Guest Post: Closing prisons will not reduce harm.

A guest post by Jess McVicar of the Sensible Sentencing Trust:

Article 1: The faults in our system                                                                   

For 16 months Michelle has continued to live in fear. Every day she is being threatened by the one person she should be kept safe from – her perpetrator. Intimidation, stalking, harassment, property damage and unwanted visits keep Michelle on constant high alert.

This is the life of a woman who must continuously look over her shoulder, hoping her offender will not harm again, hoping that while she is waiting for his trial to happen, he will not kill her. But her life is in the hands of the Justice system.

Her everyday life has been affected by this selfish, violent, devious perpetrator who has been released on bail, only minutes away from her home. He has bail conditions set by the court, yet he continues to ignore them, stalking her, and threatening both Michelle and her family.

Why does she not just complain to the authorities you ask? She has – numerous times! But she has been told time and time again he is not doing “quite enough” to warrant being in technical breach of his conditions. Michelle has had to call the police so frequently that they have now asked her to stop calling 111. Why? Because every time they go to her home the perpetrator has gone. The police need a photo, or a video recording. To do this Michelle must put herself at risk. He has worked out how to avoid the security cameras at her home. He has been before the Courts for breaching his bail, but the Judge let him go. He should have been held in remand until trial, but unfortunately Michelle’s voice, her ongoing fears and concerns were not considered.

Sadly, Michelle’s case is not the only one like this. In 2019 there were 5995 applications filed for Protection Orders: an increase of 9% from 2018. 5487 of those Protection Orders were breached and 3008 people were charged with breaching protection orders in 2019.

In October 2018 Samuel Pearson 26, snuck into a home in Pukete. He snatched a 30-centimetre butcher’s knife from the kitchen before creeping into the bedroom where two girls aged three and four were sleeping. The children’s father woke to the girl’s fearful screams.

He rushed to the bedroom where he was faced with Pearson wielding the knife at the child. Pearson pushed the three-year-old’s face into a pillow and held the knife to the back of her head.

He then threatened to hurt the girl, who was distraught and crying.

The girl’s father lunged at Pearson to protect the child, tackling him into a wall. Pearson lashed out, inflicting stab wounds to the father’s temples and arm.

Pearson was on bail at the time of the violent home invasion for attacking a car with a scooter and repeatedly punching a man during a separate incident two days earlier. He previously admitted to intentional damage, assault with intent to injure and male assaults female in relation to the first incident on October 13 that same year.

Unfortunately, there are many stories like this, and more victims who have been violently harmed, murdered, abused or threatened by someone who is on bail.

Yet there is a push to repeal the Bail Amendment Act, which in turn will see a rise in crimes such as these.

The changes to bail brought in by the Bail Amendment Act 2013 simply ‘reset’ the bail law to a standard the public expected – and that should have already been in place.  For many years, the New Zealand public had repeatedly expressed their outrage and deep concern at the extent of crime committed by offenders on bail.  The fact the remand population has increased so significantly reflects just how lax the law used to be.

 Labour, National, NZ First, ACT and United Future all supported the changes – at all stages of the Bill.  Members from both major parties spoke eloquently in support, acknowledging the need to tighten up in this crucial area of our justice system.

The mistake they made was not taking into account the rise in crime, and the long waiting process between an accused’s first appearance and a trial. The Bail Amendment Act extended the range of offences without reverse burden of proof to include Class A drug offences, murder and serious violent or sexual offences.

It did however see a rise in those held in remand across all classes of offences, and the question must be raised as to whether Judges have misused the Bail Amendment Act or has the Bail Amendment Act allowed Judges to better manage defendants who continuously are in breach of bail conditions and had their final warning?

Currently there are over 3000 people held on remand, which makes up more than 35% of New Zealand’s prison population, but they are not held on remand for committing a lower level crime.

There is a large, biased conversation going around about the climbing numbers of remand prisoners. Who or what is to blame, how did we get into this situation, why is nothing being done?

So far, the dialogue seems to be limited to blaming the Justice system, or the Bail Amendment Act, or wait for it…..the defendants or offenders are victims.

At some point commonsense must be brought into this push to overhaul the Justice system. The vast majority of those charged with offences are subsequently convicted of them. Our crime and victimization rates will not reduce if we ignore evidence of risk to victims or our community while waiting for the wheels of justice to reach that conclusion.

So, what could be the possible commonsense approach without putting the community and victims at risk of being harmed? A faster and smarter approach in the courts system!

The current process can be anywhere from 6 months to 2 years – if not longer, and that is before there is even a trial. It is an absolutely appallingly drawn out process involving administrative work, ongoing meetings between the lawyers and judges, debating over name suppression, bail amendments, or bail applications, and often there will be 6-8 court dates set (call-over hearings) for just these administrative reasons.

There are many stories released about defendants having issues with this, and what harm it is causing them, but why are the stories of the harm and the effects it is having on the victims not being told? The victims not only have to wait the agonising process out, but they are also living with the aftermath of the offence committed against them. They have to try and rebuild some form of normality in their lives. And then if the defendant has been released on bail, they live with the continuous fear that they will return and harm them again.

A victim has no input at all over bail applications and locations, even if the bail address is in close proximity to the victim, they are lucky if they are even kept up to date with the progress of the case, and technically they are not entitled to go to the call over hearings.

In the meantime, remand doesn’t need to be any more punitive than is necessary to protect those who may be at risk from a defendant. What we need urgent action on is rehabilitation and prevention programs. That’s where we need the work to be focused on, not the ambulance at the bottom of the cliff.

But as defendants who are held in remand custody are still considered innocent until proven guilty, they cannot be forced to attend a program (no prisoner can be forced into a program for that matter), hence why they are not available for remand prisoners. But without at least the option to voluntary attend a course or programme, the defendant on remand has no opportunity to spend that time improving their chances of living a better life on release.

Assertions of widescale injustice are also exaggerated. Time spent on remand is credited against any eventual term of imprisonment, meaning the impact on most defendants is neutral. The only real injustices are with those who are acquitted (around 9% of cases) or who or receive a sentence that would not have seen them imprisoned for that length of time. We would be better off providing compensation to this small minority than trashing our current bail laws. 

The rhetoric that Three Strikes Law and the Bail Amendment Act are “tough on crime” is just theatrical nonsense. Having a commonsense approach to crime does not mean being tough on crime, it is about a sensible balanced approach. Protecting victims of violent crime is not about being tough on crime.

The answer to reducing crime is not about removing the victim’s right to protection and safety.

What has our justice system learnt from the death of Christie Marceau?!

Jess McVicar
National Spokesperson
Sensible Sentencing Trust

*Victims name has been changed.

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