SST's Name Suppression Policy
At present, anyone charged with a criminal offence and awaiting trial or sentencing may apply to the court for an order suppressing publication of their name (with the exception of those convicted on alcohol or drug-related offences).
Judges can exercise their discretion to order name suppression depending on the submissions presented to them.
The Court may grant a temporary order preventing publication of an offenders name for a limited period of time or may grant a permanent order.
There have been far too many examples to list here of offenders hiding behind name suppression because they are up and coming sports people or that should their identity be publically available it would ‘disadvantage’ them or their family in some claimed way.
SST’s firm position is that there should be NO permanent name suppression granted unless the complainant or victim requests and/or agrees to it. Sadly, while there are good grounds in many familial sexual assault cases for name suppression to be granted, we also propose that if the relationship between the offender and victim is never published, the offenders name does not need to be suppressed after conviction (everyone is innocent until proven guilty) which would help a) the offender become responsible for their actions, b) the public to be aware of the offenders behavior and c) the likelihood of other previous victims to come forward.
SST's Restorative Justice Policy
While SST believes that there is a place for Restorative Justice in the Justice System, there are some caveats.
- It should be victim driven, rather than offender driven, and focus on the offender having an obligation to their victim to try and repair the harm done by their crime.
- It should always take place post-sentence rather than pre-sentence, and therefore will not be taken into consideration as part of sentencing, and cannot be rushed through prior to sentencing just to earn a sentence reduction.
- Restorative Justice meetings are combined with and only occur in conjunction with rehabilitation programmes at the end of a sentence.
- It has no influence on parole hearings – no reports are `submitted to the parole board regarding restorative justice meeting outcomes when considering release.
- No person with a serious criminal record should work in Restorative Justice as a facilitator or in any other voluntary or paid capacity. Everybody must be screened and full Police checks carried out, along with mandatory training.
All of the above are characteristics of the very successful and highly regarded Restorative Justice system in New South Wales, which has not been plagued with some of the problems experienced here in NZ. For example – click here
Difficulties associated with pre-sentencing restorative justice were noted by Judge Fred McElrea in a paper presented at the 11th Annual Restorative Justice conference in September 2005
Of course the role of the victim is at the heart of restorative justice. The constant tussle has been to overcome the inherent bias towards offender’s interests in the mainstream system….However, so long as restorative justice is tied to sentencing, it cannot be victim driven.
We believe that in 99% of cases, Restorative Justice should only apply in situations where it is possible for the victim to have restored to them whatever they may have lost as a result of the offence eg: the theft of a bicycle or a TV or damage to a mailbox or car. In the case of serious violent and sexual crimes, obviously no person or agency can restore life, nor can they remove the major psychological damage resulting from offences such as rape or a serious assault. For this reason we believe that restorative justice is inappropriate for violent offences, as the losses are primarily those of peace of mind and confidence in being able to go about one’s lawful business safely, rather than direct financial losses. There are often also losses that are of a medical nature, also unlikely to be able to be restored by an offender.
Only if a victim explicitly requests restorative justice should it ever be applied to violent offenders.
SST's Three Strikes Policy
Having endured numerous cases of heinous crimes committed by repeat offenders, New Zealanders increasingly expressed a desire for tough sentencing laws for repeat violent and sexual offenders. SST worked tirelessly for the introduction of a Three Strikes policy into New Zealand law. We achieved this in 2010 and will continue to advocate strongly to ensure this key policy is maintained in the future.
How does ‘Three Strikes’ work?
New Zealand’s version of ‘Three Strikes’ took effect on 1st June 2010.¹ From that date forward, offenders convicted of one of the 40 specified serious offences in the schedule², all of which are serious violent or sexual offences, and all of which carry a maximum term of imprisonment of seven years or more, receive a ‘strike’ warning.
The offences subject to ‘strike’ warnings range from murder, manslaughter, sexual violation and kidnapping at the most serious end, to robbery, indecent assault, wounding with intent to injure and assault with intent to rob at the less serious end.
Youth offenders are excluded. A strike can only be entered for an offence committed by a person aged 18 or older. But once entered, the strikes remain on the offender’s record unless the conviction is quashed. The strikes stay with the offender as a constant deterrent against future offending, and increasingly tough sentences if the offender is unwilling or unable to refrain from serious offending.
What happens at each ‘strike’?
Upon conviction for a first strike offence, the normal sentence the Judge considers fit is handed down, and the offender is given a warning of the future sentencing consequences of another ‘strike’ conviction.
Upon conviction for a second strike offence, again the normal sentence the Judge considers fit is handed down – but parole or early release is not available. If the Judge says four years imprisonment, then four years it is. Parole is normally able to be applied for after just 1/3rd of the Judge-ordered sentence is completed – but the second strike rule does not allow this, as the full term must be served. An offender convicted of murder as a second strike will be subject to ‘Life imprisonment without parole’ as ‘Life’ is the mandatory sentence for murder, and second strike sentences must be served without parole, unless ‘manifestly unjust’. The offender is given another warning of the future sentencing consequences of a further ‘strike’.
If the offender is unwilling or unable to refrain from committing a third strike offence, the Judge is required to impose the maximum sentence available in law for the offence committed. That sentence will be served in full, without any parole or early release. For example, if the third strike offence is ‘aggravated robbery’, an offence which carries a maximum of 14 years imprisonment, the offender will serve a full 14 years imprisonment. If the third strike offence is ‘wounding with intent to injure’, the offender will serve seven years, as that is the maximum term for that offence. For murder it would be life imprisonment without parole, as life is the maximum term for murder.
What about unusual offending circumstances?
New Zealand’s Three Strikes law allows the Judge to depart from the mandatory maximum terms of imprisonment without parole or early release at the third strike stage in rare and limited circumstances where the Judge is satisfied that to impose the maximum penalty without parole would be ‘manifestly unjust’ given the circumstances of the offence and/or the offender. This is a high threshold, but allows rare or unusual circumstances to be taken into account in allowing a lower sentence.
How does Three Strikes in New Zealand differ from the approach in the USA?
SST always advocated for a form of Three Strikes that targeted only serious violent or sexual offenders, not minor crime. Three Strikes in New Zealand can be colloquially referred to as ‘Three strikes and the max’ whereas most USA versions can typically be referred to as ‘Three strikes and you’re out’.
There are varying approaches in the USA. Some states have a Three Strikes sentencing law, others do not, although most have increasingly tough sentencing rules for ‘habitual offenders’. The most common approach in US states is to apply a sentence of ‘25 years to life’ for a third strike offence, which typically has to be a ‘felony’ offence (a serious crime). This means the offender would typically serve a minimum of 25 years before being eligible for parole.
Until 2012, the Californian version of Three Strikes was the toughest in the USA. Too tough in SST’s view. Until being amended in 2012, the Californian version allowed a ’25 years to life’ sentence to be imposed for a minor offence such as shoplifting, car theft or common assault. The Californian version now requires the third strike offence to be a serious felony offence to qualify for the 25 years to life provision.
It is the ‘max’ provision at the third strike stage of the New Zealand version of Three Strikes which provides the degree of proportionality between the offence committed and the sentence handed down at the third strike stage. The maximum sentence for the offence committed is handed down, rather than a blanket 25 years to life. It’s still very tough, as it is meant to be, but not excessive.