Submission: Sentencing (Aggravating Factors) Bill

Oral submission to the Law and Order Select Committee in respect of the Sentencing (Aggravating Factors) Amendment Bill.

From the Bill: "The purpose of this Bill is to ensure that the fact that an offence was committed against a Police officer or prison officer acting in the course of his or her duty is taken into account as an aggravating factor at sentencing."

1.0       Introduction

1.1       The New Zealand Council for Civil Liberties (NZCCL) appreciates the opportunity to make an oral submission to the Committee in relation to this bill.

1.2       The two aspects on which NZCCL wishes to focus are the disregard for the provisions of S.9 of the Bill of Rights Act 1990, and, more importantly, the need for balance in addressing any change in the sentencing regime.

2.0       Bill of Rights Act 1990

2.1       S.9 states that “everyone has the right not to be subjected to ….disproportionately severe ……. punishment.”  Crown Law concluded that the bill as drafted is not inconsistent with the rights contained in the Bill of Rights Act, even though the Amendment bill introduces a further factor that is to be taken into account at the time of sentencing.  Crown Law does state that “the Bill confirms the common law position”.  Unfortunately, there is no further explanation or rationale provided which, in our view, considerably reduces the significance and value of its conclusion.

2.2       NZCCL considers that the addition of a further factor to be taken into account at the time of sentencing clearly amounts to an increase in the severity of the punishment.  Indeed, according to the General policy statement in the Explanatory note that accompanied the bill, the sole purpose for adding that factor is to enable a more severe punishment to be imposed when the Judge considers it appropriate to do so. 

2.3       Our view is that the Crown Law conclusion is flawed and, as a result, the requirement that the Attorney-General make a report to Parliament under S.7 has been by-passed.

2.4       Existing aggravating factors, as set out in S.9 (1) of the Sentencing Act 2002, relate solely to the circumstances of the offence i.e. the harm of the offence and the culpability of the offender.  The proposed additional further factor extends aggravating factors to a new category, based solely on the occupation of the victim.

3.0       A Need for Balance

3.1       The General policy statement also states that “it is appropriate that an aggravating factor be introduced to recognise the important role of police officers and prison officers, and to denounce offending against (my emphasis) them.”

3.2       While there may be some justification in recognising those particular roles, no account has been taken of any offending by (my emphasis again) police and prison officers, particularly in relation to persons who are in their custody.  NZCCL considers that any offending by police and prison officers in those circumstances deserves to be denounced at least to the same degree.

3.3       As a broad generalisation, most offenders are likely to have a low regard for the law, little knowledge of its content, and probably shy well away from any significant allegiance to it.

3.4       On the other hand, police and prison officers are expected to have a high regard for the law, considerable knowledge of its content and (significantly) have sworn allegiance to it.  In addition, such officers occupy a position where they have a great deal of power over thosewho are in their custody.  Sadly, there have been occasions when that power has been abused.

3.5       In view of their sworn allegiance to the law and the considerable power which is exercised by virtue of their position, police and prison officers are required to demonstrate a higher standard of performance than those who are otherwise classified as offenders.  When an officer falls short of that standard, particularly in relation to a person within their custody, that officer also becomes an offender, and that offending in turn deserves to be classified in the same manner, i.e. as an aggravating factor.

3.6       NZCCL acknowledges that there are other avenues where the conduct of a police officer can be subject to review.  However, our view is that those avenues are additional rather than alternative ways in which a review can subsequently occur, and that it is more important that a visible, balanced and transparent approach is utilised.  In other words, that the same sentencing regime govern assaults on and by police officers.

4.0       The Human Element

4.1       Fundamentally, an assault involves human beings in an altercation with one another.  To introduce the question of occupation into that equation is to cloak the altercation in a manner that blurs the reality that both parties are human beings.  As the bill is presently drafted one of those persons is advantaged simply by virtue of their occupation, while the other (usually classified as the offender) is disadvantaged.

4.2       To ensure a balanced approach the bill needs to provide a comparable outcome whenever the offender happens to be a police or a prison officer, viz. that an assault by a police or prison officer constitutes an aggravating factor.

5.0       Conclusion

5.1       The bill confirms the common law position that New Zealand sentencing decisions already take into account as a matter of established practice that the victim of an offence was a police or prison officer acting in the course of their duty.  Ipso facto the bill is superfluous, and on that basis alone the proper outcome is for it to be discharged.

5.2       However, if the Committee is of a mind that the bill ought to proceed, NZCCL considers that it is essential to incorporate a comparable provision where an offence is committed by a police or prison officer acting in the course of their duty.

5.3       S.9 (1) of the Sentencing Act 2002 requires the court to take into account the following aggravating factors to the extent that they are applicable in the case:paragraph (f) “that the offender was abusing a position of trust or authority in relation to the victim”.  This clause indicates clearly that, inter alia, a position of authority constitutes an aggravating factor, which is comparable to the relationship of a police or prison officer in respect of those persons within their custody.

5.4       If the bill is to proceed NZCCL considers that for the sake of clarity, and to ensure balance and transparency, it is essential to include a specific provision to make it clear that an assault by a police or prison officer on a person in their custody is to be regarded as an aggravating factor for the purposes of S.9.  The requisite paragraph can be worded along these lines:paragraph “fb  that the offender was a constable or prison officer abusing a position of authority in relation to a person within their custody.”  Simple, straightforward and balanced.

6.0       Summary

6.1       NZCCL submits very strongly that this bill be discharged forthwith.  However, in the event that the Committee decides to proceed with the bill, it is essential that a comparable provision like paragraph fb above be incorporated into the bill.