Bail changes

August 28th, 2013 at 4:00 pm by David Farrar

The Herald reports:

Serious violent, sexual or drugs offenders now face greater hurdles to getting bail after sweeping changes to bail laws were backed by Parliament.

The Bail Amendment Bill passed into law this morning by 102 votes to 19. It was opposed by the Greens, the Maori Party, Mana and Brendan Horan.

The bill would require that a person on a murder charge or repeat violence, drugs or sex charges would have to persuade a judge that the community would be safe if they were released.

A very welcome step. Far too many offences are caused by people on bail. This generally won’t impact alleged first time offenders, but will affect those with a history of offending.

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The bail madness

March 4th, 2013 at 1:00 pm by David Farrar

Bail should be granted to most people awaiting trial, as  they are innocent until proven guilty. Obviously not for the most serious cases such as murder.

But when someone has a history of offending on bail, or multiple previous convictions – then sticking them out on bail is just a recipe for creating further victims of crime. Especially that often any additional offences while on bail will not lead to greater punishment.

Now look at this case reported by Anna Leask:

A teenager on bail when he robbed an 81-year-old woman, breaking her hip and wrist and disabling her for life, has been sentenced to home detention.

But Darren Fidow’s elderly victim wants him jailed and is demanding a harsher sentence.

Patricia Sutcliffe’s hip and wrist were badly broken when she was robbed in 2011. She was in hospital for more than three months, is in constant pain and can no longer walk without a crutch.

Auckland Crown Solicitor Simon Moore, QC, is considering an appeal. The Crown originally sought a sentence of more than five years’ jail.

The sentence is bad enough. But look at the history.

Fidow was on bail facing a burglary charge when he robbed her.

In June 2011, Fidow was charged with aggravated robbery. He appeared in court and was released on bail.

1st time.

Fidow was arrested again in February last year for breaching supervision conditions and was warned and re-bailed.

2nd time.

He was also arrested in June after failing to appear in court. He was remanded in custody after evading police for several months, but released again in July on electronic bail.

3rd time.

Days later, after a scheduled court appearance, Fidow was caught burgling another house. This time he was remanded in custody, but in October, he was bailed again to Odyssey House, for alcohol abuse treatment.

4th time.

What is the bet he breaches his home detention?

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Bail should not be repeated if broken

February 20th, 2013 at 11:00 am by David Farrar

Anna Leask at NZ Herald reports:

Doctors later said the severity of Mike’s head injuries was usually only seen in car-crash victims – they had never seen it in an assault before.

Three men were arrested soon after and charged with causing grievous bodily harm with intent. The Herald has chosen not to name them for legal reasons.

Two of the men were already on bail and jointly facing charges, including assault with intent to injure and possession of a knife. After the alleged assault on Mike, one was remanded in custody and the other re-bailed.

Bail is often appropriate when people are first charged as they have not yet been found guilty (if they are). But if you are on bail and get charged again then bail should not occur unless there are exceptional circumstances.

The third man was also remanded in custody but bailed after a successful High Court appeal. He was arrested again in January for failing to appear in court and then granted bail again until his next appearance.

And if you fail to turn up to court, you should also lose the right to bail.

The family believed that anyone charged with a violent offence should be kept in custody until their trial to prevent any further attacks.

That is a step too far. But if they have a history of offending or were already on bail when further alleged offending occurs – then bail should not occur.

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Yay for Judge Callender

December 23rd, 2012 at 2:00 pm by David Farrar

Chloe Johnson at HoS reports:

A district court judge is waging a crusade from the bench to stop serious offenders being released back into the community.

At one sitting earlier this month, Judge Russell Callander sent four defendants back into the cells while making strong statements about the need to keep the public safe.

During the hearings at the Auckland District Court, Callander said bail was granted too readily and judges could not take any more chances.

“We are almost weekly now presented with ugly situations in court where violent offenders seek and obtain bail, only to return home to inflict either death or further grievous injury on the original complainant,” Callander said.

“That strikes fear into the heart of any rational community, and indeed into the heart of any rational judge assessing risk issues on bail.”

The level of offending on bail is massive. Great to see a Judge focusing on preventing further violence.

One allegedly king-hit his partner, causing her to go blind in one eye.

Another allegedly robbed a jeweller’s shop while high on meth, placing a shotgun to the owner’s face.

The third was a recidivist burglar with 106 previous convictions facing a fresh charge of burglary.

The last was a man kicked out of a rehabilitation programme, resulting in breach of e-bail.

What lovely men those first two are especially.

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The Bail Amendment Bill

November 10th, 2012 at 1:28 pm by David Farrar

The Bail Amendment Bill has just been reported back from select committee. I am a supporter of it, and think it will save lives. Akshay Chand should never have been able to get bail, and sadly he killed Christie Marceau.

With bail it is a balancing act. If everyone accused of a crime was refused bail, then many innocent people would be spending lengthy spells in jail. But likewise if all those arrested automatically got bail, then the number of people killed, raped and beaten by those on bail would be significant. Once you know you are facing a trial and eventual jail on some charges, some are motivated to offend even more as it may not lead to an increased sentence.

In the last five years 46 people on bail were found guilty of murder or homicide.

Now what is the main provision of the bill:

  • remove the strong presumption in favour of bail for defendants aged 17 to 19, if they had previously been sentenced to imprisonment.

This is well overdue. Half of young defendants who had served a previous prison sentence (think what you must have done to have already had a prison sentence by this age) go on to offend while on bail. Removing the strong presumption to bail means they can be judged on the merits on the risk.

But read the minority reports from Labour and Greens.

I can’t even work out what Labour’s position is on this key provision. They repeat what the provision does, but do not state their view on it. As it is a minority report, I think they are against it – but seriously who could tell? I guess they are trying to have it both ways.

The Greens are more clear cut. They support keeping the current law which sees 18 and 19 year olds released on bail despite extensive previous offending and a 50% reoffending rate while on bail.

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Christie’s Law

October 22nd, 2012 at 3:00 pm by David Farrar

The Herald reports:

Mr King said he supported parts of Christie’s Law, the proposed amendments to the bail Act campaigned for by Christie’s parents after her death in November last year. …

Mr King said parts of Christie’s Law were “sophisticated” and “thought-through” but he said a suggested risk assessment tool to judge judges was “costly gobbledegook”.

He backed changes to the law that currently give a strong presumption of bail for those who are under 20, saying it would have made a difference in Christie’s case.

Rare for a defence lawyer to support a law change which will make it harder for defendants (under 20) to get bail, so good to see this. I think the key point is that the current law made it very hard for a Judge to refuse bail, and removing the presumption of bail may have meant Chand would not have got bail, and hence killed Christie Marceau.

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Killing on bail

August 8th, 2012 at 10:00 am by David Farrar

Anna Leask at NZ Herald reports:

Twenty-three people were convicted of murders committed while free on bail over a five-year period, say Ministry of Justice figures obtained by the Herald.

A further 21 were convicted of “homicide-related” offences committed while on bail.

These included manslaughter, attempted murder and driving causing death.

So 44 people were killed by criminals out on bail, over just five years. Tragic and preventable deaths.

Someone out on bail often is at their most dangerous. They know they are likely to go to jail when their case gets to court, and any crimes they commit during the bail period will not necessarily result in a longer sentence. Hence we have a perverse incentive.

Labour changed the law to make bail easier. That was reversed by National, but I think there is still more to be done.

People are innocent until convicted, but when they already have a criminal record, we can’t allow them to kill 44 people while awaiting trial. I wonder how many of those 44 deaths on bail were done by someone who already had criminal convictions? I suspect almost all or all.

The Bail Amendment Bill aims to change bail laws to improve public safety. One of its changes would reverse the burden of proof for serious violent and sexual offenders.

This means defendants would have to prove to the court that they would not be a threat to public safety if released on bail.

Under the present law, the police must show why defendants should remain locked up.

44 preventable deaths. We can do better.

Between 2006 and 2010, 69,087 people were convicted of at least one offence committed while on bail.

Of those, 7146 were convicted of acts intended to cause injury – mainly assault – 1132 of abduction, kidnapping, false imprisonment, harassment, nuisance or threatening behaviour, and 763 of sexual assaults or offending.

Also far too high.

I wonder what the stats are for people not given bail, who get found innocent – ie spend time in jail they shouldn’t have? Anyone know?

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Christie’s Law

June 12th, 2012 at 12:00 pm by David Farrar

The Herald reported:

Tracey Marceau delivered a tearful plea to Parliament yesterday as she presented a 58,000 signature petition supporting the campaign, in memory of her slain daughter, to strengthen bail laws.

Christie Marceau, 18, died in her mother’s arms after a violent attack at their North Shore home in November.

Akshay Chand was arrested at the scene and later charged with Christie’s murder. Chand was on bail at the time after being charged in September with kidnapping, assaulting and threatening Christie. 

A campaign website has been set up, asking for 10 changes to bail laws, to help stop any preventable killings – such as Christie’s.

One proposed change is an unfortunate loophole in the 3 strikes laws, that if you commit further violent or sexual offences while on bail for a similar offence – then the further offences do not count as strikes. This provides a perverse incentive to offend more while on bail, as the consequences are reduced.

The reasons it works this way is that you can’t get a second strike, until convicted of a first strike, and offenders need to be aware in advance of the consequences of any further offending. But a simple solution to this is that if someone charged with a “strike” offence is given bail then they are told in court that if convicted they will get a first strike and if they offend similarly while on bail then further convictions will be their second and third strikes. This would remove the perverse incentive that offending on bail has less severe consequences.

The campaign has 10 changes they are seeking to the Bail Act, which I will outline below. The one I mentioned above may be dealt with as a private members bill. I understand Taupo MP Louise Upston is drafting such a bill.

The 10 changes are:

  1. No bail for any person who is charged with a serious violent “three strike” offence, who has previously committed a serious violent “three strike” offence while on bail.
  2. Judges should be required to pay particular regard to submissions made by victims, and any personal threats made against victims in deciding whether bail should be granted.
  3. Fix the loophole that allows persons committing serious violent “ three strike” offences while on bail for other serious violent “ three strike” offences, to avoid the “three strikes” sentencing regime.
  4. Removal of the strong presumption in favour of bail for persons under 20 where previously convicted of an offence punishable by imprisonment.
  5. Conduct an annual review into serious breaches of bail & serious crime committed while on bail, and reported to the Minister of Justice and publicly available.
  6. Police should have powers to appeal bail decisions equal to those the defence has.
  7. Implement a “risk assessment tool” to assist Judges to make well-informed bail decisions.
  8. Implement practical methods of increasing judicial accountability for bail decisions, such as internal benchmarking of Judges’ performance and assistance for poorly performing Judges.
  9. Serious breaches of bail to be addressed by a presumption of imprisonment, rather than fines, which are ineffective, inconsistently applied and rarely paid.
  10. Offences committed while on bail should be sentenced cumulatively, rather than concurrently as they generally are at present.

With (1) I think if one has committed a serious violent offence while on bail, you should lose bail eligibility in the future.

(2) is minor, and (3) I discuss above. No (4) is debatable – it would depend on what replaces the strong presumption in favour of bail. Nos 5 to 8 are fairly minor also.

No (9) I support. Breaching bail is not a minor issue, and the best way to deter it is the near certainty of imprisonment for serious breaches.

No 10 is of critical importance. Stephen Franks has blogged on this previously. It all comes back to the fact offenders on bail are incentivised to offend further, for little consequences. If for example you are charged with 25 burglaries and you get bail. Now if you go and do another 20 burglaries while on bail, then the sentence you will get will tend to be almost the same as for the original 25 burglaries.

I do support concurrent sentencing as the norm, but not for offences done on bail. You need to have an incentive to not offend on bail – and the current set-up provides very little incentives – as we tragically have seen.

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SST on bail

February 18th, 2012 at 9:49 am by David Farrar

Michael Fox at Stuff reports:

The Sensible Sentencing Trust is set to launch a campaign to toughen bail laws after the murder of an Auckland teen, allegedly by a man on bail.

The hard-line law and order lobby group also wants judges to be subjected to annual performance reviews and the right of serious offenders to apply for bail removed under a campaign dubbed ‘Christie’s Law’.

The campaign comes after the death of North Shore teen Christie Marceau who was stabbed to death in her parents’ Auckland home last November. She died in her mother’s arms.

Akshay Anand Chand, 19, has been charged with her murder.

Chand was on bail having previously been charged with kidnapping Marceau, and despite opposition from police and Marceau’s family, the judge released him on bail to live at an address near her house.

Judges can never get it right 100%, but wow was that a bad decision.

The trust says a number of murders have been committed by offenders on bail and in association with the Marceau family, wants “to send a very clear message to judges”.

The trust is also recommending that judges undergo an annual performance review and for police to have the power to veto a judge’s decision to grant bail.

Ummm, no. I prefer not to live in a police state.

It has also called for amendments to the Bail Act including the removal of the option of bail for defendants with a history of violence which involved a sentence of more than two years.

Now that is a far better proposal.

The trust also wants an automatic inquiry after serious breaches of bail similar, to that carried out after police shootings.

Depends what is deemed a serious breach of bail, but certainly at a minimum any breach of bail which leads to a killing should be fully investigated.

The trust has written to Birkenhead MP Jonathan Coleman, seeking his support for the campaign.

Northcote. The seat’s name changed in 1996.

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No bail

January 25th, 2012 at 12:48 pm by David Farrar

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.

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Bail laws review

March 15th, 2011 at 1:49 pm by David Farrar

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.

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Labour’s bail laws

October 4th, 2009 at 12:00 pm by David Farrar

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.

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Labour votes to repeal their own law

December 12th, 2008 at 11:13 pm by David Farrar

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.

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Labour lets pack rapist Shipton out early

November 5th, 2008 at 6:55 pm by David Farrar

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.

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National’s Sentencing Policy

October 23rd, 2008 at 9:00 am by David Farrar

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.

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What does it take to not get bail?

June 8th, 2008 at 6:44 am by David Farrar

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.

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