What is The Protect that Child Project?
The Protect that Child Project is a Sensible Sentencing Trust initiative. This election year we are asking New Zealanders to use YOUR VOTE to show your support for The Protect that Child Project.
The catalyst for this project is the action the Director of Human Rights Proceedings is taking against the Sensible Sentencing Trust – we are currently being sued by the Director for naming a convicted paedophile on our offender database. This man has multiple convictions for sexual offending against children. It appears he has been able to hide behind the fact he was granted ‘interim’ name suppression’ at the time of his trial. This ‘interim’ name suppression has allowed him to live and work in the community with the public being oblivious to his criminal history and the potential risk to other children. In what we think is a failing of our justice system this offender’s ‘interim’ name suppression continues solely to protect the so called ‘privacy’ of a convicted paedophile. No consideration has been given as to a balancing of the rights of his victims or the public’s right to know who lives amongst us and the risk they pose to our children.
On the 29th July 2014, we settled the issue out of court with the Director having to pay no compensation. Please see the press release and court documents here:
SST believes the protection, safety and wellbeing of our children must be of paramount consideration at all times and this MUST be absolute and entrenched in legislation. This case still has the potential to not only make legal history but it could also change the law and redefine New Zealand’s reputation as a paedophile haven as SST continues to fight with this offenders victims for justice. Currently the judge has reserved his decision.
JUDGEMENT RELEASED TODAY – 14th August 2014
“Chuck it out and start with a blank piece of paper” states Ruth Money, Sensible Sentencing Trust Spokesperson in reference to the current name suppression laws.
In a Reserved Judgment released today, Judge Paul Kellar highlights the nonsensical issues surrounding name suppression. Even if and when a victim successfully has their name unsuppressed, offenders still retain name suppression because technically the legislation does not allow for their details to be unsuppressed.
“Where is the common sense?” asks Ruth Money. “This is not at all what Parliament intended by the law, there are errors in its drafting and should be remedied immediately”.
“In light of this decision we are calling on all political parties to commit to a first principles review of name suppression laws. That is, start with a clean slate and think: If name suppression was to be granted, what would be the few scenarios in which it could be justified. Let’s fix this issue once and for all” pleads Ms Money.
“Name suppression is, in effect, a denial of the truth and here we see the law allowing offenders to effectively piggyback on the rightful application of name suppression that is awarded to survivors of sexual abuse” states Money. “Survivors already get name suppression by law so why do we even need a separate name suppression law at all? The UK doesn’t have it for example. It simply enables reoffending and hides the truth”.
The SST confirmed today that they will be supporting the survivors in this Christchurch case all the way through a Judicial Review of the offenders name suppression as well as any other proceedings that are required to right the law.
“The sooner the Government acts to correct the law back in line with the original intention of parliament (the protection of victims’ rights), the sooner we will see a drop in reoffending because currently offenders are hiding and preying on victims, enabled by name suppression which they are not entitled to”, says Money.
To illustrate how ridiculous the law is, the journey of these victims is:
1. They get name suppression without being asked if they want suppression, SO
2. The offender gets name suppression but only to protect the victims, BUT
3. Then the victims consent to and don’t have name suppression anymore, BUT
4. The offender still has name suppression, SO
5. They get suppression again even though they never wanted suppression in the first place. “You couldn’t make this stuff up!” concludes Ms Money SST Spokesperson
Counsel for the applicants: Nikki Pender 021 515 395
Introducing Ian Tyler – Author: Hope Arises
Recently we have been fortunate enough to meet with Ian Tyler, author of Hope Arises.
We believe Ian is a truly impressive individual with a great amount of knowledge in the area of child protection against sexual abuse. Among multiple career achievements Ian was part of the team instrumental in the implementation of Sarah’s Law in the UK.
Ian has kindly donated his time to the Protect that Child Project. Ian dedicated his career, and now his personal time to the fight against child sexual abuse and the support of the victims and survivors of these heinous crimes. To learn more about Ian and his book Hope Arises you can visit Ians website www.ianrtyler.com.
Stop the Suppression
STOP THE SUPPRESSION JOIN US! The Sensible Sentencing Trust (SST) wants to restore open justice in New Zealand while seeking reform on the current name suppression orders for child-sex-offenders.
- Final name suppression should be available only for the benefit of victims if and while they wish it to be in place.
- Interim name suppression should be granted only in exceptional circumstances.
- Victims should be able to have the name suppression granted to the offender (which is only ever a derivative benefit as it is solely to protect the victim/s) removed at any stage, at no cost to themselves.
- In the interests of openness, transparency and deterrence, the Government should establish an online, publicly available sex-offenders register. We all have a right to protect children and indeed ourselves from sex offenders.
- The public have a right to know who these offenders are to protect themselves and their families from risk.
- Many other jurisdictions run sex offender databases that are publicly accessible.
- In our experience, most sex offenders fear their name being made public as much as the fear of conviction and imprisonment.
- Sex offenders are often able to continue offending due to their identity, and therefore the risk they present to others, being suppressed.
- If the media did not report the relationship of the offender to the victim the offender could be named without identifying the victim.
James Parker had his name suppression lifted and more victims came forward 2012.
A sexual assault victim speaks out after her abuser is granted name suppression against her wish. http://www.odt.co.nz/news/dunedin/293956/what-does-justice-mean
Child Sex offender victims (now adults) fighting to have their names unsuppressed to reveal the name of their abuser to help protect others.
A child rapist stating he wouldn’t want the neighbours to find out his multiple convictions. http://www.stuff.co.nz/national/crime/9600388/I-wouldn-t-want-the-neighbours-to-find-out
- Add burglary (maximum sentence 10 years imprisonment) to the schedule of Three Strike offences. Aggravated burglary (burglary with the use of a weapon) is already a Three Strike offence (maximum 14 years imprisonment).
- SST receives a huge number of requests to assist burglary victims. We simply do not have the resources to assist victims of this invasive crime despite the strong feeling in the community that sentencing of recidivist offenders is not tough enough.
- Burglary is the serious crime more New Zealanders are victims of than any other with over 50,000 ‘reported’ annually. Burglary is understood to be heavily under-reported, in part due to victims without insurance coverage not required to report the offence to Police in order to file a claim. Others are discouraged from reporting due to lack of confidence Police can or will do anything material to respond to the burglary.
- Burglars have the highest rate of recidivism of any offender type (Nadesu, 2008)1 as well as the highest rate of recidivism for the same type of offending (burglary). In essence, burglars continue to reoffend more than any other offender type, and typically offend again as burglars. A significant proportion of burglaries are therefore committed by a relatively small but hard-core group of prolific repeat offenders.
- Deterrence for recidivist burglars is low, due in part to limited consequences for further reoffending and long-standing low resolution rates by Police (just 15% over 2010 – 2012).2
- This is understood to be due, in part, to the difficulty of collecting evidence. Burglaries are notoriously difficult to obtain convictions for. Burglary is therefore a highly ‘representative’ crime indicating much greater offending by the perpetrator.
- Burglars are understood to be routinely paroled at 1/3rd of sentence, or soon after, further undermining the incapacitation and deterrent effect of imprisonment for recidivists.
- The current maximum sentence for burglary is 10 years imprisonment but it is never imposed, even for the worst repeat offenders.
1 Arul Nadesu, Reconviction patterns of released prisoners: A 48-months follow-up analysis, New Zealand Department of Corrections, March 20080
- We are concerned at some of the light sentences being handed down for attacks where the incident was unprovoked, random, gratuitous or for the purpose of recreational violence. Overall, sentencing practice for unprovoked attacks is often too lenient and does not reflect contemporary community concern.
- We have been tracking a number of disturbing cases in both New Zealand and Australia recently in which the victim was ‘blindsided’, attacked violently or gratuitously for no good reason or for the purposes of recreational violence. In some cases the victim has died.
- Current sentencing practice is not addressing such attacks with the level of seriousness we believe it should. While Judges generally consider unprovoked or gratuitous violence an ‘aggravating factor’, it is not mandatory and a high degree of sentencing variance is evident. Often, an offender is only imprisoned when the victim suffers very serious and long-lasting injury, despite the attack being unprovoked, random, gratuitous or for recreational violence.
- We include in this category ‘one-punch manslaughters’ which can and sometimes do have deadly consequences. This issue has recently gained attention in Australia however New Zealand has a similar problem with such attacks from time to time.
- SST’s view is that the essential issue is whether an assault is unprovoked, random, gratuitous or committed for recreational violence, rather than whether it was fuelled by alcohol, drugs or consisted of just one punch. While these other factors are important, they are in our view secondary matters.
- This proposal would strongly denounce such attacks, hold the offenders accountable, and importantly provide justice for the harm done to victims in such cases.
- Mandatory maximum sentences should be imposed for attacks that are unprovoked, random, gratuitous or for the purpose of recreational violence.
- Section 8(c) of the Sentencing Act currently states the judge: “must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate”.
- We suggest that an attack that is unprovoked, random, gratuitous, or for the purpose of recreational violence should be considered within the most serious of cases and accordingly call for the maximum sentence available for the offence committed.
- We propose section 8(c) of the Sentencing Act be amended to specifically state that an offence involving an assault that is unprovoked, random, gratuitous or for the purposes of recreational violence (in other words, for no reason) is considered within the most serious cases and should carry the maximum penalty for the offence committed.
- A definition of what constitutes ‘unprovoked’, ‘random’, ‘gratuitous’ or ‘recreational violence’ may be necessary given this proposal would require the maximum sentence to be handed down in those circumstances.
- This proposal is focused on some of the worst examples of violence, which should be strongly denounced and deterred in law. In essence this proposal simply says that the maximum penalty available for the offence committed should apply to attacks of this nature.
- Thankfully, attacks of this nature are relatively rare. Therefore, this would proposal would apply to a limited number of offenders annually and entail limited additional fiscal cost. However, the justice value for the harm done to the victims would be immense, given the harm done to them is completely unjustified or extreme.
- This proposal has, in part, been inspired by the “one-punch” assaults issue that has caused numerous high-profile deaths and grievous injuries in New Zealand and Australia in the last couple of years. While the various Australian State legislatures have come up with a range of measures including mandatory minimum sentences and linking sentences to being influenced by alcohol or drugs, we consider the prime issue is whether the assault was unprovoked. In most cases, the assault has been not only unprovoked, but random and or for the purposes of recreational violence. Essentially, in some cases an innocent life has literally been ‘snuffed out’, or seriously damaged for no reason. The sentences handed down in most of these cases have been ridiculously lenient given the injury suffered and the unprovoked nature of the attack.
- Violence is never acceptable. But unprovoked, random, gratuitous or recreational violence should be heavily punished and deterred in the strongest possible terms to reflect the public’s revulsion at such senseless violence.
- For instance the following fatal cases in which the victims were attacked, unprovoked:
- Derek Round, retired journalist 2012 ￼￼￼￼
- Phillip Cottrell, Radio New Zealand journalist, 2011
- Numerous other cases can be pointed to where the result was not fatal, but in which the consequences for the victim have been severe and the sentence received by the attacker ridiculously low, such as:
- A Blenheim man, stalked, robbed and beaten in a completely unprovoked attack in the street in 2012. Mr Cain suffered bleeding to the brain, requires full time care and is largely confined to a wheelchair. His life and that of his family has been shattered. His attacker received a sentence of just 2 years and 1 month imprisonment. The Crown successfully appealed but the sentenced raised only to 2 years and 10 months imprisonment. The maximum available for the offence committed was 14 years imprisonment. http://www.stuff.co.nz/marlborough- express/news/9288810/Jail-and-then-home-to-Samoa
- Unnamed woman violently attacked, completely unprovoked in her own home. This offence was also a home invasion and was described by the Crown prosecutor as both ‘frenzied’ and ‘gratuitous’. Despite this attack including a number of grossly aggravating factors, the attacker was sentenced to just 2 years and 4 months imprisonment. The maximum term available for the offences convicted was 14 years imprisonment. http://www.stuff.co.nz/national/crime/8265188/Man-gets-prison-for-frenzied-attack
- This proposal should be supported by a ‘one punch can kill’ education campaign aimed at young men in schools and those arrested by police for any offence, particularly violence. Such a campaign should focus on the seriousness and consequences of assaulting others, including the risks presented by ‘one-punch’ assaults and community revulsion at unprovoked attacks on innocent people.
Degrees of Murder
Introduce a ‘Degrees of Murder’ regime with ‘Life means life’ provision for 1st degree murder.
- Currently the ‘worst’ cases of murder qualify for a minimum non-parole period of just 17 years. 1st degree murder should carry a true life sentence, without parole.
- We suggest a wider range of circumstances should qualify as the worst murders, and be considered 1st degree murder, including:
- Deliberate mutilation or dismemberment of a victim’s body. For instance:
- Sophie Elliott’s body mutilated by Clayton Weatherston in 2008
- Hayden Miles’ body mutilated and dismembered by Gavin Gosnell in 2011
- Unprovoked, random, gratuitous or recreational violence
- Committed in breach of a protection order or where the offender previously threatened to kill that person (premeditation or planning)
- Multiple murder victims should require the offender to serve cumulative non-parole terms to adequately reflect each murder victim’s life.
Not Guilty by Reason of Insanity Verdict
- Replace the Not Guilty By Reason of Insanity (‘NGBRI’) verdict with one of ‘Proven, but insane’.
- ‘Proven, but insane’ verdict would carry the relevant conviction.
- The decision as to secure mental health custody, imprisonment or otherwise would remain unchanged and subject to the presiding Judge’s discretion.
- A minimum term of secure custody for treatment commensurate with the term of imprisonment that would otherwise have been imposed.
- Provide a more detailed means of informing victims of offenders leave entitlements and ‘escorted leave’ events through a more robust Victim Notification Register. In essence, introduce a statutory scheme allowing for the disclosure of information about Mentally Disordered Offenders to their victims or their relatives. Provision should also be made to allow victims to make representations prior to any decision being taken with regard to the patient’s discharge into the community or the conditions to which the patient will be subject to on discharge. (Currently being proposed by the Scottish Parliament).
- Current NGBRI verdict is highly offensive to victims and victims’ families. Victims would accordingly gain, by this proposal, as of right, the protections in relation to offenders under the Victim’s Rights Act.
Benefits of proposed changes include:
- An end to the unnecessary pain for victims of hearing “not guilty” when that means to them (though not lawyers) that the State and their community is denying the basic truth.
- Use of the criminal record mechanism (through the recording of a conviction) to ensure that undisputed harm done to another cannot be plausibly denied, thereby creating risk to other, potentially fresh victims.
- Simple extension of victim’s rights (to information and other rights) to a category of victims currently denied them;
- Clarity over which agency (Corrections of Health) has ultimate control over the release of the perpetrator from custody, at least during the period of the insanity conviction order, irrespective of which agency has actual custody.
- A likely reduction in strategic employment of the insanity defence by offenders expecting to be released early upon medical decision that there is no dangerous mental illness (for example while anti-psychotic drugs are taken). If this eliminates such gaming it could save substantially on court and legal aid time.
- Ordinary sentence-style powers to control the offender, including in mental health facilities, in ways that are not appropriate for ordinary patients [or even special patients who have not done bad harm to others]. These would include:
- Routine powers of search.
- Prevention of damaging drug and alcohol use and other exacerbating behaviours.
- Compulsory medication in lieu of physical restraint.
Max McGowan murdered June McGowan 2013
Geoffrey Tampin Murdered Dean Clark 2012
Lee Aholima stabbed a Katikati shop keeper in 2012
Akshay Chand murdered Christie Marceau 2011
Stephen Whittaker murdered his partner in 2011
Matthew Ahlquist, murdered Colin Moyle in 2007
Kicks and Stomps to a Victims Head
- Amend the definition of reckless murder (s167(b) of the Crimes Act 1961) to include circumstances where a victim is kicked or stomped to the head or neck.
- Amend other sections of the Crimes Act 1961 to ensure that any assault involving a kick or stomp to the head qualifies as a ‘strike’ offence, given such an act is highly culpable, inhumane and should be strongly deterred.
- We have been tracking an increasing volume of serious attacks and homicides that feature the offender kicking or stomping the victim to the head. It is a cowardly, gratuitous and extremely dangerous act that can, and often does result in a victim suffering grievous, life-changing injuries, disabilities and sometimes death.
- Examples of the offender escaping a murder conviction and being found guilty only of manslaughter, despite the offender kicking or stomping the victim while on the ground and unable to defend themselves.
- We think the definition of murder should be widened to make it clear that a kick or stomp delivered to a victim’s head qualifies as murder given such an act is grossly reckless and inhumane.
- In all other cases where a victim has been kicked or stomped to the head, that assault should qualify as a ‘strike’ offence to strongly denounce such grossly reckless and inhumane conduct. Whether and for how long the offender is imprisoned would remain a matter for the sentencing Judge.
- Hawea Vercoe – assaulted and kicked to the head while defenceless on the ground in 2009 by offender Isaiah Tai in an unprovoked attack. Vercoe died. Offender convicted of manslaughter only. http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10649347
- Phillip Cottrell – assaulted and kicked to the head while defenceless on the ground in 2011 by offender Nicho Waipuka in an unprovoked attack. Cottrell died. Offender convicted of manslaughter only. http://www.stuff.co.nz/national/crime/9412686/Cottrells-killer-appeals-sentence
- Offender kicks person to the head. Convicted. Does not qualify as a ‘strike’ offence. http://www.stuff.co.nz/southland-times/news/court/7978072/Teen-lashed-out-at-Australian-tourists
- Offender kicks a child to the head. Convicted. Does not qualify as a ‘strike’ offence. http://www.stuff.co.nz/national/crime/8862299/Jailed-for-beating-12-year-old
Introduce offence of ‘Home Invasion’ to the Crimes Act.
- Home invasions are an extremely serious crime, particularly when a confrontation with occupiers is sought or contemplated by the offenders. This is made worse when multiple offenders are involved and or weapons are carried.
- Home invasions risk serious injury, sexual assault and even death. We have numerous case examples where this has been the case. We also have many examples of home invasions that qualify only as simple burglary, rather than aggravated burglary (currently defined only as burglary with a weapon). For such a serious offence with a high degree of risk and usually intent, we suggest this is a ridiculous state of affairs.
- Residential properties should be considered safe from deliberate invasion and confrontation. The law should strongly deter and denounce home invasion.
- We suggest a new offence of ‘Home Invasion’ be established carrying a maximum sentence of 25 years for the worst cases where a residential property is invaded while occupied and the offenders know or should reasonably conclude that the premises are occupied.
- In numerous similar overseas jurisdictions, a burglary committed while the residential premises are occupied qualifies as an aggravated burglary, with maximum sentences of 20 years, 25 years or ‘Life’. Examples include:
- New South Wales (25 years & very wide definition)
- Victoria (25 years & wider definition than NZ)
- Western Australia (20 years and wider definition than NZ)
- United Kingdom (where the maximum term is ‘Life’, but same definition as NZ)
Victims Commissioner & Rights
- Establish a Victims Commissioner.
- Ensure Victims have an automatic right to a copy of their court file.
- In New Zealand, a victim’s journey through the criminal justice process is confusing and disjointed; they more than often feel isolated and removed from the process.
- Currently, there is no one entity that ensures victims interests are considered, that they are able to access the services available to them nor ensuring that the level of service provided is acceptable. At present, families who are lost within the criminal justice process, or who require assistance to get an acceptable level of service contact the Sensible Sentencing Trust and/or Red Raincoat Trust for assistance.
- The Victim Centre established under the Ministry of Justice in July 2011 is internally focused, with no direct contact with the victims. Their victim’s reference group floundered with centre staff struggling to interact successfully with the victims and it has now been well over a year since any contact has been made.
- In addition, there are few accountability measures in place for criminal justice service delivery providers which, combined with victims understandable inability or lack of energy to demand accountability allows service providers to be protective of their funding streams and the true extent of their service delivery failures are not often known nor recorded. Victims do not have the energy to complain – they have lost enough.
- A Victims’ Commissioner has been established in the UK. http://www.justice.gov.uk/about/vc The proposed NZ Victims Commissioner’s role will take inspiration from the UK structure, include promoting the interests of victims and witnesses, encouraging good practice in their treatment, and regularly reviewing the Code of Practice for Victims which sets out the services victims can expect to receive. A Victims Commissioner will listen to the views of victims and witnesses, understand the criminal justice system from their point of view and try to help improve the services and support available to them.
- For a Victims Commissioner to be effective in New Zealand they will need to be independent of all existing service providers and report directly to the Minister of Justice. A Victims Commissioner will ensure that all ongoing service delivery issues for victims are addressed at a level that will be effective. To truly understand the extent of a victim’s family criminal justice journey a Victim’s Commissioner will regularly engage with victim’s families in New Zealand and they can be consulted on all matters with regards to victims.
- We have worked with a number of victims or their remaining family who have had difficulty accessing their case files or even sentencing notes which typically are given in open court. This is concerning given the presumption of openness and natural justice that should operate. This creates unnecessary stress and suffering to victims or their remaining family.
Helen Taiaroa widow of murder victim discussing victims being ‘put through hoops’
Gil Elliott father of murder victim supporting call for Victims Commissioner
A Victim searching for support regarding name suppression that she didn’t want the offender to be granted http://www.odt.co.nz/news/dunedin/293956/what-does-justice-mean
Red Raincoat Trust speaking about a Victims Commissioner in NZ April 2014
Judith Collins investigating a Victims Commissioner 2013
Abolish Parole; the Judge given sentence should be served entirely with mandatory post-release supervision.
- Provide for up to 10% reduction in sentence/parole as an incentive for good behaviour and embracing opportunities for rehabilitation and addressing drivers of crime factors.
- Rigurous testing and enforcement of parole and post-release conditions.
- Re-offending while on parole should be subject to a strong presumption of recall to serve the remainder of the sentence, and any additional sentence for new offending to be imposed cumulatively.
- Pre-screening of offenders with low prospects of meeting parole eligibility will reduce unnecessary parole hearings and anxiety for victims.
Tighten the guidance in relation to the use of concurrent versus cumulative sentencing under s84 of the Sentencing Act 2002, to ensure that offences committed as separate incidents or involving multiple victims would require cumulative sentences except in exceptional circumstances.
- Each offence committed should carry a measurable cost to the offender, and spree offending should not be subject to significant sentence discounts vis-à-vis offending separated more clearly in time or circumstance.
An explanation of concurrent sentencing under the current Sentencing Act
Example: An offender with two mates go out on three separate nights and burgle three homes, each night taking a TV and electronic equipment to a total value of $1,500 in each burglary. They have committed 9 nine burglaries and stolen goods to a total value of $13,500.
On conviction the offenders are sentenced to 9 month imprisonment on each offence to be served CONCURRENTLY. Concurrently means, each offender will go to prison for just ONE period of nine months. Under the Sentencing Act, because the sentence is less than two years, each offender will automatically be entitled to apply for parole after serving just half (4 1/2 months) of that nine month sentence.
Effectively this is just 4 1/2 months for one burglary and the rest are FREEBIES!
The use of concurrent sentences has made a mockery of the sentencing process and is an insult to the vast number of victims. Concurrent sentencing is being used in this manner to take pressure off prison numbers, and has nothing to do with Justice.
This is not what the citizens of New Zealand expect of our Justice System.
A Colmar Brunton pole asked: “If a person commits three crimes and is sentenced to 1 year in prison for each crime, should their sentence be 3 years or 1 year? Of the 1000 people surveyed, 85.9% believed that the 3 year sentence was correct while just 8.8% supported a concurrent sentence (one year).
Article by: Alan Monk
Sensible Sentencing Trust News Letter (October 2011)
Jury service should be paid at the juror’s regular income rate.
- Jury service is an important public service, but comes at too high a financial cost for many, especially those with children and a mortgage to pay.
- In our experience, many potentially sound jurors exclude themselves largely due to personal financial considerations, thereby reducing the pool of potential jurors.
- A person should be paid 100% of their usual income while serving on a jury, perhaps limited to $100,000 p/a pro-rata.