Bott: Toughening Up Parole or Principle Out The Window?

TOUGHENING UP ON PAROLE or LEGAL PRINCIPLE OUT THE WINDOW?

Michael Bott

Groan! The sight of a calendar has become depressing to me.

Everyday it seems our Government is doing something more to take us that step closer to a police state.

Yesterday our Justice Minister announced that she will be making parole eligibility tougher. Inmates will now have to acknowledge guilt to qualify for parole. Her press release said as follows:

"Offenders who refuse to accept their guilt, or make little effort at rehabilitation, will have fewer parole hearings, Justice Minister Judith Collins has announced.

The Government will amend the Parole Act to reduce the number of "unnecessary" parole hearings for offenders with little prospect of release. The move was part of National's post-election plan.

Collins said the change would reduce the number of parole hearings by about 800 a year. "For offenders who refuse to acknowledge their offending and have made little or no effort at rehabilitation, it makes no sense to hold parole hearings," she said.

"Future hearings will also be aligned with the completion of core milestones in an inmate's offender plan - agreed activities and goals that aim to reduce likelihood of reoffending."

What's wrong with that? Well for a start the fact of a conviction does not mean that a person is in fact guilty. The legal system is in fact a human system and it does occasionally get it wrong. One only need look at the cases of Arthur Allan Thomas, David Dougherty, David Bain as examples.

The other thing, shouldn't it be someone's right to say, "I am innocent, you might take away my reputation and my freedom, but I tell you I am innocent."The only rational reason to further punish someone for taking that stand by denying them parole is if that denial is in itself linked to risk of further reoffending while on parole.

Section 7 of our Parole Act, gets the balance right:

7 Guiding principles

(1) When making decisions about, or in any way relating to, the release of an offender, the paramount consideration for the Board in every case is the safety of the community.

(2) Other principles that must guide the Board's decisions are—

o (a) that offenders must not be detained any longer than is consistent with the safety of the community, and that they must not be subject to release conditions that are more onerous, or last longer, than is consistent with the safety of the community;

In other words if it is not related to risk, then there should be no problem with maintaining one's innocence. Even our Court of Appeal recognises that denial is not of itself indicative of risk. In R v Peta [2007] NZCA 28 they said:

[65] The next error was that the original health assessor treated Mr Peta's denial of the offending as an indicator of likely recidivism. Research has shown that denial of offending by itself does not operate in this manner. It is true that s 107F(2) of the Act includes the offender's acceptance of responsibility and remorse of past offending as a factor to be considered. Any denial of offending must be considered, however, in the proper context. While denial has not been found to be not predictive in itself, it may still be a matter that could contribute to an individual's risk by causing difficulties with willingness to undergo treatment. Thus, while denial is not a predictive factor, recognition of offending can be a protective one. Further, where combined with evidence of psychopathy and sexual deviance, denial of offending can be an important consideration.

Sadly the Minister of Justice chooses to ignore evidence and principle and instead wishes to use parole as a device to extract admissions of guilt. Former highly respected Australian Judge, Justice Kirby believes such thinking lacks integrity and is an affront to the dignity and conscience even of a convicted person. In Suresh v The Queen (1998) 72 ALJR 769 Kirby J (at 781) commented:

"Enforced admissions of guilt, as the effective price of liberty, are not normally a feature of criminal justice in Australia. Whilst an acknowledgment of wrongdoing in the undertaking of such courses may be useful in particular cases, the extraction of admissions by the prospect of early release from custody will often lack integrity and may affront the dignity of the conscience even of a convicted person. A better means of encouraging participation in the treatment course should, in my view, be considered. A discretion to accommodate the exercise of legal rights and also cases of conscientious objection … would be highly desirable, if not legally required."

It is recognised that there are a variety of reasons that an offender may maintain his innocence, even after conviction. This was recognised by the English High Court in Secretary of State for Home Department Ex parte Hepworth, Fenton-Palmer and Baldonzy and R v. Parole Board Ex parte Winfield, R v. [1997] EWHC Admin 324 (25th March, 1997), at paragraph 37 citing Ex p. Zulfikar (July 1995, unreported) :

But there may be a variety of reasons why a prisoner will not accept his guilt. He may genuinely have been wrongly convicted. Although inwardly he may know he is guilty, he may be unwilling to accept that he has lied in the past or confront loss of face in accepting what he has hitherto denied. Where, for example, the offence is one of specific intent, he may genuinely have persuaded himself that he did not have the necessary intent. Such a man may in all other respects be a model prisoner. He may have behaved impeccably in prison, occupied his time constructively and shown himself trustworthy and reliable with a settled background to which to return.

In Batts v Dept of Corrective Services [2002] QSC 206 the Supreme Court of Queensland stated, at paragraph 32:

Recognising the increased difficulty is, however, a long way from saying that because he has denied guilt a prisoner must be regarded as an unacceptable risk if released. To classify a prisoner as an unacceptable risk to the community merely because of a refusal to admit guilt is to apply a policy without regard to the merits of a particular case. I can find nothing in Dr Booysen's report to support a finding of a "high" risk of re-offending other than the fact he has not undertaken the treatment course. The conclusion of limited insight into the offending behaviour is based upon his failure to acknowledge guilt

It appears that Ms Collins is advocating a policy that can be rendered as: denial = no treatment = high risk = no parole. This appears to be arbitrary, unprincipled and not based upon research or international thinking. It represents a major departure from s7 of the Parole Act 2002 is a breach of the New Zealand Bill of Rights Act 1990:

25 Minimum standards of criminal procedure

• Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: o (d)the right not to be compelled to be a witness or to confess guilt:

And:

13Freedom of thought, conscience, and religion

• Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

Lastly:

23 Rights of persons arrested or detained

(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person

While we may argue about what s25 means in relation to "determination of the charge" it is deeply troubling that a Minister of the Crown should be advocating using access to parole as a tool to extract a confession. Further, she appears to be advocating the effective punishment of an inmate for holding to his or her belief that they are innocent. It will have a dehumanising effect, lacks integrity and is an affront to the dignity of the inmates concerned.

Lastly, isn't it richly ironic that a Government that beats the "lawnorder" drum and wants to be seen as being tough on criminals by toughening up parole eligibility, should rely for its majority to enact this legislation upon a man who police believe has broken the law regarding campaign donations, yet whom they can't prosecute as they are out of time? Surely for this Government to have any integrity they should lead by example first?

ENDS

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