Judges must decide on cases

Press, 7 October 1988, Page 8

Judges must decide on cases

The Minister of Justice, Mr replies

IN HIS article, Mr Wilson has taken a somewhat simplistic approach to the question of whether the prison system should punish or rehabilitate offenders. I cannot agree that Parliament has sent the courts “contradictory signals.” There is no conflict in passing legislation that has a virtual presumption of imprisonment for serious violence, but which also provides for community-based sentences for appropriate offenders. Mr Wilson relies heavily on just one case to illustrate his points. As a minister, it is not appropriate for me to comment on specific court decisions. However, Mr Wilson has exaggerated the extent to which judicial discretion has been changed either by the 1985 Criminal Justice Act

and its amendments or by the Court of Appeal in the particular case to which he refers.

New Zealand has always had a width of judicial discretion and it has always been the case that judges using that discretion over “special circumstances” or the like are aware that it could be tested in the Court of Appeal. It is an over-simplification to suggest that the Court of Appeal “simply responds to the direction of Parliament,” as Mr Wilson claims.

There is little doubt that Parliament recognises the negative consequences and nature of imprisonment. The Criminal Jus-

tice Act made that clear in establishing prison as a sentence of last resort for all but seriously violent offenders. But it is grossly superficial to reduce sentencing decisions to a choice between “rehabilitating them or sending them to prison.” Of course, it is also easier to recommend enlightened and successful community-based rehabilitation than to achieve it. One of the untold “good news” stories of criminal justice is the success of various community-based initiatives around the country. Nonetheless, there are also those that are less' successful, despite the initial enthusiasm and genuine

commitment of many people. It would, in any case, be an intolerable strain on communitybased programmes if judges routinely chose “rehabilitation” rather than prison for the seriously violent in the terms laid out by Mr Wilson. As the recent prison census shows, the New Zealand prison population is predominantly made up of people with backgrounds of severe personal deprivation and lengthy histories of offending, conviction, various sentences and treatment. Sadly, their behaviour is not easily changed, either inside or outside prison. Finally, while the Department

of Justice is well aware of the problems of attempting to rehabilitate people in a prison environment, it is not the case that people are simply “written off” while incarcerated. Indeed, apart from the traditional prison work of psychologist, chaplains, social workers and probation officers, new approaches to treating offenders are either in pilot schemes or being planned at the moment. Promising anger management projects are now being run for inmates, for example, while a sex offenders unit with an emphasis on therapy is being planned.