Balancing public safety and offenders’ rights

Hardly a month seems to go by without an especially violent crime being committed by someone on bail, parole or supervision.

One of the latest victims of such an act is, of course, Aucklander Blessie Gotingco who was allegedly murdered by a man on supervision. Other well-publicised perpetrators have included Akshay Chand (who killed teenager Christie Marceau while on bail), Graeme Burton (who murdered one man and attempted to murder two others while breaching parole), and William Bell (who killed three people and attempted to kill a fourth while under supervision).

Their crimes sent shock waves around the country with many New Zealanders calling for the rules to be tightened up with regard to the release of such offenders.

As a result, significant changes were made to the Bail Act 2000 last year, making it harder for defendants charged with serious offences to get bail. The changes (canvassed in Law News Issue 2, 14 February 2014) marked a fundamental shift in legal principles in New Zealand as they reversed the onus of proof for alleged offenders in bail cases. A person on a murder charge or repeat violence, drugs or sex charges now has to prove why they should be bailed. Previously, the Crown had to show why such people should be locked up.

Justice Minister Judith Collins told Law News the number of defendants committing offences on bail has fallen from 15,754 in 2008 to 10,938 in 2012 – a 30 per cent drop.

“The majority of offences committed on bail are of lower seriousness – less than 30 per cent of cases result in a sentence of imprisonment,” she says. “Where a prison sentence was imposed, it was one year or less in duration in more than 7 per cent of cases”.

Reoffending by those on parole or home detention has also fallen over the last few years. In 2008/09, 24.9 per cent of parolees reoffended, compared to 22.9 per cent in 2012/13. The corresponding figures for home detainees were 10.5 per cent and 8.5 per cent respectively.

Reoffending statistics for those on supervision are not so easy to obtain. Law News submitted an Official Information Act (OIA) request to the Department of Corrections last month seeking a response to the following questions:

1. How many people are currently on supervision and what offences have they committed?

2. How many of these people have reoffended and what offences have they committed with particular regard to violent or sexual offending?

3. How did they manage to reoffend while under supervision?

4. What steps have been taken to prevent a reoccurrence of such offending?

5. What are the different categories of supervision and how are they applied and enforced?

No response to these questions had been received by Law News at the time of going to press, despite repeated requests. We hope to provide the information in a future issue.

On the face of it, the figures relating to reoffending by those on bail, parole or home detention appear to be somewhat reassuring, especially in light of the fact that New Zealand is currently experiencing its lowest crime rate in 35 years.

But other figures, obtained from the Ministry of Justice late last year by The Herald under the OIA, paint a somewhat different picture. Those figures revealed that between 2009 and 2012, some 31 people were killed by offenders out on bail – 11 were murdered, 14 were the victims of manslaughter and six were killed by bailed defendants committing driving offences.

And of further concern were figures obtained earlier this year by the Waikato Times, also under the OIA. They showed that in the last two years, 25,323 people released on bail failed to appear in court, with 1,308 having been on the run for more than five years.

So perhaps it is no wonder that lawyer and former politician, Stephen Franks, has serious misgivings about the nature and level of reoffending by those on bail, parole and supervision.

Mr Franks told Law News that the justice system “only pays lip service to its duty to protect and to act in the interests of ordinary people.” He is especially critical of the way in which parole is applied and administered.

“Parole started as the prerogative of a prison superintendent – they could reward good behaviour by letting people out for the last 10 per cent of their sentence, on the prisoner’s honour not to breach terms or offend. Now it’s automatic – at one third of sentence for most offences – and it makes every sentencing judge a liar to most victims, who do not know how empty sentencing speeches are”.

Mr Franks says he was told by a senior policeman that most significant offences are probably committed by people on parole.

“This is not surprising because over half of released prisoners have been convicted, not just reoffended, within three years of release. Grave harm to many innocent people is entirely predictable from releasing violent offenders as every injury from an offence on parole would be prevented if the sentence was still being served”.

Mr Franks believes that if the Parole Board was liable to prosecution and punishment for not complying with New Zealand’s health and safety standards, the situation would be different.

However, a Professor of Sociology at Canterbury University, Dr Greg Newbold, has no such misgivings about parole.

“Most (parolees) are serving finite sentences and will be released at some stage. In order to incentivise people to take remedial programmes and so on in prison, the Parole Board releases people once they have taken the appropriate programmes and shown motivation not to reoffend, and it monitors them for the rest of their sentences.

“But due to pressure on programmes, most prisoners are not eligible for programmes until they have served at least two thirds of their sentences. So most prisoners seldom get out of jail once they reach their parole dates”.

In fact, Dr Newbold says the average inmate serves 70 per cent of his or her sentence before being released and, if he or she is deemed a risk to the community, can be kept behind bars for the entirety of the sentence.

“In the case of ‘lifers’, they must serve at least ten years for a standard murder, but if certain aggravating circumstances are present, the minimum is 17 years. Judges can also sentence offenders to non-parole periods that are longer than these statutory minimums”.

Dr Newbold also has confidence in the way in which bail is administered.

“Once a person is released on bail they are subject to rigorous conditions and may be recalled immediately to prison if they breach them. Since the murder of Karl Kuchenbecker by life parolee Graeme Burton in 2007, ‘hair trigger’ parole procedures have been installed and parolees can be (and are) recalled for minor breaches of conditions, such as having a cell phone when prohibited. The Parole Board is very risk-averse when it comes to granting parole and issuing permanent recalls”.

Dr Newbold says the “three strikes and you’re out” legislation, which was introduced in 2010, removes the right to parole for all second and third strike cases.

“There are around 1,500 people currently on first strike warnings, five on second strike and none on third strike so far”.

The President of the Criminal Bar Association, Tony Bouchier, blames the news media for focusing “far too much attention” on violent crimes committed by people on bail.

“More balanced and responsible reporting would show that our Bail Act is performing its desired function and that our judges, on the whole, are making very good bail decisions, usually under hugely difficult circumstances.

“There will always be a risk attached to giving anyone bail, but a completely risk-averse bail policy – which seems to be the populist call from politicians and other interest groups – would result in huge injustices being perpetrated on defendants on a daily basis, not to mention severe overcrowding in our prisons.

“The fact is, when you live in communities there will always be perpetrators and victims of crime and no changes to the Bail Act or any other law will ever change that,” says Mr Bouchier. “If it ain’t broke, don’t fix it”.

Mr Bouchier’s sentiments are doubtless shared by most in the judiciary but the families and friends of victims like Blessie Gotingco almost certainly would take a different view. For them, the scales of justice are somewhat askew.

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