enough criminal history to raise a Judge’s eyebrows) would ordinarily intimate the guilty plea at a Registrar’s List, before confirming the plea before a Judge. The Judge would then usually hand down a sentence on the day, generally ranging from a good behaviour bond to supervision to community work. An additional step now needs to be added, whereby restorative justice is investigated, and a second additional step may then be required if the victim wants to go ahead with restorative justice.

That’s a time cost, but it’s also a financial cost. Apparently, it costs around $10,000 per day to run a single courtroom. Plus, with legal aid files, lawyers can apply for an additional $120 flat fee for the additional appearances plus actual hearing time at $48 per half hour.

Nonetheless, if restorative justice works – reducing recidivism, and helping victims – then the additional cost may well be worth it. The second thrust of Mr Yardley’s column is of course that it doesn’t work. He writes:

The Sensible Sentencing Trust is pillorying the new regime, arguing that restorative justice should only apply in situations where it’s possible for the victim to have restored to them whatever they may have lost as a result of an offence. For example, the theft of a bike or damage to their letterbox.

But serious violence, really?

Yes, really.

I remember a case involving a young man who pleaded guilty to kicking another man in the head at a party, while the victim was already unconscious. A restorative justice meeting was held, and my client and his parents were able to meet with the victim, his parents and his girlfriend. From the transcript of the meeting, it was obvious that hearing a heartfelt apology from my client meant an awful lot to the victim and his family. And the victim was moved to tears when he was presented with a cheque for the several thousand dollars that my client had managed to save up, to help make up for the victim’s lost wages and other expenses.

It was a case involving serious violence, and restorative justice worked for both the victim and the offender. I would be extremely surprised to hear that my client has ever reappeared before the courts.

Nonetheless, the SST’s and Mr Yardley’s main issue is that a good restorative justice meeting might result in lighter sentences for offenders:

Sensible Sentencing’s biggest beef is that these restorative justice conferences are actually offender-driven. They will be taken into consideration as part of sentencing, potentially resulting in brownie-points and lighter penalties.

My response is, “So what?” Our Sentencing Act already required the court to take into account the views of victims. The outcome of a restorative justice conference is essentially an extension of a Victim Advisor’s report. The SST and Mr Yardley are essentially arguing that victim’s voices should be heard, but only if the victims are denouncing those who offended against them. It’s a somewhat hypocritical stance.

When it comes down to it, the SST simply opposes pre-sentence restorative justice conferences full stop. Such conferences might assist an offender at sentence; they must, therefore, be A Bad Thing.

Mr Yardley fancies the New South Wales model, where restorative justice can only take place post-sentence. But where’s the incentive for an offender to engage in the process post-sentence? They could be forced, which seems implicitly acknowledged by Mr Yardley when he notes that in NSW restorative justice conferences “often [occur] in conjunction with rehabilitation programmes at the end of a sentence”. However, that seems like a recipe for over-burdening an already over-stretched probation service.

At the end of the day, the stats I’ve seen confirm that restorative justice helps reduce recidivism. Young burglars who sit down across a table from the people they stole from are less likely to burgle again. Those who commit drunken assaults in town are less likely to engage in that behaviour in future if they see with their own eyes the effect of their offending on a victim. Victims become real people, not just names on a Summary of Facts.

To my mind, the old system of voluntary opt-in restorative justice worked well, and ways of opening up the system further should certainly be looked. Whether the benefits of the new “opt-out” regime outweigh the costs remains to be seen. However, the knee-jerk antipathy shown by the SST and Mr Yardley to the very concept of pre-sentence restorative justice seems rather foolish.

The beginning of the end for Mike Sabin?

The Sunday Star Times and NZ Herald have been carrying stories about allegations that National MP Mike Sabin is being investigated for assault. At present, the stories carry no detail, making it impossible to tell whether the complaints are historic or whether it’s a family violence complaint.

Nonetheless, in politics, nothing is secret. According to Cameron Slater, the allegations have been doing the rounds for about a month. He describes the allegations as “almost too horrible for words” and predicts a by-election in Sabin’s Northland electorate. (Of course, any allegation made by Slater should perhaps come with questions regarding veracity and whether he’s being paid to assassinate Sabin’s character. If Sabin does end up resigning, it might pay to look closely at whichever candidate Slater lends his support to…)

In the SST and over at The Standard, questions are being asked about when John Key knew about the allegations. The insinuation appears to be that if the allegations where known to Key prior to the election, he should have told the electorate. I’m in two minds about that, largely because we still have no detail about the allegations.

On the one hand, an allegation is just that, and we’re all entitled to the presumption of innocence. The matter is in the hands of Police, who will make a call as to whether there is sufficient evidence to mount a prosecution. If Sabin is charged, there’ll then be enormous pressure for him to resign, which is only to be expected. If he’s convicted, he’ll definitely be toast.

On the other hand, if the allegations end up being especially serious, well… It can certainly be argued that the public have a right to know about certain allegations when they’re choosing their elected representative for the next three years.

The big issue for me at this stage is not whether Key knew about the allegations before the election. Instead, it’s whether he knew about the allegations before Sabin was appointed chair of the Law and Order select committee. It would seem wholly inappropriate for someone under criminal investigation to be made chair. He should step down from the role, and he should step down now.

Internet Mana : the divorce

So the Internet Mana Party is no more. As 3News reports, a letter has been sent to the Electoral Commission to confirm that the relationship has been terminated.

It’s hardly surprising. Given Kim Dotcom’s post-election acceptance that he’d poisoned the public mood against Internet Mana, it was only a matter of time before the Mana Movement and the Internet Party parted ways.

Admittedly, just before I headed to Melbourne last weekend, disappearing off the social media grid and ignoring the existence of news from the homeland, there were strange reports of the Internet Mana Party intending to soldier on through in unity to 2017, of Dotcom intending to continue his role as Internet Party puppet master, and of Dotcom preparing to export his failed Internet Party experiment to the United States.

Nonetheless, Dotcom had previously been bewailing his supposed technical insolvency. Given that the lure of the Internet Party for Hone Harawira had essentially been Dotcom’s money and public profile, a Dotcom who is broke and poisonously unpopular is a Dotcom with nothing of value to offer Mana.

In the wash-up, Dotcom was a cancer to everything he touched, politically. His Moment of Truth, rather than finishing John Key, almost resulted in National governing alone.

Laila Harre went from being a principled doyen of the Left to just another hypocritical sellout. And her theft of the Greens’ intellectual copyright as she left to follow the money means that no other party will be touching her for the foreseeable future.

In Waiariki, Mana’s Annette Sykes was supposed to take out Te Ururoa Flavell, finishing the Maori Party for good. She came third. Meanwhile, Flavell romped home, bringing with him Marama Fox.

And of course Hone Harawira lost his seat of Te Tai Tokerau. With no Parliamentary budget, no Dotcom gravy train, and a much-reduced public platform to keep him in the headlines, Harawira will struggle to re-take his old seat. If Kelvin Davis is smart, he’ll be spending the next three years touring every square metre of his electorate (with his travel funded by Parliament, of course), ensuring that Harawira doesn’t get a look-in in 2017.

Harawira staked everything on Dotcom, and the gamble proved disastrous. With the Internet Mana split now confirmed, the two component parties can now fade off into political oblivion.

Labour supports 24 hr surveillance : the unenviable job of being in opposition

This week, the Foreign Affairs, Defence and Trade Committee reported back on the Countering Terrorist Fighters Legislation Bill. The Government had been seeking, among other things, the ability of the SIS to undertake 48 hour warrantless surveillance, and for the Government to revoke passports for three years.

Quite why these measures were required were never addressed. After all, our terror threat level may have raised, but it remains on ‘low’. MPs such as Jamie-Lee Ross muttered darkly of tales of terror disclosed by the SIS: if we meek citizens only knew what the MPs knew, we would quake in our boots and immediately provide ringing endorsements of the Government’s planned changes. Of course, we mere citizens weren’t allowed to know. The SIS’s briefing was conducted in secret, open only to MPs, on the grounds of protecting national security.

The SIS’s briefing may have persuaded Mr Ross, but the opposition appeared rather less convinced. Labour MPs such as leader Andrew Little, Phil Goff and David Shearer held the line that the Government had failed to make a case for the increased powers, and one doesn’t have to be a genius to know that the Greens were never going to be convinced.

Nonetheless, the Committee has reported back, and Labour now backs warrantless surveillance, albeit for a maximum of 24 hours and only in relation to terrorist activity (as opposed to the SIS’s wider activities). In addition to that concession, the Government has also agreed to stricter oversight and more frequent reporting, in relation to the use of warrantless surveillance, and those individuals who have their passport revoked will have the ability to appeal that decision and apply for their passport back.

To my mind, 24 hours less warrantless surveillance isn’t a huge concession. Warrantless surveillance is still warrantless surveillance, and the Government has still failed to make the case as to why it’s necessary. After all, in emergency situations involving terrorism, s10 of the International Terrorism (Emergency Powers) Act 1987 provides the ability for police to intercept private communications and interfere with the operation of any part of the telecommunications system in the area in which the emergency is occurring. For powers above and beyond that, which may heavily impinge on the rights of certain individuals, a proper case should be made as to why those powers are necessary.

By rights, I should be lambasting Labour for abandoning its principled approach and supporting warrantless surveillance. On the other hand, however, the Government had the numbers to pass the Bill in its initial form. Labour could have voted against it and achieved nothing. The Government wanted a vaguely bipartisan outcome, meaning that small concessions were achieved. That’s the unenviable job of being in opposition: Do you stick to your guns, opposing to the death for no reward, or do you give support on some issues, taking what gains you can in order to make the end legislation a slightly better beast?

Labour will have made the call that few New Zealanders really care about the issues of warrantless surveillance or revocation of passports. Nothing to hide, nothing to fear, etc. Labour gets a positive headline or two for at least forcing a few changes; National gets its positive headlines for being bipartisan.

Everyone wins, except our civil rights.

And, as No Right Turn points out, this piece of legislation is just the beginning, with John Key already stating that the Government will look to further toughen security laws after a review next year. With Labour now on record supporting the thin end of the wedge, what will our major opposition party agree to next time round?

The folly of name suppression orders

“The law’s an ass” declared a “former National MP” after appearing in Waitakere District Court this morning, having been charged with breaching a name suppression order. The alleged breach relates to the naming on Twitter of a “well-known New Zealander” who was convicted of indecent assault.

The words “former National MP” are the description used by this report from the NZME News Service, used by the NZ Herald online. The article states that:

NZME News Service has chosen not to name the ex-MP because to do so would make the organisation complicit in helping to identify the well-known New Zealander.

That’s because the offence of breaching a suppression order could well be construed in quite ridiculously wide terms. The ex-MP’s tweet is still up on his Twitter page, meaning that naming the ex-MP would essentially direct the public to the information that allegedly breaches the suppression order. A Court may well consider the naming of the MP to therefore be “other information in breach of a suppression order” – an offence against s.211(2) of the Criminal Procedure Act 2011.

Section 211(2) is a strict liability offence. If you publish anything in breach of a suppression order, it doesn’t matter what your intent was: you’re guilty. However, the concept of “other information in breach of a suppression order” is a tricky one, given our Bill of Rights-mandated freedom of speech. At what point is “other information” allowed to be published, despite it leading people to the initial information that allegedly breached the order?

NZME News Service and the NZ Herald are evidently worried that naming the “former National MP” could result in legal consequences for them. But what about even providing the description “former National MP”? It’s not difficult to work out how many former National MPs are on Twitter, and a quick search through the obvious targets’ Twitter feeds would easily provide the identity of the MP and therefore the suppressed name of the criminal.

On the other hand, another major news organisation has published an article this morning naming the ex-MP. Now if that’s a breach, then if I were to name the news organisation or link to their article, I could conceivably be in breach of the suppression order myself. Of course, we don’t have too many major news organisations here in New Zealand, so by pointing readers to the existence of an article naming the former MP, could I be said to have breached the order regardless?

The inanity of the situation is perhaps best summed up by the person who tweeted this to the ex-MP:

“Best of luck @[name of ex-MP], in that thing we can’t talk about because of the thing we can’t talk about you talking about, today.”

You’d have to hope that if our news organisations were prosecuted for breaches, based on their articles reporting on the ex-MPs Court case, that our courts would read s.211 in such a way as to grant a wide scope for freedom of speech.