OPINION

Shockingly, Parliament sat for the second reading of the Legal Services Amendment Bill last week, which will see the end of legal aid funding of section 27 pre-sentencing reports.

It comes just months after
the release of the Ministry of Justice regulatory impact statement that said the impact of scrapping funding for reports hadn’t been considered. It also said there were gaps in the qualitative and quantitative data addressing their use and effectiveness.

The bill was progressed under urgency, and Justice Minister Paul Goldsmith told the House he accepted there may not be unanimous support but the Government remained convinced it was “necessary to rebuild the confidence in the justice system and public spending”.

“It sends a signal that this Government is careful with its money; secondly, it is taxpayers’ money that we’re careful with; and, thirdly, we’re going to instill real consequences for crime,” he said.

To start, it seems bananas the focus has been on cutting legal aid funding despite frequent cries from the legal profession to improve what’s described as a broken, grossly underfunded system.

This was the case even after the Labour Government promised an increase of $148.7m in legal aid funding over four years in 2022. I’ve previously harped on about the problems associated with raising legal aid hourly rates for lawyers by 12 per cent, which realistically only affected 8 per cent of legal aid work, for example.

Back to the reports. The Law Society came out swinging, with president Frazer Barton saying the change would increase barriers to justice for people who couldn’t afford to privately pay for reports.

“Those who can afford this would then have a greater level of representation in court than those receiving legal aid. That is a significant breach of fundamental rights,” he said in a statement.

Likewise, NZ Bar Association president Maria Dew, KC, said in a statement there were significant risks the move would make it harder for judges to impose appropriate sentences, undermine rehabilitation, and adversely impact reoffending rates.

No offending exists in a vacuum

Those in favour of the changes might argue the reports attempt to “excuse” crime. Visa versa, no man is an island, and no offending exists in a vacuum.

Ministry of Justice (MoJ) data suggests 77 per cent of the prison population have been victims of violence, for example. Fifty-three per cent of women and 15 per cent of men in prison have experienced sexual assault in their lifetime.

AUT law school associate professor Katey Thom told me the reports aid judges in assessing the best rehabilitative pathway for offenders, which ultimately enhances public safety.

In a five-year study released in October, one participant said drug use eased the pain of the grief, loss, and feelings of disconnection from their biological family, for example.

“Anything that I could get to fill the loneliness of what had happened to me in the CYFS home, and my dad not being there and my mum being in prison … so yeah, it was quite messy,” the participant said.

Thom also said experiences of financial, social, and cultural poverty were causally related to offending and the use of mental health and addiction services.

The research highlighted “the impact of people being deprived of access to the basic needs of housing, food, school, and connection to their culture and communities. If we took eradicating poverty action seriously, we would undoubtedly see more whānau and communities thriving”.

No reports, more delays

The Government has suggested in the absence of reports, offenders could call on people to speak in court on their behalf. The issue is two-fold: the claim assumes offenders have a support network available, and more oral submissions mean more court time.

Compare this to Goldsmith’s pledge to reduce court time delays, which have increased from 114 to 176 days for a criminal case in the District Court, and 359 to 498 days for a jury trial, he told the Herald.

He said he has entertained the possibility of introducing 25 per cent sentencing discounts for alleged offenders if they enter guilty pleas. There’s the issue of innocent until proven guilty and unduly restricting judicial discretion. Offering incentives that could see innocent people in jail is scary, to say the least.

Again, the most disenfranchised are adversely impacted; Canadian research suggested defendants on remand living in poor conditions or isolated from family were likely to enter guilty pleas to leave the situation, for example.

And lest we forget last year’s saga involving the Criminal Process Improvement Programme. It promised to reduce court delays and included a policy that would mean duty lawyers could get extra cash if their clients pleaded guilty. The legal industry screamed bloody murder, and the policy was pulled.

More prisoners, more costs, more offending

It gets worse. The Government plans to introduce legislation that will cap sentencing discounts at 40 per cent, which will be sure to delight the judiciary. Prison population reduction targets? They’re going, too. These cost-cutting exercises are short-sighted insofar as more jail time means more taxpayer money. We’re talking $150,000 a year for each inmate. It was $120,000 in 2018-19.

MoJ data suggests there are around 170 people in prison per 100,000 New Zealanders. The OECD average is 147 prisoners per 100,000 people. Just 15 per cent of the population are Māori, yet they make up 52 per cent of the prison population.

Jailtime begets jailtime where 56.5 per cent of people with previous convictions are reconvicted within two years following release, and 35.8 per cent are imprisoned after two years.

What does this all mean? It’s a case of scaremongering at best and having (or wanting) more money than sense.