Section 52 Petition

PETITION BY SOCIAL JUSTICE AOTEAROA:
TO AMEND SECTION 52 OF THE CORRECTIONS ACT 2004

Submissions by Jackie Foster,
CEO of Social Justice Aotearoa

INTRODUCTION

1. SJA was set up to support and advocate for those incarcerated within prisons in Aotearoa and their whānau, and to push for positive change within the justice system.
2. One such means of support is to assist those incarcerated and their whānau to best prepare them for upcoming parole hearings and rehabilitation and reintegration pathways. This petition commenced because of a common theme raised and problem faced amongst most whānau where parole for their loved ones was being declined, as those sentenced were not afforded the opportunity to engage in meaningful rehabilitation by Department of Corrections prior to their first (or in fact subsequent) parole hearings.
3. This results in longer periods of incarceration, longer time away from their loved ones and subsequent hearings at a significant cost to all those involved. Not addressing rehabilitation and reintegration needs also lead to higher rates of re-offending and re-incarceration, as addressed below.
4. SJA advocates for an approach that reduces crime but is also cost effective. From an economic perspective, rehabilitation makes sense. Rehabilitation is meant to give prisoners a path to turn their lives around, not only for themselves but also for the benefit of their immediate and extended whānau, the victims of offending, society and ultimately, the taxpayer.
5. At present, section 52 of the Corrections Act provides:
   • Réhabilitâtes programmes
   • The chief executive must ensure that, to the extent consistent with the resources available and any prescribed requirements or instructions issued under section 196, rehabilitative programs are provided to those prisoners sentenced to imprisonment who, in the opinion of the chief executive, will benefit from those programs.
6. In this petition, SJA submits that section 52 ought to be amended to include time frames for prisoners serving both short- and long-term sentences of imprisonment. Although the legislation prescribes that rehabilitation programs must be provided to prisoners, this is routinely not done in a timely manner.
7. SJA submits that section 52 ought to be amended as follows (amendments sought are underlined):
   • (1) The chief executive must ensure that, to the extent consistent with the resources available and any prescribed requirements or instructions issued under section 196, rehabilitative programs are provided to those prisoners sentenced to a short term of imprisonment who, in the opinion of the chief executive, will benefit from those programs, within 90 days of their sentence commencement date.
     (2) If the prisoner is sentenced to a long-term sentence of imprisonment, an assessment pursuant to subsection (1) is to be made within 365 days of their sentence commencement date.
8. Such an amendment would address public safety risks upon a prisoners’ release, victims’ interests and reduce the risk of reoffending, which are all guiding principles of the Corrections Act as outlined at section 6. It will make a start to re-building a system, that is clearly not working, as recognised by the Ministry of Justice._¹

WHAT IS THE PROBLEM?

9. For most, the justice system seems straightforward, someone breaks the law and must be punished for that. With incarceration comes the removal of rights, and once a certain time has passed the individual is allowed to re-enter society.
10. For those who experience the prison system and their whānau, the reality is so much different. Often, former prisoners find themselves in a world very different from the one they left years before. Without accommodation, employment,
    money or other wrap-around support, it is hard to imagine anyone truly succeeding after being released from prison and rebuilding their life, in those circumstances.

_{¹ Hāpaitia te Oranga Tangata, reports updated on 2 February 2023 found online at https://www.justice.govt.nz/justice-sector-policy/key-initiatives/key-initiatives-archive/hapaitia-te-oranga-tangata/#:~:text=Our reoffending rates are high, years following release from prison.}

11. This is why rehabilitation programs before release and at the earliest possible opportunity are so important. It gives the prisoners the tools to reintegrate and rebuild their lives, away from a life of crime. It gives them the best possible chance at succeeding.
12. Imprisonment rates in Aotearoa are higher than in most of the OECD. There are around 170 people in prison per 100,000 New Zealanders, compared to the OECD average of around 147 prisoners per 100,000 people.²
13. In Aotearoa, re-offending rates are high. Around 70% of people with previous convictions are re-convicted within 2 years following release from prison. Around 49% are re-imprisoned after 2 years following release from prison.³
14. Most that are in the criminal justice system have been abused. 53% of women and 15% of men in prison have reported to being sexually abused.⁴ This is only those that have reported their sexual abuse and the true number may in fact be
    much higher. 77% of people in prison have reported to be victims of physical violence.⁵
15. There is usually a clear reason between the trauma that they’ve suffered, their untreated rehabilitation needs and the offending for which they were imprisoned. The untreated trauma and rehabilitation need has a clear link to their risk of re-offending and therefore, the safety of the community.
16. The problem is that those in custody are not being provided the opportunity to participate in rehabilitation programmes, despite what section 52 of the Corrections Act provides.
17. SJA submits that the Department of Corrections must be more proactive in their approach to the rehabilitation and reintegration needs of prisoners. That rehabilitation and reintegration pathways must also include consideration of:

• Counselling, whether that be alcohol and drug counselling, anger management, gambling, psychological or psychiatric services includingindividual psychotherapy and what we ordinarily refer to as rehabilitation.
• Access to social welfare services, employment, and work experience.
• Education, including further education and access to books/library.

² _{See above n1.}
³ _{See above n1.}
⁴ _{See above n1.}
⁵ _{See above n1.}

• Healthcare and physical education, physical rehabilitation, and access to medical care.
• Contact with whānau to assist with reintegration, including access to phones, writing materials and visitations; and
• Ability to address any mental health needs prior to release.

CAN WE FIX THE PROBLEM?

18. In 1990’s, Norway had a similar problem. Roughly 70% of all released prisoners recommitted crime within 2 years of release (exactly the same as the re-offending rates in Aotearoa at present). At the time, the Norway prison system was built on the idea that punishment is a deterrent – those lengthy sentences in harsh conditions sends a message to others.⁶
19. However, those in Norway realised that the existing system wasn’t working. Crime, recidivism, assaults, riots, and escapes from prison were high. The system needed reform.
20. The Norway government acted boldly and completely overhauled the prison system. Some of the measures taken, as far as they are relevant to the current petition, are outlined below:

• Focus was put on rehabilitation and reintegration.
• Continued contact with the whānau was encouraged, with those incarcerated being housed geographically close to their whānau so that they can maintain contact with their spouses, friends, and family. Visits, sometimes up to three times a week, were allowed. The emphasis on building and maintaining these relationships was so that prisoners have a strong support system upon their release.
• Prisons put focus on educations, with workshops to learn practical skills, such as automotive repair and carpentry. The emphasis on furthering education or skills/trade was so that, when released, prisoners had a more certain pathway to employment and therefore means to support themselves. Classrooms have computers and limited access to the internet.Prisoners have the same right to education as the average citizen. In Norway, upon release, of those who were previously unemployed, there was a 40% increase in employment rates after release.

⁶_{First Step Alliance (2022) What We Can Learn from Norway s Prison System: Rehabilitation & Recidivism found online at https://www.firststepalliance.org/post/norway-prison-system-lessons}

21. Similar to Norway, Italy reformed their prisons in order to address the high incarceration rates.⁷ Some of the measures taken, as far as they are relevant to the current petition, are outlined below:

• Focus on mental and physical health of a prisoner: Italian law states that,upon entering a prison, the prisoner should be visited by a physician and a psychologist no later than one day, to examine him/her and to alert the authorities to any problems, such as drug addiction or substance withdrawal. Italian law recognises that those in prison should enjoy the
  same access to healthcare as other citizens. The benefit of focus being put on healthcare is that prisoners can focus on their physical health and psychological health whilst incarcerated, which will have a direct impact on future risk of re-offending and re-incarceration.
• Focus on employment: the Italian law allows both work within the prison system and work for private companies. The benefit of this is that prisoners are able to learn new skills, put them into practice and also have pathways to employment upon release. Employment would also have a positive impact on both their physical and psychological health.
• Focus on education: Almost all prisons have access to literacy courses. Sentenced prisoners have access to high school and technical institute courses and there are agreements for further education with universities.There are libraries in almost all Italian prisons. Further education will also improve employment opportunities in the future, along with basic literacy skills affording prisoners the opportunity to write to their whānau, which maybe a somewhat foreign concept for those who have previously been unable to read or write. Such would have a direct impact on one’s whanau

22. Although it may seem radical, these reforms worked. In Norway, they impacted not only on the country’s crime rate, but also the economy. As far as the crime rate is concerned, post-reforms, the rate of recidivism within two years dropped from 70% to 20%.⁸ Even after 5 years, the rate of recidivism was only at 25%.
23. In Italy, rate of recidivism within two years sits at about 28%.⁹

_{⁷ Marietti, S. Prison Conditions in Italy. European Prison Observatory, found online at:
http://www.prisonobservatory.org/upload/Italy_Peniten.pdf
⁸ Above at n 6
⁹ Recidivism Rates by Country 2023}

24. Prison reforms such as above have been instrumental in crime reduction and positive economic impact in both Norway and Italy. Given the positive impact rehabilitation and reintegration measures have on reducing crime and the ultimate cost benefit to the taxpayer, focusing on rehabilitation of prisoners simply makes sense.
25. I have chosen not to read the parole hearing reports I refer to but have attached below for you all to read.

WHAT ARE THE BENEFITS OF THIS LAW CHANGE?

26. Justice ought not be only available to those who can afford to pay for it themselves. Similarly, access to rehabilitation and reintegration pathways ought not to be available only to those who can pay for it. Especially when the legislative
    has prescribed that programmes that would benefit prisoners must be made available by corrections.
27. It is clear that corrections are in breach of section 52 of the Corrections Act and is failing in their duty to prisoners regularly. This is simply not good enough.
28. One issue with section 52 is that it does not prescribe timeframes by which the Chief Executive is to make those programmes available.
29. SJA submits that if the prisoner is serving a short term of imprisonment (as defined by section 4 of the Parole Act 2002), then the assessments and referrals ought to be made within 90 days of their incarceration. This would allow time for the prisoners to engage with the programmes prior to their release within the next 9 months.
30. SJA submits that if the prisoner is serving a long-term sentence of imprisonment (again, as defined by section 4 of the Parole Act), then the assessments and referrals ought to be made within 365 days of their incarceration. This would again allow sufficient time before he/she is seen by the Parole Board to engage with meaningful rehabilitation. It would avoid the situations as outlined above,where prisoners like Mr Waihirere serve 5 1/2 years without the benefit of any
    programmes. It would avoid situations where prisoners appear for parole,untreated, and therefore parole is declined due to the risk to the safety of the community.
31. Rehabilitation and reintegration measures ought to be undertaken as soon as possible. This simply makes sense because it gives the prisoners the benefit of time, to learn and change their behaviour and thinking, and to make meaningful and long-lasting change. It is that change that will lead to re-offending and re-incarceration numbers reducing; it is that change that will reduce crime numbers and ultimately, reduce the cost to the taxpayer given the cost of housing a prisoner.
32. At present, in Aotearoa it costs around $150,000 per annum per prisoner. We have about 8,500 prisoners, which is an annual cost of more than $12billion.¹⁰
33. But with a focus on rehabilitation and reintegration in a timely manner, that cost to the taxpayer will be reduced dramatically.

CONCLUSION

34. There is widespread acknowledgement that the system is broken.
35. So why not start fixing that, as soon as practically possible? SJA submits that amending section 52 of the Corrections Act is the first, albeit small, step to fixing our broken system.
36. Thank you for the opportunity to make both written and oral submissions before the Justice Select Committee.
37. To contact Jackie Foster for any clarification on any matters raised in these submissions, please contact info@sja.org.nz .
38. “It is noted that the hon Kelvin Davis has a bill in front of the house regarding rehabilitation and we submit that our petition is in line with government policy.

Ngā mihi nui,

Jackie Foster

CEO of Social Justice Aotearoa.

WHAT IS THE REALITY OF NOT COMPLETING PROGRAMMES?

New Zealand Parole Board publishes a handful of cases on their website. All reported cases for 2023 have been analysed for the purpose of this petition. Some case examples where prisoners have been incarcerated for longer periods of time, because Corrections have failed in their legislative duty to provide sentenced prisoners with programmes that will benefit them, pursuant to section 52 of the Corrections Act, are outlined below:

• Thompson:
  Mr Thompson, who is 64 years of age, was sentenced to preventive detention in 1995. He was seen by the Parole Board two years prior, at that stage, the proposal was for him to do the Child Sex Offender Treatment Program. Once complete, he was to be assessed for other programs, including an Adult Sex Offender Treatment Program, a Drug Treatment Program, or a Violence Program. The Board noted in 2021 that Mr Thompson was motivated to complete the above programmes.
  He then appeared before the Board on 27 January 2023. The Board noted that “really there has been no progress since the 2021 hearing.” He had wanted to have knee surgery prior to engaging with the programmes, but the Board noted that he had not been referred for the treatment on his knee, and therefore had not addressed any of
  the rehabilitation needs identified.
  The Board ultimately held that he remains at undue risk and stated that the Board will see him in a further two years.
  breached section 52 in respect of Mr Thompson – by not making the necessary rehabilitation referrals in the two years between 2021 and 2023. The Board noted Mr Thompson’s extensive criminal history saying “the offending which brought him to prison and resulted in his sentence of preventive detention involved 129 crimes,involving 47 girls and women over a period of 12 years. This was horrifying, violent,extensive sexual offending of women and children. In addition to the sentence of preventive detention, he had a minimum parole period of 25 years.” He appears to be someone with complex rehabilitation and reintegration needs. But between 2021 and 2023, nothing had been done to assist Mr Thompson with his rehabilitation or reintegration; he had not been referred to any programmes that would benefit him. As a result, parole was declined and he is to be incarcerated for another 2 years (at least), at a cost to the taxpayer of about $300,000 for those two years.
• Waihirere:
  Mr Waihirere’s sentence commencement date was 5 July 2017. He was sentenced to 12 years and six months’ imprisonment following convictions on a number of charges involving unlawful sexual connection with a female aged between 12 and 16 years,indecent assault, making objectionable material and sexual exploitation. He appeared before the Board on 13 January 2023, about 5 1/2 years after he was incarcerated.
  The Board was provided with a psychological report indicating that Mr Waihirere should undertake the Medium Intensity Rehabilitation Program for Child Sex Offenders.
  Although the psychological assessment outlined the pathway for Mr Waihirere, the programme itself was not facilitated by Corrections. The Board declined Parole, noting “clearly, as an untreated prisoner, Mr Waihirere remains an undue risk and therefore for today’s purposes parole is formally declined. He should be seen again within 12 months. ”Even with a clear pathway for rehabilitation and reintegration identified by the psychologist, that was not facilitated – breaching section 52 in respect of Mr Waihirere too. No explanation has been provided by corrections as to why he was not referred to the MIRP-CSO.
  Although Mr Waihirere had been in custody for 5 1/2 years, he had not completed the necessary 6-month long programme. As a result, Mr Waihirere was further incarcerated for at least another 12 months – at a cost of $150,000 to the taxpayer.
• Boulter:
  Mr Boulter had been serving a sentence for three years and two months’ imprisonment, having been convicted on charges of threatening to kill, (x 7),contravening a protection order, assault with intent to injure and causing harm by digital communication. His sentence commencement date was 1 July 2020, and he was seen by the Board on 12 January 2023. Despite being in custody for 2 1/2 years, the Board noted that Mr Boulter had not engaged in any formal rehabilitative programs but that he had expressed a willingness to undertake individual treatment with a psychologist.The Board noted that a multidisciplinary team meeting ought to be undertaken, so that appropriate reports can be made available to the Board. No reason was provided as to why corrections did not hold such a meeting prior to the Parole hearing or why Mr Boulter was not afforded the opportunity to engage with rehabilitation in the 2 1/2 years prior. Again, despite Mr Boulter’s willingness to engage in rehabilitation Parole was declined and the matter stood down for the Department to assist with rehabilitation and reintegration.
• Hutton:
  Mr Hutton appeared having been sentenced to a term of 3 years and 10 months’ imprisonment for sexual exploitation and possession of objectionable material. His sentence commencement date was 21 January 2021 – he appeared before the Parole Board nearly 2 years later on 11 January 2023.

The Parole Assessment Report noted that Mr Hutton was motivated to do the MIRP-CSO, which is a 6-month long programme. Again, for reasons unknown, the programme which would be of benefit to him was not provided, in breach of section 52.
The Board noted that “as an untreated prisoner Mr Hutton poses an undue risk to the community and parole will be declined.” He was to be seen by the end of November 2023 – some 10 months after the hearing.
Mr Hutton had already been in prison for nearly 2 years. It was identified that he ought to do the MIRP-CSO which lasts 6 months. However, due to ’s failure to provide Mr Hutton with the programme, which clearly is of benefit to him, he was again
incarcerated for a longer period of time.
These are only the examples reported and only from 2023. But the common theme is that corrections are not providing prisoners with rehabilitation programmes that would benefit them, contrary to section 52 of the Corrections Act, in a timely manner. In contrast, SJA draws attention to Mr Mafi-Vatuvei’s case. Mr Mafi-Vatuvei is a high-profile sportsperson and media personality, who was sentenced to 3 years and 7 months’ imprisonment for importing methamphetamine and amphetamines. His sentence commencement date was 3 March 2023 and he appeared before the Board on 17 May 2023. His sentence end date was not for another 2 1/2 years, on 1 October 2025.
On account of his drug related conviction, Mr Mafi-Vatuvei was eligible for the DTP (Drug Treatment Programme). However, was hesitant to engage in group-based counselling. As an alternative, Mr Mafi-Vatuvei was waitlisted for individual psychological treatment. However, the Board noted that on account of his sentence end date not being until 2025 it was unlikely that he would be given any priority.
Mr Mafi-Vatuvei engaged the services of an independent consultant forensic psychologist who carried out an extensive analysis of Mr Mafi-Vatuvei’s risk, produced a comprehensive report and assisted him to prepare a comprehensive relapse
prevention and safety plan.
The Board noted that having regard to the above (and other wrap-around support and protective factors available), Mr Mafi-Vatuvei was no longer regarded as undue risk and therefore was a candidate for Parole.
SJA questions what would have happened, but for Mr Mafi-Vatuvei having the support of his whānau who were able to provide the funds for a private psychological assessment and treatment. Most prisoners would not be in a position to pay $3,000 onwards for such a report.
Had Mr Mafi-Vatuvei not been able to obtain the assistance of a psychologist himself, it is likely that the Board would have held that, as an untreated prisoner, he remained at undue risk to the community and Parole would have been declined.