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This is my personal submission in relation to the inquiry into victim's rights. I request to be heard in support of this submission. Please consider hearing our submissions in Hamilton.

Introduction

In October 2000 our son Shannon was badly burned in a house fire that was deliberately lit. Shannon's best friend was also admitted to hospital as a result of the fire. Both were placed in induced coma and Shannon's friend died as a result of medication given him for his injuries. The arsonist was not caught at that time. On 8 February 2004 our son was murdered in Christchurch by two young men who did not know him. The murder was callous and brutal.

In February 2005 television New Zealand broadcast a documentary featuring our son that we tried for one year to have stopped. We felt the documentary murdered the memory of Shannon.

In July 2005 the arsonist of the 2000 fire handed himself into the police and was convicted of Arson. We were not told of this until February 8 2006. We believe Shannon's friend's family was not told until after this time also.

The following submissions are a result of our journey as victims of both the above offences and our treatment as victims under the Victim's Rights Act 2002 and lack of privacy protection.

We hope that parliament will amend legislation in such a way as to prevent our experience being repeated upon victims in the future.

The Arson

In October 2000 an arsonist set a boarding house on fire where our son, Shannon, was living. Shannon suffered horrific burn injuries as a consequence of the fire. He was placed in a drug induced coma for a week then remained in hospital for a further period of time. Our lives were turned upside down. We flew from Hamilton to Christchurch immediately and stayed with our son for two weeks until he was discharged from hospital.

His life was changed forever and so was ours as a consequence of the arson which took place. Five years later the arsonist handed himself into police. The police for some unknown reason waited until the trial and sentencing and appeal period were over before telling us the offender handed himself in.

The crown prosecutor never communicated with us at all.

The police told us we were not victims under the words of the Victim Rights Act 2002.

Consequently they did not see any need to obtain Victim lmpact Statements from us on the effects of the offence or even tell us the perpetrator was being tried. As a consequence there were no Victim lmpact Statements submitted for the purpose of sentencing as was noted by the judge.

This was even though our son had suffered horrific injuries, which resulted in ongoing suffering for the remaining years of his life and indirectly led to his death and his best friend died in hospital within two weeks of the fire. Both families were grossly affected by the fire. Neither family was advised of the proceedings or given the opportunity to submit victim impact statements.

Where the offence is one of violence against another human being it is entirely foreseeable that the effect of the violence will cause suffering and trauma to the direct victim's loved ones. The indirect victims should be provided with an opportunity to submit to the court the effect the offence has had on them if they so wish. The Victim's Rights Act failed us in this instance partly because section 20 is at the prosecutor's discretion.

S20

1. The prosecutor may, if he or she considers it appropriate to do so,decide to treat as a victim ............... a person--
   (a) who was disadvantaged by an offence

Recommendation for the committee to consider

A Definition of victim under the act requires broadening in cases where the offence is one of physical violence against another human being.

B Needs to be some extended provision for others affected by violent crime to be contacted when a person is to be tried for the crime.

C Victims ought to be contacted and allowed to submit Victim Impact Statement and to be heard at Parole hearings particularly where the direct victim is deceased or is unable to provide a victim impact statement when to the offender being prosecuted for the crime.

THIS SITUATION DOES NOT APPEAR TO BE PROVIDED FOR IN THE ACT or if it is then the Crown Prosecution does not appear to be implementing it through lack of understanding or some other reason.

C There needs to be some form of accountability'under'the Act for as it stands any failures by the Crown or Police are left as further burdens to victims which they have to live with for the rest of their lives with no redress.

D Also the definition of victim in the act needs broadening and clarifying if the police and prosecutors could not determine or consider that we were victims in the case of arson that involved our since deceased son.

E There needs to be a duty (THIS DUTY MUST NOT BE DISCRETIONARY) that Victims are contacted where possible when an offender has been caught and is facing a trial.

We found the Judges to be more consistent than the prosecution. A further safety net to ensure Victims get a say would be to require that the Judge in charge of the sentencing check that the prosecution has performed their duty in repect of obtaining Victim impact statements for any violent offence causing injury or death.

We were not given the opportunity to tell the court the impact the crime had on our lives or that of our sons.

At the time of sentencing the Judge noted in his sentencing notes that there was no victim impact statement. If he had a duty under the Victim's Rights Act to send prosecutors back to complete their duty as officers of the court the effects of the fire on both Shannon's and our lives would have been heard.

Recommendation For The Committee To Consider

Sentencing should not go ahead without either a victim impacr statement being submitted by a victim or a statement by the prosecutor that the victim has been fully advised of their rights in regard to submitting a victim impact statement and has chosen not too. In the event that the victim impact statement is not made available Judge is to satisfy themselves that the prosecutor has taken all reasonable measures to obtain a victim impact statement. This duty should be part of the victims rights act.

The Murder

Two days before the murderers killed our son Shannon, a gang of young men (including one of the murderers) visited the place Shannon was staying and hurled large rocks at him and threw large pieces of wood at him.

These same youths returned later with weapons bats and knives to harm Shannon but he was not there.

At 2am the following morning two of the youths returned to where Shannon was sleeping and over a period of approximately 3 hours beat him to death. The police later elected not to charge the people who not involved in actual murder although they were part of the larger picture that culminated in the prolonged and brutal murder of our son. The reason given was that these people may be valuable witnesses and they had not done much they could be charged with.

The Deposition Hearinq

At the depositions hearing these three young men did nothing but mock and ridicule the court process and withheld all their knowledge of the events surrounding the murder. It was sickening to watch knowing these 3 who had been involved in the harassment of our son prior to his murder and had been driven by the murder scene by the murders the following day while they were told what had been done to our son.

The actions made an absolutely mockery of the court process and the Justice of the Peace presiding over the hearing could do nothing to extract the truth out of these young men. They should have been charged at least with contempt and we felt extremely angry at their involvement with no repercussions or consequences to them.

Recently we have heard of a murder case where the crown prosecution reduced a murder charge to manslaughter in return for the promise of a guilty plea. The offender then pleaded not guilty and the court would not allow the charge to be changed back from manslaughter to murder. The parents of the murder victim would not have agreed to the trade in the first place if they had the authority to block it.

Deals such as these should not be made without the victims consent. In New South Wales Victims rights act there is a section dedicated to ensuring that victims are consulted and have clear power of veto in the event of a proposed deal being struck between the offender and the Crown.

IT is essential that victims have a say as to any bargains made with the police over sentencing. Victims need to be included. There is nothing worse than the police or prosecution doing a deal with an offender to save the state a bit of money while the perpetrator gets a sentence that is too lenient for the crime. The victim simply feels that they have been made a victim again. First by the lack of control in the initial offence and then again where there is no control by the victim when the prosecution does a deal with the offender.

Recommendation for the committee to consider

That there is not a deal done with an offender without consultation and agreement from the victim of the offence and that it is made a mandatory and enforceable requirement under the VICTIMS RIGHTS ACT.

Court room lavout and protocol

When we were in court at the depositions hearing the killers of our son were within one metre of us joking and laughing with their family. They were unsecured and unguarded. We were actually in a large court room compared to the room originally scheduled.

They were allowed to converse with their families and pass goods between each other within a metre of our family when we had just watched a video confession of both the murderers telling how they had brutally murdered our son returning to beat him up to 5 different occasions over a 3 hour period.

Victims should not have to be in such close proximity to the murderers. It puts victims through further emotional distress having these people so close. The murderers were so clearly responsible by their own confessions yet were not handcuffed or secured or even with a court orderly though it was likely they would get a long custodial sentence. Thev were treated with excessive dignity and civilitv at the expense of the diqnitv qiven to the family of the murder victim.

Recommendation for the committee to consider

There needs to be a review of court proceedings in regard to the adequacy of the court room layout and the separation of the offenders from the victims and the public

The Trial

At the trial we felt "left out" of the process. The prosecution counsel did not initate any communication with us until the morning of the sentencing which was 9 months after our son had been murdered.

They knew nothing of Shannon's story nor did they talk to us about him. The lawyers for both defence and prosecution (except for one) treated Shannon without dignity and little respect for us his family. They often referred to Shannon as the "homeless duden - his name was Shannon McComb, and the court room was filled with photos (copies for Judge, lawyers, Jury and police) of our dead son showing his bruises and knife wounds and head injuries.

The defence lawyers who were directly in front of us would often hold up the photos to look at them. They did not seem to understand that what they did and said about Shannon they did to us.

The prison guard who was sitting with the murderers would sometimes laugh and joke with them at times inappropriate times and we complained when it was at the showing of the body photos.

Recommendation for the committee to consider

Prison guards who are guarding violent offenders In a room where there are victims of the offence or offenders should receive training in acceptable behavior in the courtroom.

The Court Clerk

While the trial was in progress there were many sections of giving of evidence about what was done to our son that were painful to listen to.

Our family and in particular Shannon's mother would make involuntary groans as you would expect from any normal human being. The Judge, Counsel and Jury took no apparent notice and would not expect any less emotional response from any human.

However the court Clerk continually glared at Shannon's mother and finally when she had to leave the court room when it was too much the Court Clerk told the police to move her away from outside the court room. The police had the good grace to ignore him.

Some training of court Clerk on how to act in a respectful and sensitive manner on occasions would be helpful.

A Safe Room.

During the trial the Court Victim Adviser arranged for an unused disputes tribunal chamber to be made available for us while the court was in recess. This was a good place to go when not in the court room.

To have a specific room available for Victims who are going to court particularly when a trial is over many days would be a welcome improvement for victims.

The Sentencinq and Victim lmpact Statements.

Leading up to the sentencing was the preparation and arguing over our Victim Impact Statements.

We found the crown and the police difficult to get past as they tried to block our attempts at placing the effect of the murder of our son before the court to be considered in sentencing. Not only that the crown had merely asked for the minimum under the sentencing act given the gravity of horrific nature of our sons murder.

Also the prosecutors decision as to what sentence they asked for was not told to our family who had lost their son. The police were not told either. It was entirely impersonal and we were left completely out of the entire process. Initially police told us that Christchurch Court does not accept Victim Impact Statements (VIS).

We responded with the Victim Rights Act and did not believe that only Christchurch Court did not accept VIS,s.

Next we were told that Christchurch Court does accept VIS's but that they should be kept short (about a page was suggested) as the judge does not have much time to read them.

Then we were told that the VIS was simply a written document and we could not present it in person

Then we were told that it could be presented in person but that we could not submit any photo of our son as it might be prejudicial to the murderers.

This was not the defence lawyers but the police and the prosecution counsel trying to restrict our VIS's.

My wife had a 30 second recording of Shannon's voice leaving her a mothers day message which was all we have left of Shannon other than memories. She wished to play this recording as part of her Victim lmpact Statement and the Police and Prosecution again said that it could not be submitted.

Finally an MP sought an interpretation of what was allowed in a VIS and determined that anything could be submitted to the Judge in advance for a ruling on whether it would be admitted into the court.

The Crown Counsel was asked to submit the VIS to the trial judge who accepted them unaltered.

Surely the prosecutors knew that this was the correct procedure.

The judge had no problem with admitting the photo or voice recording and the court registrar had no problem setting up to play it.

Our experience is that many people are not equipped to advise victims on what is allowable for Victim lmpact Statements. We had advice from multiple policemen, victim support persons, court victim advisors and indirect advice from the prosecution counsel. It was often inconsistent and incorrect. And rather than advocating for us as victims the police and prosecution often tried to block our rights.

Also the Crown Prosecutors seem to consider their obligations under the act a low priority and in our experience were not conversant with what is allowed to be submitted and what is not. They also treated our requests as if it is low priority part of their job.. We could not understand that as we believed it was part of the prosecution case as to sentencing to ensure that through Victim lmpact Statements the full impact of the offence is made available to the judge whose duty it is to consider in sentencing.

Recommendation for the committee to consider

That the act clearly defines what may go into Victim lmpact Statements and the ability to submit statement to Judge in advance where there is doubt regarding admissibility of statement, there be a trained victim impact statement Adviser to convey this information to Victims and Families of Victims in advance of their preparation of Victim lmpact Statement.

There needs to be a stronger obligation on the prosecution to consult with the victims.
Victims need to have somebody knowledgeable advocate for them.

The Appeal

Next the murderers appealed their sentence to the Court of appeal. Again we had trouble having our say with regard to sentencing, relayed to the Judges.

The two defence counsels had as long as they liked to further the cause of the murderers in an attempt to have their sentences reduced. They presented their mitigation arguments with a passion and tried to sway the Appeal Court Judges in favour of reducing the sentence.

We believed the crown had already asked for too light a sentence where the two men who murdered our son had gone back through the night on 4 or 5 occasions between 2am and 5am each time beating our son with pieces of wood going away for a cigarette before returning to beat him again. Then on the final return they stoved in the back of his skull and stabbed him with a knife. The minimum sentence in the sentencing act s104 for this kind of murder is 17 years non parole. These murderers did not plead guilty despite the overwhelming evidence against them.

They should have received more than the minimum provided for under the act. I put this to the Crown Law Office and also suggested they consider revisiting the sentence at the appeal as they had the opportunity to do so at the appeal hearing which they had to attend anyway.

They rejected our submission without reason other than to say that the justice system is weighted in favour of the offender.

The crown prosecutor at appeal had started in that capacity one to two weeks before the appeal hearing. What was highly distressing and disconcerting at the appeal was the fact that the two defence lawyers had been present throughout the case one from the deposition hearing through to the appeal and one from the trial through to the appeal.

They were both highly familiar with every aspect of the case.

The Crown prosecutor had started with the crown law office approximately one week.earlier. He was alone at the appeal and was quite out of his depth in regard to the facts of the case. When the Judges asked questions of the prosecution the lack of familiarity was clear. As a result the defence counsel were able to bend the explanations in favour of the killers.

The defence counsel introduced arguments at the appeal that were at odds with the evidence at the trial. These were uncontested by the prosecution counsel who had not been present at any of the previous hearings over the preceding year and could not have possibly known the veracity or otherwise of them.

There should be a requirement that there is a prosecutor from the original trial present at the appeal so that a continuous point of view from the victims and prosecution side is maintained. It was clear to me that the Judges could easily have made a wrong decision if they had based their decisions entirely upon what was presented to them by the defence and prosecution counsel. It was fortunate that the trial judge's sentencing notes were so thorough.

As the Defence lawyers were to have some hours of Oral submissions presented to the Appeal judges in argument to reduce the murderers sentences we also wished to be heard as to the impact of the crime on our lives as the family of the murder victim.

Although the Judges had access to our previously presented Victim Impact Statements they do not have the same impact as a real time oral submission does.

We asked the police and Prosecution counsel if we could make a submission to the CA judges and they said they did not know but would find out. The Prosecution Counsel told us there was no provision in the VICTIM RIGHTS Act for further submissions by the victims family to the Court of Appeal judges to balance the further submissions by the defence counsel.

However the Court Victims adviser approached the Registrar who approached the Judges who said they were prepared to receive a letter from the victims family in regard to the appeal against sentence.

As the Victim's rights act is entirely silent in this area it is unlikely that many victims or families of victims know that this possibility exists.

There should be provision in the VRA for victims or families of victims to make a submission to any appellate body in the event of an appeal against sentence.

Recommendation for the committee to consider

There needs to provision in the Victim Rights Act for a Victim's Right to submit a further Victim Impact Statement directly to Court of appeal or the Supreme Court Judges in the event of an appeal against sentence. Needs to say what can be presented and if there is any question about what is admissible it should be made clear that it can be placed before the judge for a decision

1. ldentifvinq services available to victims

Costs
Government should pay for victims costs and collect back off offenders. Means you are not actually getting costs from the offender but they will repay their debt to society.

The services available to victims needs improvement in the area of getting good advice to the victims.

When our son was murdered our first concern was to get his body home from Christchurch. We were charged for a funeral director in Christchurch who we had no control over then again by a funeral director in Hamilton. The maximum amount of financial support for situations such as ours was . . inadequate.

Our son was violentlv murdered and the cost of a funeral director in Christchurch, the cost of transporting our son's body to Hamilton and the cost of another funeral director in Hamilton were not able to be met by costs available to victims.

We of course did not mind paying for the funeral of our son but there is something unprincipled about a situation where people intentionally and knowingly kill someone in your family and they are having their court costs and living expenses being met by the state (i.e. us) while we are left to pay for the resulting damage on top of the life sentence of emotional loss brought about by the loss of a member of our family.

Try to imagine yourself in that position.
Financial support to victims needs to be reviewed.

Prosecution communication with Victims

The Victims only get one chance at each stage of the trial process. In particular the presentation of their victim impact statements.

Crown Prosecution counsel did not talk to us until after the trial is over. I do not know if this is normal but we had valuable insights regarding our Son's injuries following the fire which the prosecution could have used in evidence in support of their case. The victim's rights act should have some provision for mandatory communication between the crown counsel and victims where there are family members of a murder victim if the victims so choose.

The crown counsel should communicate directly with the victims family as to the procedure and the proposed sentence and the reasons. The people most affected by the sentence aside from the offender are the victims.

Therefore the victims should be consulted from the prosecution side where the offender is consulted by the defence side.

The victims have to live with the loss caused by the offenders for the rest of their lives and are likely to go to parol hearings so they are drastically affected by the sentence which is handed out

There is only one chance at all stages of the trial process.

The Victims Rights Act should give Victims access to the prosecutors as of right. The prosecutors should have to have direct contact with the family of murder victims to see what consequences there are to their actions and to make them accountable at least on a moral level for their actions or inactions. -In our case the first real contact we had with the prosecution counsel was after the trial was over.

. The crown counsel should have to consult with the victims directly on questions of victim impact statements and should be advocating on behalf of the victims to have the court accept the victims statements and the scope of the victim impact statement allowed for in the act should be broadened to include any matter that reveals or reflects the loss suffered by the victim as a result of the offence.

I expect many victims have not been in a position to lobby for their statements to be as they would like them and as a result are victimized again as they only have one chance at presented their VIS and if they do not do it the justice which it deserves and they do not say what they want to say they may regret it for ever and may cause further psychological damage to already damaged people.

2. Examininq the concept that criminals owe a debt to individuals as well - as society,. lncludinq issues - of compensation and reimbursement of costs

Offenders should have costs and penalty lodged against them and be given the opportunity to perform payed work while in Prison. This should be part of their repayment of their debt to society.

Their pay should be diverted to repay the debt which they owe and the debt should be determined at the time of sentencing. Part of the debt should include some costs towards the cost of maintaining them in custody.

As a requirement for consideration at a parol hearing the person should need to have repayed some reasonable portion of their debt.

Schools should teach the concept from an early age so that young people are made aware of the consequences of certain crimes and even if it stops one crime like the one we suffered from it will be worth it. I believe that if there was a moral values programme in schools and some education of the result of violence then it would go some way to helping the problem of violence.

Repayment of costs and reimbursement should be a fundamental part of every sentence.

It would also be part of rehabilitation process and could also be a positive contribution to the community.

Criminals should repay a debt to individuals adversely affected by their crimes. If there is a financial impact as a result of their crime they should repay it where possible in full.

3. Considerinq any other relevant matters

Privacy of Victims
A documentary made of our son murdered his memory and although he was a victim of murder and we were victims according to the victims rights act we were unable to stop the broadcast of the insensitive programme despite going to every avenue possible including all the relevant ministers.

There needs to be something in the victims rights act giving victims of violent crime some further protection from the media. We suffered from the total insensitivity of TVNZ and the powerlessness of the Privacy Commissioner, the ombudsman, Broadcasting Complaints Authority and Human Rights Commission to intervene on our behalf. None of them have any teeth or power and it was disconcerting knowing TVNZ got away with acting as they did. They acted in a heartless manner.

They gambled we would not take them to court knowing we had already said we could not afford it emotionally or financially. Our aim was to stop the programme playing and once it was played it was too late. They knew our son had been murdered, they knew we did not want the showing of the footage of our son as it would murder his memory and they simply went ahead with it.

Broadcasters should be included in the list of Public Organisations, which must have regard for victim's rights to be treated sensitively under the victim rights act. This requirement should be binding under the act rather than the current wording, which says that this part of the act where victims should be treated properly is not enforceable under the law.

Criminals can seek compensation for not being treated properly in prison but if a victim is not treated properly the act explicitly states that it is not enforceable by law.

The ministers told us it was not appropriate for them to interfere on day to day running, which may be true about Political matters but this was not a political matter it was a humane matter and there needs to be somewhere that will protect the vulnerable from being shunted by these organisations.

Broadcasting standards authority offers no protection they are totally ineffective and are unable to act until after a broadcast is made.

There needs to be some privacy protection in the victims rights act for victims because we found there is no protection in the broadcasting act or the privacy act and the broadcasting standards authority could do nothing until after a broadcast is made and even then did nothing.

Recommendation for the committee to consider

1. Amend the VICTIMS RIGHTS ACT to Include public broadcasters in the list of people that are required to treat victims of violent crimes with sensitivity and courtesy. See section 7 Current Victims rights act.
2. Amend the victim rights act to include a particular Privacy clause for victims. The Privacy Act is very weak and gave us no protection against public broadcasters who we found to be commercially driven and unregulated in relation to privacy of victims (privacy of offenders seems to be well taken care of).

Privacy of victims needs strengthening see section 14 of current Act. Privacy act and privacy commissioner gave us no protection against the broadcasters broadcasting footage of our son.

Victims Rights should be enforceable by a victim's rights commissioner or an existing department such as the human rights commission.