Sensible Sentencing NZ Submission on the Criminal Proceeds Recovery Bill
to the Law and Order Select Committee
(Date : August 2007)
Introduction
Sensible Sentencing thanks the Committee for the opportunity to make this submission.
We had seen the Bill as irrelevant to victims and to reducing crime, so we paid little attention to it. Now that we have studied it, we are concerned that in the long term it will damage respect for law and for the enforcement of criminal justice.
We think the Bill should not proceed. There are elements of it that should be advanced but they are far outweighed by the bad parts.
Sensible Sentencing wants criminal law to be upheld rigorously. We want criminals to know that crime will not pay. We want them to feel that there is a near certainty of being caught, convicted and punished. We want punishment to be swift and severe enough to satisfy victims that the criminal is not better off than the victim because of the crime. We want reparation from criminals to victims whenever the criminal has something that can provide reparation.
But we also believe that the law will fail if it is not respected and trusted by the vast majority of law-abiding people. We believe the Bill will set conditions instead that could destroy confidence in the even-handedness of justice.
We want the restoration of punishment that denounces crime and deters. That means the price of crime must be swift, sure and severe.
But the community will not maintain the necessary public support for rigorous, certain, law if they fear that it is hurting too many innocent targets..
The sound criminal law we inherited was a package. It could be severe and certain because of the great care taken to give confidence that it targeted only the guilty. Sensible Sentencing Trust agree that it is better that 10 guilty go free than one innocent be convicted (though the saying is not "better that 100 guilty go free than one innocent be convicted").
Our inheritance of sound law has been trashed over the last 30 years under "therapeutic" theories of punishment – the view that the primary purpose is to "cure" the criminal’s tendency to crime. In essence the prevailing theory has been that if we treat criminals nicely enough for long enough they might be nice back.
We want the law to focus once more on the victim at the expense of the criminal. We want reparation for victims. But we do not want the criminal law to be discredited by abuses of power, by dubious findings, by poorly supervised procedures and reliance on dodgy evidence.
Accordingly we are concerned about this Bill’s destruction of longstanding principles of our Rule of Law. We believe that the state must convict (prove wrongdoing) according to rules known in advance, in front of independent judges applying due process. Only on conviction should people lose their ordinary security of person (liberty) and property. The standard of proof must remain beyond reasonable doubt.
We of course support powers to arrest, and to hold in custody pending trial. But that is practical necessity, to ensure the accused turns up to a fair trial. We would support much wider rules than now to sequester property pending trial, to ensure that the accused could 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. We can not support giving broad powers of confiscation of property to appointed officials in an undefined "recovery body".
Sensible Sentencing is suspicious that the Bill is designed, like so many other criminal law changes of the past few years (e.g. the Prisoners' and Victims' Claims Act 2005) to look tough but change nothing.
It seems to us that the Bill sets up an edifice (the Director of Criminal Proceeds Confiscation) to do very little. The kinds of offenders allegedly targeted (unconvicted ‘Mr Bigs’ who could be liable to more than 5 years if convicted of the crimes for which there is suspicion of connection) and the remedies set out, seem intended to ensure the maximum of publicity for the minimum of expenditure.
Worse, the Bill intends to 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. That reduction of the power of the Courts is bizarre.
None of the explanatory material released with the Bill gave data that would be expected if this was a serious effort to deal with a serious problem. There were no estimates of the size of the problem, or how much of a dent the new law would make in it.
If there was an intention to do something to really change the everyday experience of victims of crime and to stop crime being profitable, and to deter people considering a career in crime, it would:
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be focussed on the ordinary offenders living expensive lifestyles on benefits or without working.
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start with the offenders owing the vast pool of uncollected fines and reparations;
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reform the provisions that direct the courts to consider hardship to the offenders when ordering reparation, ahead of hardship to the victim.
Things we like:
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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);
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The 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. It should not go piecemeal;
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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 any judge or prosecutor to comment adversely on the failure of an accused to give evidence where the defence has put in issue matters on which the accused would appear to have the best knowledge.
Things we do not like:
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The "recovery body" not being defined, and subject effectively only to its Director and the expensive supervision of the courts in litigation challenging the Director.
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The precedent for exposure of New Zealand citizens to foreign kangaroo court orders. The countries proposed for reciprocity at the moment may seem reassuring, but how will the government withstand pressure for similar reciprocity from countries like China without giving offence. This risk highlights the bad precedent and bad principle aspects of this law. If the enforcement of overseas orders was confined to their own nationals and not NZ citizens it might be slightly less offensive.
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The unnecessary expansion on hardship to offenders in clauses 51 to 56. The courts do not need any encouragement to accept feeble excuses
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The casual ending in clauses 102 and 104 of the tradition that the IRD keeps confidences, even about criminal activity. Perhaps this is a good idea. If so it needs a proper discussion paper analysis, and debate about how far it goes.
Things that puzzle us:
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The retrospectivity of cl 245. This puzzles us because we have long been told that criminal law can not be changed to affect offences up to the date of the change. 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 wanted sentences pronounced as life sentences to mean life sentences. We were attacked on the grounds that making sentences truthful would be a retrospective law change. Now the Bill will increase punishments for acts done under the previous law. Indeed it will allow punishment for things that are not even illegal at the moment, on a standard that departs from all previous views on what should be required for 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 7 years have been cynical and spurious, or this Bill is unprincipled.
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It beggars belief that law was changed only 3 years ago in s 24 of the Sentencing Act to force the Crown after conviction beyond reasonable doubt to then go through another time wasting mini-trial of facts relevant to sentencing again “beyond reasonable doubt. The legal aid costs and increase in hurt to victims were then seen as irrelevant by the government. Yet now they want to impose 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 be starting in s 24 of the Sentencing Act. We would be pleased if it merely allowed proof on the balance of probabilities (which we think fair enough once the offender has been found guilty)..
Things the Bill should be doing:
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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:
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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.
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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.
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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.
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Courts which remit outstanding fines and reparations should be forced to impose prison terms in lieu that make non-payment a very undesirable alternative.
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Address common crime. The Bill is focussed on those profiting from the more rare major crimes. Instead it should make sure that ordinary crime does not pay. There are far more victims of ordinary crime. Serious criminals are in a recidivist pattern that rarely changes. Deterrence works least on them. It is much more important to send a practical message to people entering criminal careers. They should know that they will not profit from crime. Accordingly:
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a. Take the principle to a more common level The crimes that qualify for confiscation after conviction should start at the lowest possible level.
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Use fisheries law as a pattern The whole scheme should be recast to be more in line with the well tried pattern for fisheries offences, where forfeiture is the normal pattern, but it is interim until conviction and ends immediately on acquittal The fisheries pattern has been well recognised as suitable for offences which are difficult to detect and try, but where the gains from the offence are high, and the losses to third parties are high. 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 direct victims where possible, to enhance the incentives for ordinary citizens to report such crimes and to engage the community in using the citizens arrest provisions in the Crimes Act.
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Self help on trespassers vehicles People who discover crime should be given broad powers to detain "instruments" like vehicles, pending trial. The ability to seize intruders or or vandals vehicles directly instead of always relying on an overstretched Police, may reinstate a sense of power in the community, and deflate the over blown arrogance of offenders.
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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. That should get at least equal priority with the offenders currently targeted by the “5 years or more prison” qualification.
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