Bail is usually given, regardless of severity of crime and strong police opposition to the granting of it, and on many occasions this places the New Zealand public at risk of physical and emotional harm or death.
SST wants the following changes:
- 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.
All “three strike” offences (such as murder, rape, kidnapping) carry a maximum penalty of at least 7 years imprisonment. They are the most serious violent crimes in NZ law. If a person has breached the trust of society previously by committing a “three strike” offence while on bail, we consider they represent too high a risk to be entrusted on bail again if charged by police a second or subsequent time for a “three strike” offence.
- 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.
Judges should not take a cavalier attitude to the genuine concerns of victims. The rights and concerns of victims should be respected and given proper consideration by a Judge in making a decision whether to grant bail. The judge who presided over granting bail to Christie’s alleged kidnapper and murderer, did not even read the letter Christie wrote, in which she pleaded for bail not to be granted and laid out the nature of the personal threats made against her by the alleged kidnapper and murderer. If the Judge was required to give her letter particular regard, this tragedy may have been avoided.
- 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.
Under the “three strikes” sentencing law that was passed in 2010, a person receives a “strike” (and warning from the judge) against their name at the point they are convicted of a “strike” offence. However, as has been tragically demonstrated in Christie’s case, because the person charged with her kidnapping (which is a “strike” offence) hadn’t been to trial and therefore convicted of that offence at the time he allegedly murdered her, even if he is ultimately convicted of both the kidnapping and murder, he will avoid the “strike” sentencing regime.
In the case of murder as a second strike, that would have meant a sentence of life without parole if he is convicted. As it stands, if convicted, he will likely get a “regular” sentence for murder, which has a starting point of just 10 years. We think that is a gross injustice to Christie and any others who are offended against by a person committing a serious violent offence while on bail.
We propose changes to the system so that a person granted bail while charged with a “strike” offence, be given a “provisional strike warning” by the Judge, so that if ultimately convicted of the offence, repeat serious violent offenders receive escalating sentencing consequences for subsequent offences, regardless of whether committed while on bail or at large in the community. If the person is acquitted (found not guilty) of the charge or the police drop the charges, then the “provisional strike warning” would be struck out and have no continuing effect.
- Removal of the strong presumption in favour of bail for persons under 20 where previously convicted of an offence punishable by imprisonment.
Where a person under 20 has already been convicted of an offence punishable by imprisonment, we consider that good cause to remove the presumption that bail will be granted. The Judge should make their decision on granting bail as they would for any other person, based on the facts and circumstances of the bail application, rather than be directed primarily by the age of the alleged offender. The Bail Amendment Act proposes that this presumption only be removed if the person has actually been imprisoned previously.
We think that is too high a test, as the Sentencing Act already specifies that imprisonment is a last resort once all other possible sentence types have been considered. We believe that a prior conviction for an offence serious enough to be punishable by imprisonment is a fair test for the presumption that bail will be granted, to be removed, and for the facts and circumstances of the bail application to prevail.
- Conduct an annual review into serious breaches of bail and serious crime committed while on bail, and reported to the Minister of Justice and publicly available.
An annual review would allow the justice system and politicians to say “in touch” with the latest developments in bail decisions, and make prompt changes where problems are identified rather than allow such issues to languish for years without being addressed.
- Police should have powers to appeal bail decisions equal to those the defence has.
The Bail Act should be amended to make clear that at all stages of bail proceedings, the Police have the same rights of appeal that the defense have. This is not clear in the current law.
- Implement a “risk assessment tool” to assist Judges to make well-informed bail decisions.
We understand that no standardised risk assessment tool is available to assist judges to make their bail decisions, and this allows for inconsistent and ill-informed judgments. We understand that the Department of Corrections uses a form of risk assessment tool in assessing how they will manage inmates and their security classification. We believe a similar approach may assist judges to make sound, informed, and consistent bail decisions.
- Implement practical methods of increasing judicial accountability for bail decisions, such as internal bench-marking of Judges’ performance and assistance for poorly performing Judges.
Judges’ decisions and performance remain insulated from scrutiny, despite those decisions having potentially fatal results when they are wrong. We think the Minister of Justice should direct her ministry to implement a system of internal bench-marking and performance review, drawing on any models that may operate in other jurisdictions.
- Serious breaches of bail to be addressed by a presumption of imprisonment, rather than fines, which are ineffective, inconsistently applied and rarely paid.
Serious breaches of bail should be accompanied by serious and enforced penalties. Fines, even when imposed, are often not paid, and not fully enforced by the Ministry of Justice’s Collections Unit. It undermines the justice system for bail breaches (ignoring a Judge’s conditions) not to be properly penalised. The presumption should be changed to that of short-term imprisonment for serious breaches of bail to reflect the seriousness, and enforce that penalties are real.
- Offences committed while on bail should be sentenced cumulatively, rather than concurrently as they generally are at present.
Currently, if an offence is committed whilst on bail, any sentence imposed is generally served at the same time or “concurrently” with any other offences the offender is convicted of for which he or she was granted bail. Therefore, no additional penalty can be expected for additional offending whist on bail. We think this is unjust, and does not provide a deterrent to offending whilst on bail. Every crime committed is real, has its own victim/s and should be accompanied by its own punishment.
Further comments on bail
In 81 percent of cases where the primary charge is for a violent offence remand on bail is granted. Yet this is the case for only some 31 percent of traffic offenders and 64.2 percent of property offenders. And the percentage of those charged with a violent offence that are bailed has actually risen, from 78.7 percent in 1994 to 81.4 percent in 2003, the last year for which figures are available. We have no reason to believe there has been a sharp drop in the interim.
Unsurprisingly given this remarkably counter-intuitive approach taken in the granting of bail, the rate of offending on bail is high, varying between 16.5 and 22.2 percent over the period studied.
All this data is available in a report “Trends in the use of bail and offending while on bail 1994 to 2003” by Barb Lash of the Ministry of Justice. Unfortunately it is not yet available online, however an earlier version Trends in the use of bail and offending while on bail 1990-1999 is available.
The problem with bail, particularly where violent offenders are involved, is that once someone is already facing charges for one offence they may well have very little to lose by committing further offences, especially given the widespread use of concurrent rather than cumulative sentences in our Justice system. Offenders that are highly likely to be convicted have little incentive not to offend further under such circumstances.
The result is inevitable; offenders that are bailed despite police objections re-offend. Examples include the teenager who murdered North Shore pensioner Doreen Reid, an offender whose name is currently suppressed who abducted and raped a 15 year old girl in 1997 while on bail for the rape of a 24 year old woman, Paul Bailey who raped and murdered 15 year old Kylie Smith while on bail for attempted rape in 1991, and Philip Curriewho raped and assaulted an autistic intellectually handicapped woman in Palmerston North in March 2005 while on bail for offences including assaulting a female
But wait…. there’s more…. Natalie Fenton murdered a South Auckland man in the course of a home invasion on April 1, 1999.while on bail for armed robbery. More recently, Sean Harding stabbed a Marewa, Napier woman in her home in October 2004 in front of her children while on bail for other offences, and Stephen King (NOT the famous author!) murdered his partner with an axe in January 2004, ….and yes, he was on bail, despite his 150 previous convictions!
Five percent of offenders on bail for violent offending commit further violent offences while on bail. While this may seem low, consider that the time periods concerned are often quite short, weeks or even days in some cases. Given this fact, it would seem circumspect to remand those facing violent or sexual offending charges in custody, where their opportunity for further offending is far more limited, and will not involve members of the public. This is especially the case for offenders for previous convictions for violent offending, and those where the Police oppose bail – almost inevitably with extremely good reason too.