Kiwiblog

Edward Gay at NZ Herald reports:

Internet multimillionaire Kim Dotcom has been declined bail.

The German businessman, a resident in New Zealand, is accused of being at the centre of a computer piracy empire through Megaupload, a website business he co-founded.

Judge David McNaughton delivered his decision at the North Shore District Court today in front of a packed public gallery. …

An immediate appeal has been lodged at the High Court.

The decision is totally unsurprising. His behaviour when arrested combined with four passports and 45 credit cards, screams out flight risk.

I predict the bail decision will not rest at the High Court but they will seek leave to appeal to the Court of Appeal and Supreme Court. Likewise the extradition hearing itself will be appealed all the way to the top. The longer they can delay things, then they will use the Ahmed Zaoui trick and argue the time it has taken to get a decision, means it is unfair to keep him in jail (even though they have caused all the delays).

When he finally does get extradited back to the US, I note he has hired Bill Clinton’s old lawyer so that one will also be taken all the way to the Supreme Court. I expect a resolution to be two to three years away.

Simon Power has just announced a review and consultation on bail laws.

This is additional to the reversal of the change made by Labour in 2007 which made it easier for people to get bail. This was repealed straight after the election.

Some interesting stats:

• Under 2% of defendents are remanded in custody for the entire period between arrest and trial
• Around 9% of defendents spend some time in custory and some time on bail
• The proportion of defendants that offended on bail has increased from 15.7% in 2004 to 17.9% in 2008
• Over the five years 2004 – 2008, 64,659 defendents were convicted of commiting an offence while on bail
• Of those who offend while on bail, 34% got a community based sentence, 30% imprisonment and 21% a fine

The questions the Government is asking are:

1. What is your view on whether there should be a reverse burden of proof for defendants charged with serious class A drug offences (i.e. should they have to prove that they should be granted bail instead of the prosecution having to prove that they should not)?
2. What is your view on whether electronically monitored bail should continue to be an option for defendants charged with serious methamphetamine offences?
3. What is your view on whether the Courts should be able to release defendants charged with murder on bail
4. What is your view on whether there should be a reverse burden of proof for defendants charged with murder (i.e. should they have to prove that they should be granted bail instead of the prosecution having to prove that they should not)?
5. What is your view on whether new offences should be added to the list of specified offences that qualify for a reverse burden of proof (if the defendant has a previous conviction for one of those offences)? What criteria should be used to assess which offences to add to the list of specified offences?
6. What is your view on whether electronically monitored bail should continue to be an option for defendants charged with serious violent and sexual offences?
7. What is your view on whether the presumption in favour of bail for 17 to 19 year olds should apply to defendants who have previously served a prison sentence?
8. What is your view on whether breach of any condition of bail should be a ground for arresting a defendant under 17 years of age without a warrant?
9. Do you think that any further requirements or safeguards are needed to prevent bail being granted inappropriately in return for information? If so, do you agree with the Government’s proposal to insert a legislative provision into the Bail Act 2000 and are any other requirements or safeguards needed?
10. Are there any other non-legislative measures that could be used to reduce the number of defendants that fail to answer bail?
11. What is your view on whether the maximum penalty for failure to answer Court bail should be increased? If you think it should be increased, what should it be increased to?
12. What is your view on whether the maximum penalty for failure to answer Police bail should be increased? If you think it should be increased, what should it be increased to?
13. What is your view on whether monetary bonds and sureties should be reintroduced in the District Court?
14. What is your view on whether monetary bonds and sureties should be abolished for Police bail?
15. What is your view on whether the EM bail regime should be set out in legislation?
16. What is your view on whether breach of EM bail should be an offence in addition to being a ground for arrest and reconsideration of bail?
17. What is your view on whether time spent on EM bail should be taken into account in sentencing?
18. If time spent on EM bail is taken into account in sentencing, should there be some legislative guidance to assist the Courts in determining the appropriate discount (e.g. a set formula or guidelines specifying the types of factors relevant to deciding how time spent on EM bail should be taken into account)?

My general instincts are that the criteria for getting bail should not change much (remember not everyone charged is found guilty) but that the penalties for offending on bail should be increased.

Some good research by the Sunday News:

VICTIMS’ families fiercely criticised changes to the bail laws fearing that they would let more dangerous criminals out on the streets.

Now new figures released show nearly 10 per cent, or 5000 more offenders, were freed on bail when the Bail Amendment Act 2007 came in.

And more than a third were facing serious violent charges, including manslaughter and murder.

Fortunately the changes have since been repealed.

In 2006, less than 48,000 defendants were bailed by the courts – that rose to 50,910 in 2007. After the new bail laws were brought in, the numbers of accused freed on bail rose dramatically to 55,730, according to Ministry of Justice figures obtained by Sunday News under the Official Information Act.

Of those bailed in 2008, almost 20,000 were facing serious violence charges and more than 14,000 were charged with drugs offences.

What would be interesting is how many of those released on bail had previous convictions?

The 2007 Bail Act had changed the law so defendants facing trial or sentence had to pose a “real and significant risk” of breaching bail, reoffending or interfering with a witness for bail to be declined. Before, the defendant only had to pose a “risk”.

This was done as a cost saving measure by Labour.

In 2007 Labour changed the bail law to make it easier for people to get bail, even if they had previously offended while on bail.

National pledged to repeal this, and did so a few minutes ago.

But here is the interesting thing – Labour voted to repeal their own law – it passed 106-7. Now that’s a flip-flop.

Phil Goff is very worried about Labour being seen as soft on law & order. I suspect he will push Labour to vote for most of National’s changes to parole and bail.

TV3 reported tonight that the parole board is letting pack rapist Brad Shipton out of jail in a couple of weeks despite the fact he hasn’t served even three years of his eight and a half year sentence.

How is it possible a pack rapist gets out of jail so quickly?

The answer is that Labour changed the law in 2001. Before they changed the law Shipton would have served around a minimum of six years of his sentence. But Labour changed the law to allow rapists to be eligible for parole after just one third of their sentence instead of two thirds.

This is the same Government that has also just made it easier for repeat offenders to get bail.

National has now released its full sentencing, parole and bail policy. Key elements:

• No parole for the worst repeat violent offenders – those sentenced at least twice to prison terms of five years or more (already announced)
• Life without parole to be made available to Judges as a sentence for the worst murderers
• Substantially increase penalties for causing the death of a child when there is a history of neglect
• Makes the point that assault on a child currently has a maximum two year penalty – one year less than the maximum three years for wilfully ill-treating an animal!
• Review whether to maintain home detention as an option for violent and sexual offenders
• Reverse Labour’s changes to the bail laws that made it easier for people to get bail – even if they have broken bail conditions previously
• Increase from $7,500 to $50,000 the maximum amount that can be in dispute and heard by the Disputes Tribunal, allowing more time in District Courts for criminal cases

I imagine there would be only one or two murders a year which are so heinous that a Judge would sentence someone to life without parole. They may be people who might never have got parole anyway, but this means the family of the victims do not have the trauma of having to submit to the Parole Board every year on why so and so should remain in jail. It truly gives the victims’ family a life sentence also.

UPDATE: A useful example from the comments:

As much as Labour try to trumpet the Sentencing Act 2002 as ‘getting tough on crime’ they fail to mention the Sentencing amendment Act 2007 which is anything but.   3 defendants appearing on their 8th, 9th and 10th drink drive charges respectively. Under the new senting guidelines of the 2007 Act, home detention and community detention are to be considered for suitability in all drink drive cases before the imposition of imprisonment. Despite one defendant having been imprisoned on both prior occasions and despite blowing 2.5 times the legal limit (Twice the level he returned at the last time he received jail) and crashing into a parked car, none of the defendants received anything more than 6 months community detention (Essentially means they are curfewed at night). Another defendant received 16 months imprisonment for his 31st burglary conviction…

So previously these repeat drink drivers were sent to prison (totally appropriate for a 8th or greater offence) but now they just get community detention which means they can carry on drink driving until they kill someone. Remember to have been convicted eight times of drink driving, you have probably driven drunk on more than 1,000 occassions as most people get checked less than 1 in 100 times they are out.

There is a legitimate debate about when someone does or does not get bail, as people are innocent until found guilty. But as it can take well over a year for someone to come to trial, you need some ability to protect the community until the trial, if there is a significant risk of further offending.

Now I can’t think of much of a better case for no bail than this one of Bernard Long:

• Found with 30 guns including sniper rifles, pistols and an AK47
• Charged with careless use of a firearm and engendering public safety after aiming laser sights all day at various people on boats
• A gun with laser sights was found in an insecure state, with rounds in the magazine
• Several other fully loaded magazines were found
• Has a previous conviction for running over a paua driver in his boat

So he has a history of harming others, he has 30 guns in his house, some of them are loaded, and he spends his nights aiming them at people with the laser sights. Yep a perfect candidate for bail.