escalating violence in our community Become a member of the Sensible Sentencing Trust

Mouseover links for full page descriptions

Archived Press Releases 2007 8th August 2007

The Trust's submission on the Criminal Proceeds Recovery Bill

(8th August 2007)

Stephen Franks’ submission for the Trust this morning gives the lie to the claim that the Trust always wants to “lock-em-up or hang-em-high”. The Trust will tell the Select Committee that the Bill should not proceed. It is dangerous to important liberties and the good parts are outweighed by the bad parts.

Franks says "The law will fail if it is not respected and trusted by law-abiding people. They will not support rigorous, certain, law if they fear that it hurts innocent targets."

"We do not want the criminal law to be discredited by abuses of power, by dubious findings on dodgy evidence, even if the targets are highly suspect."

"The state must continue to prove wrongdoing in front of independent judges applying due process. Only on conviction should people lose their liberty and property. The standard of proof must remain beyond reasonable doubt."

"We support much wider rules than now to ensure that criminals can not spirit away assets that should be available to pay penalties and reparations."

"But those powers should be in support of the eventual court ordered punishments and reparations, not instead of them."

"Sensible Sentencing is suspicious that the Bill is designed, like so many other criminal law changes of the past few years, to look tough but change nothing, to ensure the maximum of publicity for the minimum of expenditure."

"Bizarrely the Bill would reduce the powers of the courts to order forfeiture on conviction in the courts according to ordinary standards of proof, even as it gives new powers to seize property of people who are acquitted or never charged."

If there was an intention to really deter crime and help victims it would:

• start with the offenders owing the vast pool of uncollected fines and reparations;
• reverse the provisions that direct the courts to consider hardship to the offenders when ordering reparation, ahead of hardship to the victim.”

Things Sensible Sentencing likes:

• the anti-avoidance powers in cl 173 and in the proposed new sections 142A to 142Q of the Sentencing Act (though not to the extent those provisions incorporate the departures from principle deplored above);
• waiver of the rule against self incrimination in cl 36. It is high time there was a comprehensive review of the reasons for the privilege and its exceptions.
• what appears to be exclusion of the so-called right to silence in cl 171.This “right” turns trials into a lawyers game. It is time to allow the prosecutor to highlight the failure of an accused to give evidence where the defence has put up a fanciful story but does not let the accused face cross examination.

Things that puzzle us:

• the retrospectivity of cl 245. Our efforts to get truth in sentencing, for example, were met by flat rejection of retrospectivity, even though parole is only an executive privilege. We want life sentences to mean life sentences. The government refused, saying that making sentences truthful would be a retrospective law change.
• Now the Bill will punish for things that are not even illegal at the moment, on a standard that departs from all previous views on the evidence needed for safe conviction.
• It pretends that confiscation does not matter if it is called “civil. Either the justice establishment’s rejection of our arguments for the last 5 years have been cynical and spurious, or this Bill is unprincipled.
• It beggars belief that only 5 years ago s 24 of the Sentencing Act was passed. It forces the Crown, after conviction beyond reasonable doubt, to then go through another time wasting mini-trial of facts relevant to sentencing “beyond reasonable doubt. The government thought the extra legal aid costs and increase in hurt to victims were irrelevant. Yet now they want potentially enormous fines by way of confiscation without proof of crime, and where the onus of proof falls on the target to disprove the Confiscation Director’s allegations.
• Why was a shift in onus so bad then, but not now? If this was a principled change it would start with s 24 of the Sentencing Act. Proof of sentencing factors on the balance of probabilities is fair enough once the offender has been found guilty.

Things the Bill should be doing:

• Fix the Sentencing Act . The existing provisions meant to require compensation to victims often do not work. They can outrage victims. Simple changes could make them work much better. For example:
  1. The Bill should remove the following prohibition on the judge in s 33 of the Sentencing Act
     (7)The court must not impose as part of a sentence of reparation an obligation on the offender to perform any form of work or service for the person who suffered the harm, loss, or damage.
  2. The Court should be encouraged to order reparation first and think about payment second, so provisions such as the following from s 36 should be removed;
     (2)The court may not impose a condition that an amount to be paid in 1 lump sum must be paid immediately unless the court is satisfied that the offender has sufficient means to pay it immediately.
  3. The Court should be directed to weigh the hardship of the victim and his or her family above any hardship to the offender and his or her family.
  4. Courts which remit outstanding fines and reparations should be forced to impose prison terms in lieu that make non-payment a bad bargain.
• Address common crime. Serious criminals are recidivists. Deterrence works least on them. It is more important to send a practical message to new entrant criminals. They should know they will not profit from crime. Accordingly:
  1. Apply the principle generally. The crimes that qualify for confiscation after conviction should start at the lowest possible level.
  2. Protect self defence. Offences against people in rural communities (rustling, equipment thefts, home invasions and armed trespassing (poaching), robberies of dairy owners, vandalism, arson, and car theft should trigger confiscatory penalties. They should be paid to the victims, to enhance the incentives for ordinary citizens to report such crimes.
  3. Self help on trespassers vehicles People who discover crime should be given power to detain “instruments” like vehicles, pending trial. This should supplement the citizens arrest rights still in the Crimes Act (despite illegal Police charging of people who use them). The ability to seize intruders’ or vandals’ vehicles directly instead of always relying on an overstretched Police, may reinstate genuine power in the scared communities, and deflate the arrogance of persistent offenders.
  4. Family to pay There should be consideration of family confiscations where the offenders are uncontrolled minors. If any “unconvicted” class should be targeted, bad parents should be in it.

This Bill targets only offenders who could face “5 years or more prison” if convicted. Let it apply to all, but only after conviction beyond reasonable doubt in a fair trial.

Regards,

Stephen Franks
Justice Spokesman,
Sensible Sentencing Trust
Mobile : 027 4921983