Violent crime-—is Parliament sending conflicting signals?

Press, 7 October 1988, Page 8

Violent crime-—is Parliament sending conflicting signals?

Barry Wilson,

barrister, president of the Auckland

Council for Civil Liberties, on sentencing policy

HOW DOES the State best protect its citizens from serious violent offenders — by rehabilitating them or sending them to prison? At present Parliament is sending the courts a series of contradictory signals. Recently, the Court of Appeal resolved that contradiction in a way which neither protects the public nor reforms the offender. In 1985 the Criminal Justice Act brought together a special range of sentences for crime — supervision with conditions as to residence, counselling and job training; community service; and community care. At the same time it directed that in principle, offenders using serious violence should be sent to prison unless there were ‘‘special circumstances” which made that sentence inappropriate. In the end it was the sentencing judge, having all relevant matters before him, who was best able to decide the right sentence. Last year Parliament further emphasized sending violent offenders to prison when it passed the Criminal Justice Amendment (No. 3) Act — often called the “Violent Offenders Act” — which strengthened the direction to the courts that serious violent offenders should be imprisoned, thus lessening the area of discretion open to the sentencing judge to impose alternative community- based sentences. It is only recently that Parliament has recognised what criminologists have understood clearly for years, namely that all the statistics quite clearly show that

prison inmates, released back into society, will almost invariably reoffend. That is why the law' changes in 1985 emphasized keeping offenders out of jail. However, the prison population has swollen dramatically. On August 5, 1986, it stood at 2778. Just two years later it stands at 3404. This is largely as a result of our tougher laws on violent offending. To talk then of protecting the public by sending a violent offender to jail is meaningless. Sooner or later those offenders will be released back into the community only to reoffend in the same way. The widely publicised case of Taffy Hotene, a severely disturbed youth aged 17, sentenced in July to four years imprisonment by the Court of Appeal, illustrates the courts’ dilemma. Hotene was convicted of attempted sexual violation. He had walked into the home of a complete stranger. Knowing the woman was alone he had held a knife close to her face and close to the head of her ten-month-old baby. Later he told the police he was looking for a woman to rape. The reports to the court showed that Hotene had a turbulent sometimes violent childhood. He had been in and out of Social Welfare homes since he was eleven. Early on he had gone off the rails in his sexual behaviour. In 1987 Hotene was imprisoned

for 15 months for a similar offence of attempted sexual violation. On that occasion the judge recommended that Hotene be given intensive counselling in prison. Amazingly, nothing was done because suitable counselling was not available. Inevitably, three months after he was released, he had reoffended in the same way. This time Hotene was examined by a psychiatrist who said he was developing a paranoid personality and had the potential for paranoid schizophrenia. He recommended remedial education and help from a psychologist. He referred to the probable adverse effects of imprisonment.

The Probation Service recommended Hotene be sentenced to two years supervision — on condition that he live and work with the New Zealand Legionnaires Academy in South Auckland. The Legionnaires, run by Dan Davis and his wife, aims at providing a disciplined training system along army lines for young people to enable them to integrate back into the community. There is a strict daily routine and a strict code of conduct based on individual responsibility and discipline. Dan Davis’s success has been spectacular. Since 1985 when the Academy began, more than 500 young people have been referred to it. Not one of them has

reoffended after their return to the community. In the High Court, the sentencing judge, after a very careful and thorough review of the case, adopted those recommendations of the probation officer, and another that he undertake psychological sexual therapy — an obvious direction for a young man who had shown himself quite incapable of forming relationships with girls — or indeed, anyone. The judge, recognising the risk to public safety that Hotene posed, told him, “On the one side the duty to the public requires I treat you in such a way that you are not a danger to the community. On the other hand, the sheer dictates of humanity require that you are given the chance to become an effective and useful citizen and not a person who will eventually descend into the depths of mental disorder and consequently spend long periods in a mental institution or prison.” The judge was satisfied that Hotene would be monitored for the whole time he was living in the community and that the Academy would do its utmost to stop him leaving on his own. The Crown appealed against that sentence. By the time the case reached the Court of Appeal, Taffy Hotene had been living with the Legionnaires for two months. He was learning to

read and write for the first time and was generally making good progress. The Court of Appeal judges took a different view. They felt there was a greater risk to public safety under supervision, than with a prison sentence “even if in the long run society as well as the individual concerned may benefit from the results of the programme.” The Court of Appeal, in substituting a sentence of four years imprisonment, was simply responding to the direction of Parliament. The result was a bad one.

The Court of Appeal did not define “special circumstances.” However, it will now be a brave sentencing judge who will direct a serious violent offender to a rehabilitative environment — even if the facts of the case cry out for remedial treatment. If Taffy Hotene’s case does not amount to “special circumstances” it is difficult to know what case does. A better approach is the one giving the sentencing judge full discretion. A prison sentence put an end to all ideas of rehabilitating and socialising Hotene. His acute problem will remain. On past performance, he is likely to be back before the Court soon after his release. The danger to the public will be as great as it was before he returned to prison.