In the ebb and flow of political cycles, the tide is now going out on effective justice reform and rehabilitation for young offenders.
At 8am on December 8, 2001, William Dwane Bell entered the Mt Wellington-Panmure RSA’s restaurant and bar in east Auckland. He carried a shotgun and wore a stab-proof shirt and once inside he killed three people, shooting one and bludgeoning the others to death. He beat a fourth victim so severely that he left her with profound permanent injuries.
Bell was 23. When he was arrested and charged, it emerged that he had more than 100 criminal convictions. He was on parole after serving a five-year sentence for aggravated robbery but none of the conditions of his parole had been met. His probation officer failed to supervise him, he’d recently committed other robberies and the police had been notified but ignored the complaints.
The RSA triple murder was a media sensation and it was quickly politicised. How could someone so dangerous be released into the community? What was wrong with the parole board? The probation office? The police? The entire criminal justice system? Didn’t the government have blood on its hands? What were they doing to protect New Zealanders from violent crime?
The Helen Clark-led Labour government of the early 2000s was tough on crime. Over its nine-year term, it built four new prisons. In 2002, then justice minister Phil Goff strengthened New Zealand’s sentencing and parole laws, suggesting they’d prevent Bell from ever receiving parole. After they came into effect New Zealand’s prison population per capita – which had been steady for many years – began to rise.
For criminologists and advocates for justice reform, this sequence – sensational crime, saturation media coverage, frantic political response – epitomises everything that’s wrong with the justice system. When news coverage focuses on shocking, atypical crimes it frightens the public and pressures politicians to reassure them. So the result is a system built around political opportunism that does nothing to rehabilitate offenders or reduce crime.
For the past six years, the Labour government has tried to break this vicious cycle. It has explored alternatives to incarceration and dramatically reduced the prison population.
But with violent crime and robberies rising rapidly, questions about the safety of its home detention policy and an election in which crime is a major issue, second only to the cost of living, has the government failed to escape from prison?
Moral and fiscal failure
In 2007, Clark attended the opening of Spring Hill Prison in Waikato. In her speech, the prime minister noted that crime was at record lows and yet, “Our country has the fifth-highest imprisonment rate in the OECD. Our rates are higher than those of the United Kingdom, Canada and Australia – nations we like to compare ourselves with. I believe our goal must be to get the imprisonment rate back to levels more consistent with those countries we consider to be our peers.” She pointed to a recent law change making home detention and community supervision available to judges as alternatives to short prison sentences for low-risk offenders.
“Of course,” she added, “the safety of the community must always be paramount.”
Her government was voted out of power a year later but in 2011 National’s finance minister, Bill English, went even further than Clark, announcing at a Families Commission forum in Wellington that prisons were “a moral and fiscal failure”. He lamented the enormous expense of the prison system and its well-documented failure to rehabilitate people. Custodial sentences were a pipeline for future offending.
Sociologist Jarrod Gilbert lectures on crime and criminal justice at the University of Canterbury. His book Patched is the seminal history of New Zealand’s gangs. Gilbert believes that English’s comments “opened up a window of opportunity whereby things might be done differently. There was a wide acceptance that what was being done wasn’t working”. Prison numbers rose under National but in academic and judicial circles there was a more thoughtful conversation taking place: a discourse about where the justice system had failed and how to fix it.
Victims become offenders
There’s a famous line by the poet WH Auden: “Those to whom evil is done do evil in return.” The sentiment haunts the findings of the Royal Commission of Inquiry into Abuse in Care, looking into the abuse of children, teenagers and vulnerable adults from 1950 to 1999. Its interim reports estimate roughly 250,000 people, mostly children, suffered some form of abuse under the care of institutions – orphanages, hospitals – run by churches, non-governmental organisations (NGOs) and the state during that period.
Many of the records kept by these institutions were destroyed – there is suspicion this was to conceal evidence – so the commission isn’t sure about victim demographics. But they cite an Oranga Tamariki report estimating 81% of children abused in care were Māori. A 2022 study by the commission found 42% of Māori children in state care wound up in prison. Bell was put in state care at age 9 and remained a ward of the state, in and out of institutions, until 17.
Sonja Cooper is a solicitor specialising in representing people who have been abused in state, NGO and faith-based care. Her Wellington practice is currently handling about 2000 claims by abuse victims. For Cooper, there’s a very profound link between the failure of state institutions and the pipeline of troubled young children into serious criminal offenders. “A lot of our client groups start in sad circumstances. They’re impoverished,” Cooper said.
“At least 80% of the youth court cohort have some form of neuro-disability. They’re going to have conditions like ADHD, or fetal alcohol spectrum disorder, a communication disability. It can make their ability to process and understand the world around them quite complex. They get to school. School is difficult. They get labelled as troublemakers. They’re possibly coming from families where they’re exposed to alcohol, drug abuse and violence.
And then they get taken into state care. They get put with strangers who don’t care about them and, worse, a lot of them are abusive. They’re put with other troubled kids so they’re going to be learning from them. This creates a cohort of children who feel disenfranchised. They don’t see themselves as belonging in society. And that’s how they enter the criminal justice pipeline. We have this morality tale about how offenders are bad and victims are good. But most of the offenders in the justice system are also victims.”
Cooper would like to think state care is better now, “but I’m not entirely confident, given what I see in the youth court.” And she believes institutional racism has been endemic in the justice system. “Māori children get disproportionately removed from their whānau. Māori are disproportionately arrested, they are disproportionately charged and they are disproportionately sentenced.”
Escaping from prison
In 2004 – the midpoint of the Clark government – the Department of Corrections’ annual report warned that prison numbers were rising rapidly: far faster than the Ministry of Justice had forecast. It also noted over-representation of Māori in criminal justice statistics: 14.5% of New Zealanders self-identified as Māori yet 50% of prisoners were Māori. Recidivism rates – the percentage of released prisoners reconvicted after 24 months – were high: 55.4% for all prisoners; 61.1% for Māori.
Bill English may have had reservations about the value of prisons but he was not the police and corrections minister. From 2008, Judith Collins was. Two years after it came to power, National passed the Sentencing and Parole Reform Act, also known as the three-strikes law, mandating longer prison sentences for repeat violent and sexual offenders.
By 2017 the prison population was 10,515 and the government planned to add another 3000 prison beds to the Waikeria Prison expansion in Waikato, at a construction cost of $1 billion and an annual operating cost of an additional $300 million. The 24-month recidivism index for Māori in 2017 was now 67.7%. The system was getting worse.
That year, the Waitangi Tribunal released Tū Mai Te Rangi!, a report that found the New Zealand crown had failed to prioritise reducing the high rate of Māori reoffending relative to non-Māori, and that this placed it in breach of its Treaty of Waitangi obligations. The tribunal found that “while the justice sector announced in February 2017 a broad target to reduce Māori reoffending, [the Department of Corrections] has no specific plan or strategy to reduce Māori reoffending rates”.
It was election year again, but instead of getting tough on crime, Labour wanted to get tough on prisons. It pledged to scale back the construction of new jails, scrap National’s three-strikes legislation and cut the prison population by 30% while lowering crime rates.
After the election Labour formed a government with New Zealand First with confidence and supply from the Green Party. For newly appointed corrections minister Kelvin Davis, the prison situation he inherited was dire. “I had officials telling me there was only a handful of beds available and that we needed to start considering emergency options, such as triple bunking, mattresses in hallways and even dusting off old, mothballed boarding schools.
“We had to decide whether we continued down the path the previous government had set of building very expensive mega prisons to cope with the population, which likely would not have even been built yet, or try something different.
“We decided on the latter.”
When Andrew Little became minister of justice in 2017, he declared that the criminal justice system was broken and racist and that he intended to fix it.
The following July he launched Hāpaitia te Oranga Tangata | Safe and Effective Justice, a high-powered advisory group that would drive the radical reform he’d promised. It was chaired by Chester Borrows, a former police officer turned lawyer and National MP. He’d become a ferocious critic of National’s tough-on-crime approach and a champion of what he called “smart on crime”.
A month later, the group held a summit in Wellington where ministers, judges and senior police officers discussed criminal justice reform with gang leaders and former prison inmates.
In her address, then prime minister Jacinda Ardern repeated English’s line that prison was “a moral and fiscal failure”. Little declared, “Hāpaitia Te Oranga Tangata is about having the guts to look honestly at our slide towards an American-style justice system, and fixing things so we can have safer Kiwi communities”.
And things began to change. New Zealand First blocked Little’s attempt to scrap the three-strikes law – it was finally repealed in August last year. But after years of rapid increases, the prison population finally declined. In March of 2018, it was 10,712. By April of 2022, it was 7775: an astonishing 27% drop in just four years.
Announcing the government’s 2020 law and order policy, Ardern promised to continue this success: “We will continue the work started this parliamentary term to reduce offending, reduce victimisation, tackle the root causes of crime and enhance community safety and wellbeing.”
In September last year, 18-year-old Bay of Plenty man Jayden Desmond Meyer was found guilty of raping four 15-year-olds and sexually violating another. Meyer was 16 at the time. A psychologist found that Meyer “had a medium risk of reoffending, and continues to minimise the effect of his crimes”. The victims and their families spoke of the devastating impact of his actions. But crown prosecutor Anna Pollett believed home detention would be the most appropriate sentence. Judge Christopher Harding agreed that the normal punishment for such offending would be imprisonment “of many years” but accepted the crown’s argument and sentenced Meyer to nine months’ home detention.
There was widespread public outrage. How could such serious offending receive such a trivial sentence? Judge Harding never explained his reasoning – and it was criticised by a subsequent judge on appeal – but the crown prosecutor defended the sentence, explaining, “The rehabilitative approach is to protect the community in the long term from reoffending.”
The 2002 Sentencing Act sets out the purposes of sentencing that judges must abide by. There are nine different criteria, including holding the offender accountable, providing for the interests of the victims and protecting the community. But a sentence could also “assist in the offender’s rehabilitation and reintegration”. The act does not tell judges how they should weigh these criteria nor what they should do if they contradict each other.
The data from Corrections shows very clearly that first-time offenders who are sentenced to home detention have a lower recidivism rate than those sent to prison. At a 2022 sentencing for a similar case – an Auckland-based teenage sex offender who received home detention – the judge cited expert advice warning that a prison sentence would see him learn from older, more experienced offenders, concluding, “I don’t want to see you back here as an older offender much more skilled in … committing sexual violence”.
A judge prioritising rehabilitation over incarceration is clearly in line with the act. But home detention was supposed to be restricted to low-risk offenders with sentences of less than two years, and the minimum sentence for rape is six years. How can someone sentenced on four counts of rape and with a medium risk of reoffending be eligible?
In 2019 a Court of Appeal case – Zhang v R – ruled that during sentencing, “social, cultural or economic deprivation that has a demonstrative nexus with the offending may be presented in mitigation”. This means offenders coming from deprived backgrounds – as documented in cultural reports submitted to the court – were eligible for sentence discounts. The ruling led to the rapid proliferation of cultural submissions in criminal sentencing: eight cultural reports were written in 2017, 2500 in 2022. Judges can apply deprivation discounts cumulatively, on top of discounts for remorse, youth offending and guilty pleas, reducing total sentences by up to 70%.
Ruth Money has spent the past 13 years working as a victims’ advocate, a voluntary role supporting survivors of sexual assault and the families of murder victims. “For every $100 the government spends on the justice system,” Money says, “50 cents goes to help victims.”
Money doesn’t believe everyone should go to prison but serious violent and sexual offenders should, and she feels that in the current environment “there’s a political will … a feeling within the system, the judiciary and the court”, to lower the prison population by discounting sentences. “I was at a sentencing recently. A serial sex offender. The judge discounted the prison sentence to 26 months, and then told the offender, ‘I’ll give you another two months off because of Covid delays. So now you’re eligible for home detention.”
She believes the system is so much worse now. The courts are hopelessly backlogged and sentencing is broken. “Every day I am dealing with survivors who want to pull out of the process because it takes so long.”
A few days before speaking to the Listener she attended the sentencing of two of New Zealand’s most notorious sexual offenders, a pair who engaged in group sex with intoxicated 14-year-old girls, penetrating them with foreign objects, filming the acts and posting them on social media. The pair received home detention: 11 months and seven months respectively. The judge awarded them both permanent name suppression. A statement by one of the victims said, “I feel as though evil goes unpunished and that society has discarded me.”
History always repeats
In February 2021 research company Ipsos found in one of its regular surveys only 18% of respondents cited crime/law and order as their most important issue, and 42% had confidence in Labour to manage it. But by May this year, the percentage most worried about crime was a record 40%, and those with confidence in Labour to manage it had declined to 23%. It is election year; violent crime and property crime are surging.
On July 20, 24-year-old Matu Reid, carrying a shotgun, entered the construction site where he worked in downtown Auckland. He killed two people and wounded 10 more before dying of a self-inflicted gunshot wound. He was nearly the same age as William Bell; he used the same weapon, and, like Bell, had previous convictions for violent offending. In light of his background, youth and remorse, the judge had discounted Reid’s sentence from three years in prison to five months’ home detention, telling him, “I do not want to send a young man like you, with a limited history, to prison. I think it would be counterproductive and actually set you down the wrong path.”
In the aftermath of the attack, National and Act hammered Labour as soft on crime. The opposition parties have spent the year vowing to get tough: Act will abolish cultural reports and try 17-year-olds as adults. National will reinstate three strikes and prevent judges from applying sentence discounts greater than 40%. And it will bring back boot camps, a policy trialled under the John Key government which was abandoned after the recidivism rates were even higher than prison. Gilbert dismisses them as a “way to make young crooks a bit stronger and a bit fitter”.
The window closes
During its chaotic second term, Labour cycled through four justice ministers. The reform programme slowly died. In mid-2022 the prison population began to climb.
For Gilbert, the window of opportunity for change opened by Bill English in 2011 is all but closed. Gilbert also sat on the justice advisory committee but eventually resigned. “There was an understanding that prisons weren’t working but no credible alternatives. The void was never adequately filled. A lot of people on the left have simply just swapped the slogan ‘get tough on crime’ with other meaningless slogans. And the reason for that is that this stuff is incredibly hard.”
For Gilbert, real reform happens much earlier, in the schools and health system and via targeted interventions in early childhood, rather than the prison system. “And the time frame is generational. It’s gonna be 15 or 20 years before you see real results. Fiddling around the edges after the fact is a hiding to nothing.”
When asked for comment on the settings around sentencing laws, Justice Minister Ginny Andersen said it wasn’t appropriate for her to comment on sentencing but noted the government had recently introduced a bill to strengthen legislative settings related to family and sexual violence.
Chester Borrows died of cancer in February. The final report of the Abuse in Care inquiry has been delayed because of the volume of evidence. And the prison population continues to rise.