Justice by other means?

The Editor of the Dominion Post newspaper has come out very strongly in favour of a legislative change that would ensure the continued imprisonment of  Stewart Wilson, the so called ‘beast of Blenheim’.

Wilson has served 18 years in prison, is coming to the end of his sentence, and under existing law must be released no later than September this year.

The Justice Minister, Judith Collins, has indicated that we will soon see before Parliament a bill that would make it possible to extend Wilson’s sentence, to keep him in prison despite the completion of his term.

The Minister denies there are any human rights issues, and insists that in any case the bill ‘will be assessed for consistency against the New Zealand Bill of Rights Act’. This is at best disingenuous – the Minister knows full well that even if a bill is deemed inconsistent with NZBORA it can be passed unhindered through the House.

Section 4 of the NZBORA states that :

  • No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—

    • (a) hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or

    • (b) decline to apply any provision of the enactment—

    by reason only that the provision is inconsistent with any provision of this Bill of Rights

This is a wholly unsatisfactory situation, and one that a private member’s bill in my name would seek to rectify if pulled from the ballot box, but it is the current law.

The Universal Declaration of Human Rights, in Article 11,  speaks plainly against “…a heavier penalty be[ing] imposed than the one that was applicable at the time the penal offence was committed”.

Wilson’s crimes were horrific, and if sentenced today he could be liable to a sentence of preventative detention, effectively an ‘open-ended’ sentence that would allow for his continued imprisonment.

To use the power of Parliament to retrospectively apply a heavier sentence is, however, a dangerous road to tread.  Parliament makes law which the judiciary then applies, and retro-fitting that relationship in response to a single case is rarely a good idea. This is especially true when there are existing remedies, other means to deal with any threat to public safety.

The Minister does of course have every right to present a bill, and doubtless a bill such as that being proposed will find some level of support both in Parliament and in the public domain. What the Minister must not do is push the bill through in haste, in any way that reduces the opportunity for the fully informed and balanced debate which is appropriate to anything that meddles with or potentially compromises our basic commitment to human rights and the rule of law.

It is when we as a society are dealing with the most beastly of human actions that we must take the greatest care to exercise our reason, our commitment to justice and proper process, our humanity. 

21 thoughts on “Justice by other means?

  1. The primary function of prisons/detainment is, or should be, public protection. This guy should not be released until we can know, beyond reasonable doubt, that he will not re-offend.

    The ‘human rights’ of the general public should come first.

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  2. So David, if your daughter or son was raped by this guy upon release, whose rights would you be upholding?
    Dogs get shot for sheep worrying. Just what should be done with people like this guy?

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  3. A very tricky question, David.

    While I agree with your position that our flawed legislative framework allows the primacy of parliament to enact punitive retroactive measures, which as you point out, flies in the face of the UDHR (among other international legal benchmarks), the public is unlikely to see it this way.

    I’m not sure (though feel free to correct me) that in this case, there are appropriate remedies available to ensure public safety that ironically, don’t infringe Stewart Wilson’s rights in the broadest sense (i.e. constant monitoring / surveillance).

    The probable option available would be to have Wilson declared mentally incompetent, essentially afflicted with a dangerous and severe personality disorder (DSPD) within the provisions of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MH(CAT)A).

    While this assessment essentially leads to a ‘double jeopardy’ scenario, there is precedent under R v Rameka (2003) 2 HRNZ 663 (UNHRC) which suggest that an assessment which leads to a sentence of preventative detention is not inconsistent with international human rights principles, and that “risk predictions in an indefinite detention context is relevant despite the case concerning the validity of the criminal sentence of preventive detention.”

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  4. Shame you prioritise this animals “human rights” above the human right not to be raped, of the women, children (and family pets) that this man will end up living beside.

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  5. @photonz1

    Shame you prioritise this animals “human rights” above the human right not to be raped, of the women, children (and family pets) that this man will end up living beside.

    This is probably one of the dumbest things you have said on this site.

    David has been abundantly clear that his position as an MP is a legalistic one where he is raising legitimate concerns around due process and sloppy legislation creating a ‘thin end of the wedge’, while his personal belief is that Wilson’s crimes are horrific.

    Shame on you for your pathetic strawman.

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  6. It would seem that extending somebodies sentence without a judgement that allows for this is highly undemocratic. The main problem in general is a trial by media whereby sound bites dictate the actions of ministers.

    There is no doubt that Wilson should have been rehabilitated by now. The fact that he may not be and there is still a risk to society is a clear indication that the prison system is failing to undertake its main duty, to rehabilitate prisoners to ensure the publics safety.

    Collins should look to repairing the costly and broken prison system so that it is more able to rehabilitate people than trying to usurp the court process at the behest of organisations like the Sensible Sentencing Trust.

    The sad truth of the matter is that National is building more jail cells than we will require and they are determined to maximize the profit of private prisons by ensuring they are fully stocked.

    I hold no faith in the current political system to ensure National will not push through retrospective law changes to increase the amount of inmates available. They are determined to increase private prison profits by increasing New Zealand’s already high incarceration rate, which will place further costs on society.

    I don’t think David was implying that a sentence of preventative detention is inconsistent with international human rights principles Gregor. Wilson was not sentenced to preventative detention, any application of law after the sentence has been handed down is in my opinion undemocratic.

    Despite what idiots like photonz1 believe, everybody has human rights. His eye for an eye justice system is doomed to fail.

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  7. @ Jackal

    Sorry, I should have been clearer.

    I’m not suggesting that DC thinks preventative detention is inappropriate or inconsistent with human rights principles.

    I am supporting his proposition that rather than rush through retro-active legislation, other options should be pursued; namely IMO, potentially exercising provisions under the MHA (1992) upon Wilson’s release, where there is no requirement that another crime need be committed but rather, a pre-emptive threat assessment might be mandated based on Wilson’s previous crimes, probably at the behest of the Attny Gen.

    As stated though, I think there is a significant legalistic issue arising around the potential ‘double jeopardy’ scenario.

    I hope that makes sense.

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  8. Quoting Wikipedia

    Human rights are commonly understood as “inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being.” Human rights are thus conceived as universal (applicable everywhere) and egalitarian (the same for everyone).

    Now it has to be said that this “applies to all” thing doesn’t sit well with a number of people, who think that some should have more rights than others, but that is the whole idea; it is to prevent those who think this way from doing things that humanity has declared to be wrong. There’s no arguing with that fundamental truth. It’s damned inconvenient when a government or public pressure wants to do something inconsistent with the human rights principles, but that is the very reason why they exist.

    The Universal Declaration of Human Rights Section 11, point 2 says “No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.”

    That last point looks to be unequivocal.

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  9. Thanks for your clarification Gregor. I tend to agree with your summation, although it still raises the question of fear based decision-making instead of due diligence and justice based on actual crimes being committed.

    There are other mechanisms available, but like much of the justice system, I doubt they can remedy a repeat offender who has not been rehabilitated properly if he is determined to commit similar crimes. Constant monitoring and strict parole conditions are a small price to pay to try to ensure this does not happen.

    If Wilson offends again, then some responsibility must lie with the parole boards conditions, the probation officer and police for allowing that to happen, the government for not having proper mandatory rehabilitation services in place and the justice system for not handing down an appropriate sentence in the first place.

    Collins’ is in fact giving a big vote of no confidence in the justice system by trying to usurp the judges decision. She obviously has no faith in the parole boards effectiveness.

    Punishing Wilson further because of a failing within the system is unjust and trying to retrospectively change the law because of one case, which will impact on hundreds of other inmates, is undemocratic.

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  10. Jackal:

    You can’t rehabilitate a psychopath. The damage is too primary.

    The main duty of prisons is rehabilitation? Subjective. I think they’re more deterrent.

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  11. Gregor says “….where he is raising legitimate concerns around due process …”

    So where is the legitimate concern for past and future victims?

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  12. Andrew Atkin

    The main duty of prisons is rehabilitation? Subjective. I think they’re more deterrent.

    The longer sentences will deter people from committing crime argument has been thoroughly debunked. In fact prisons have been shown to not deter crime at all.

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  13. PhotoNZ1s concern for “future victims” was totally lacking when he was supporting a child sex offender getting discharged without conviction, even though the offender had pleaded guilty ……

    New Zealand sent a child killer to represent us at a olympic games (Pownceby)

    Our police force recently left hundreds of child abuse victims to fend for themselves with the police to busy with more important things ( like busting pot smokers ).

    Is Wilson more of a threat to the community than ex-police prosecutor and child rapist Graham Capill ??

    Where were the calls for a law change when he got paroled??

    What is the National Government doing about all the rapes, murders, child abuse etc etc caused by the drug alcohol???.

    The Natioanl Govt takes the money from those who cause the bulk of our serious crime ( the booze pushers ), and does a song and dance about 1 offender.

    They could prevent 1000’s of victims every year but they choose not to.

    Talk about corruption and misdirection ………

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  14. @photonz1

    So where is the legitimate concern for past and future victims?

    Once again with the strawman.
    The ideas are not mutually exclusive and no-one has suggested they are.

    @dbuckley

    Re UNDHR S11 – that was they bit I missed out when commenting about R v Rameka (2003) 2 HRNZ 663 (UNHRC); essentially the countervailing position that while S11 is should apply in toto, there are circumstances where a custodial sentence is “context relevant” and could potentially pre-empt a future offence based on an appropriate risk analysis taking into account the nature of previous offending.

    Overall though, a pretty slippery slope.

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  15. I’ve now read (albeit quickly) R v Rameka and I cant see the connection (warning – I not a lawyer!), other than the Court of Appeal upped the sentence of defendant Harris to preventative detention. There seems no direct parallel as that process is within the context of the original trial and its subsequent appeals process.

    Also the case reiterates that preventative detention is not a punishment but a measure to safeguard society, and thus there must be safeguards around how that tool is used, and it cannot be equated to permanent incarceration without just cause.

    The idea of using the MHA is an interesting one, and seems far more fitting, as it takes the issue out of the “crime and punishment” debate into a “protection” argument, albeit not to the benefit of the subject.

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  16. @ dbuckley

    Not sure, but I might have lead you astray.

    The context was not the case R v Rameka per se , but the judicial analysis from the UNHRC on appeal that found the application of preventative detention measures is “context relevant”; potentially (but not specifically) opening up the door for preventative detention without a specific crime on the basis of prior history of offending or public good.

    A good analysis here:

    http://www.otago.ac.nz/law/oylr/2010/Cat_Deans.pdf

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  17. Jackal:

    Prisons don’t deter crime? But how do you measure? How do we measure all the crimes that never happened, but only because we have prisons?

    The only cases we know about are the ones that our prison system did not work for (as a deterrent). The rest are statistically invisible. But I would bet, regardless, that if you got rid of prisons (as an experiment) that your crime rate would absolutely skyrocket.

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  18. The more people you put in prison the more criminal you make society. In other words the more people you lock up the more criminals you produce.

    “So, how to keep them from going to prison in the first place, whether by rethinking the old lock-‘em-up-throw-away-the-key mentality, or preventing crime with beefed-up policing in high crime areas?

    That’s exactly what the State of New York has been doing. Between 2000 and 2010, its prison population DROPPED by more than 13,000 – nearly 20 percent. And guess what: The crime rate also dropped, by 21 percent . . . in New York City, by nearly 30 percent.” ….. http://www.informationclearinghouse.info/article31156.htm

    I think the real question should be is how much crime do our Politicians, police and justice system CREATE?.

    Remember every person who leaves prison brings a bit of it with them to the outside.

    Its a lack of empathy and morals which lead to crime. The sort of things you learn in prison ………..

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  19. Going back to Andrew’s point about public protection, right at the beginning of the thread, if anger about unsatisfactory politicians was evidence of a capability for violence, and we were all examined thoroughly, I wonder whether any of us would be allowed out on our own.

    Separately, responding to Andrew two comments above, I half-remember a study which said that locking up more men caused social disruption to their families, which increased the number of their children who committed crimes. It may well have been in one of the Freakanomics books.

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