To put the preliminary proposals into context, this chapter provides a general picture about the level of crime experienced by New Zealanders, and particularly the level of Māori victimisation; the core principles underpinning New Zealand’s criminal justice system; and the key provisions and principles of the Victims’ Rights Act 2002.
The New Zealand Crime and Safety Survey 2006 (NZCASS) provides an estimate of the level of crime experienced by New Zealanders aged over 15 years in 2005. Victimisation surveys such as NZCASS help provide a fuller picture of the actual level of crime, because they also include an analysis of offences that are not reported to the Police, rather than only those offences that are reported and progressed through the criminal justice system that are captured by administrative data.
The NZCASS Key Findings report indicated that in 2005:
- Four in 10 people experienced some form of victimisation.
- There were an estimated 2,753,000 household and personal offences in New Zealand committed or attempted against those aged 15 and over.
- Assaults made up one-quarter of all offences, and threats just over one-fifth. Together these two offences made up nearly half of all victimisations measured by the survey.
- One-third of all offences were reported to the Police. Reporting rates varied by type of offence.
- Six percent of victims experienced 51 percent of the victimisations, or 13 percent experienced 71 percent of the victimisations. There was a concentration of risk among the less economically and socially well placed. Risks were consistently high for: young people, sole parents, those who were unemployed and/or on a benefit, those living in rented property, and those who lived in the most deprived areas of New Zealand.
NZCASS also found that those participants who identified as Māori had a higher risk of victimisation across all offence types and this was especially so for Māori women. Overall, 47 percent of Māori were victims of crime, compared with 37 percent for those categorised as European. Māori were also more likely to be victimised multiple times (4.3 incidents per victim compared with 2.7 for European victims). The risk of victimisation for Māori was particularly high for serious offences, including sexual violence and violence by partners. For example, 8 percent of Māori women experienced sexual victimisation - which was twice as much as that experienced by all New Zealand women (4 percent). Eighteen percent of Māori women who had a partner were victimised at least once, compared with 5 percent of all Europeans.
A number of risk factors present in the Māori population contribute to this risk, such as having a young population and living in the most socially disordered or economically deprived areas. Like other disadvantaged populations, a majority of offences against Māori were not reported to the Police and a large proportion of Māori were unable to name any community service that was available for victims.
Another indicative source of the level of crime is the official national crime statistics. Official crime statistics provide a record of all offences that are recorded by the Police and the number of cases that move through the courts.
Statistics for 2008 show a total of 431,381 offences recorded by the Police. Of those, 336,865 charges were prosecuted in court and 228,379 charges resulted in a conviction. As violent offences are included as “certain offences” under section 29 of the Victims’ Rights Act (see paragraph 21) we particularly note that there were 21,490 serious assaults, 5,125 grievous assaults, 109 homicides and 3,705 sexual offences recorded in 2008.
In the same year, 10,143 offenders were given custodial sentences or home detention and 30,206 given community sentences. For violence and sexual offences, 2,832 were given custodial sentences including home detention, and 5,498 were given community sentences.
These statistics show that a significant number of people are victimised in a given year in New Zealand. It is these New Zealanders and others directly affected by crime who are the focus of this consultation document.
The criminal justice system consists of three parts: law enforcement (the Police); the corrections system (which includes ensuring convicted offenders complete their sentences, maintaining the prisons, and providing for the parole of offenders); and the courts. Broadly the role of the courts is to ensure the law, made by Parliament, is applied and upheld.
Criminal law is concerned with actions which are defined by law as “crimes” because they are generally seen as being dangerous or harmful, not only to private individuals but to society as a whole. This is one of the reasons why the prosecution of criminal offences is pursued by the State rather than by the individual. Another reason is to avoid citizens taking the law into their own hands.
Breaches of the criminal law make the offender liable for penalties that may include a loss of liberty - sometimes for a long time. The seriousness of the consequences of being convicted means that it is essential that the guilt of the person is proven beyond reasonable doubt and that due process is followed.
When reviewing how criminal justice agencies could improve their responsiveness towards victims we were careful to ensure that any proposal was consistent with the principles under which our criminal justice system operates. These principles are important to all of us as they function both to protect citizens and communities, and to protect individuals from wrongful conviction and from abuses of power by the State.
The most important principles or features relevant to the role of victims are largely related to criminal court and sentencing processes. The relevant principles or features include:
- That the guilt or innocence of an accused is decided in an adversarial court proceeding. An adversarial system requires the prosecutor, acting on behalf of the State, and the defence lawyer, acting on behalf of the accused, to offer their version of events and argue their case before an impartial adjudicator (judge and/or jury). The prosecutor, representing the public interest, presents the evidence intended to prove the guilt of an offender beyond reasonable doubt. It is important to emphasise that prosecutors do not represent the victim, in the same sense that defence lawyers represent the accused in order to defend him or her in respect of the charges they face. Finally, it is the Judge’s function to ensure that the court case is conducted in a manner that observes due process, to decide whether the defendant is guilty beyond reasonable doubt (except in jury trials where the jury performs that role), and to decide the sentence.
- That people charged with an offence are entitled to the rights provided for in the NZ Bill of Rights Act 1990 in regard to criminal procedure. These rights (amongst others) include the right: to a fair and public hearing by an independent and impartial court; to be tried without undue delay; to be presumed innocent; not to be compelled to be a witness or to confess guilt; to be present at the trial and to present a defence; and to examine witnesses for the prosecution.
- That every decision relating to the conviction and to the sentence made by a Judge may be subject to an appeal.
This review of victims’ rights will not affect these principles discussed in paragraph 14. Another important feature of the criminal justice system is the constitutional role of prosecutors. A discussion about the constitutional role of prosecutors in New Zealand is provided on pages 24-27. Although this consultation document proposes further requirements on prosecutors the proposals will not change the current constitutional responsibilities imposed on prosecutors.
The sentencing process
The Sentencing Act 2002 outlines nine purposes of sentencing and 10 principles that must be applied by the courts when sentencing. The two purposes relevant to victims are to hold the offender accountable for harm done to the victim and the community; and to provide for the interests of the victim of the offence. The most relevant principles of sentencing include (amongst others) a consideration of the gravity of the offending, the imposition of a penalty near the maximum if the offending is near to the most serious of cases for which that penalty is prescribed, the need to maintain consistency with sentencing for similar offending, the effect of the offending on the victim, and the imposition of the least restrictive outcome that is appropriate. The Sentencing Act also lists aggravating and mitigating factors that may be taken into account when sentencing.
The Sentencing Act provides general guidance of appropriate sentences. For example, it includes a presumption in favour of reparation, so that victims may be compensated; and a presumption in favour of the use of fines as the principal sentence where they are sufficient punishment for the offending.
Judges receive a range of reports on which to base the decision about how to sentence an individual offender, for example, from the defence counsel, the Department of Corrections, and any other agency who has been asked by the court to provide an assessment (for example, from a forensic nurse or an alcohol and drug addiction assessor). The Judge also receives the Victim Impact Statement.
The provisions of the Victims’ Rights Act 2002 (the Act) were built on, and are consistent with, the current criminal justice system laws and processes, the principles outlined above, and the rights provided for in the New Zealand Bill of Rights Act 1990. The Act provides principles that guide the treatment of victims, and is the principal law for victims’ rights in New Zealand.
The Act defines a victim as a person who has suffered harm (ie, physical injury, or loss of, or damage to, property) from an offence committed by another person. The definition of a victim includes parents of child victims and close family members of a person who is murdered or made incapable. For the purposes of sections 7 and 8 of the Act (about treatment and access to services), the definition of a victim also includes a person who has suffered emotional harm as a result of an offence.
Under the Act, victims are to:
- be treated with courtesy and compassion and with respect for their dignity and privacy
- have access to support services and to be informed by government agencies about programmes, remedies and services available to them
- know what is happening with the case involving them and what decisions are being made on their behalf. Investigating authorities, court staff and prosecutors must give information to victims about the case proceedings
- be able to request that the release of their contact details in court is restricted, and have input into an application by the accused for name suppression
- have the opportunity to provide information about the impact of the offence (in the form of a Victim Impact Statement), to be submitted to the judicial officer sentencing the offender
- be able to complain if they believe their rights have not been upheld. Victims may complain directly to the relevant agency, the Ombudsman, the Independent Police Conduct Authority, or to the Privacy Commissioner, depending on the nature of the complaint.
Victims of serious crime
While the provisions of the Act relate to the treatment and rights of victims of crime generally, the Act also provides under section 29 further rights for victims of certain offences. These “certain offences” are sexual violation or other serious assault; an offence resulting in serious injury or death; or an offence that has led to the victim having ongoing fears on reasonable grounds for the physical safety or security of themselves or their immediate family. Under the Act, these victims can also:
- provide their view on whether the defendant is bailed and whether the prisoner is paroled
- receive notification of certain events related to the defendant or the offender, such as the defendant’s release on bail, and any temporary release, escape from, or death in custody.