Blinded justice

Mark Middleton, freed after being sentenced for threatening to kill. Photo / Mark Mitchell

When Mark Middleton knew Paul Joseph Dally, the man who killed his stepdaughter, 13-year-old Karla Cardno, was due for a parole hearing in 1999, he told media he would "cut off his balls and shove them down his throat". Dally would be tied "upside down to a tree" and he would "kill him over three days".

Middleton's outburst earned him three convictions for threatening to kill but, in the eyes of the nation's crime victims, he was a hero. Frustrated from decades of offenders having more rights than victims, they cried "enough" and rallied for change.

A decade later, no less a person than the Chief Justice, Dame Sian Elias, suggested the scales of justice had tipped too far in favour of victims. In the annual Shirley Smith lecture earlier this year she said "hot vengeance" had replaced "cool impartial justice".

Internationally, the phenomenon is known as victimology, the cult of victimhood. It's an academic discipline, big overseas and a whole new industry for lawyers, sociologists and victims' rights groups.

But to Middleton, speaking over the phone from an unknown location, fancy words won't dull the bitterness and grief he still feels 20 years after Karla was brutally murdered. And now, it's a particularly difficult time.

This week the Parole Board will consider Dally's parole postponement under section 27 of the Parole Act. Despite apologising to Karla's family in 2007, it's doubtful the lifer will be paroled anytime soon.

And in a strange twist, Karla's biological father, Gary Duffin will be sentenced on November 13 for rape and indecent assault of a teenage girl.

So it goes on for Middleton, who says nothing is resolved. "We've had no apology from those who let Dally out in the first place, supposedly looking after him, and stuck him in my neighbourhood. You ask about my anger? Nobody knows the length and depth of my anger. I don't think any lessons have been learned. People like Dally they should never be let out."

Dally snatched Karla Cardno off her bicycle on May 26, 1989, repeatedly raped and tortured her for 22 hours while her frantic family searched for her, then drove to desolate Pencarrow beach and buried her alive - naked, bound and gagged.

He was sentenced to life imprisonment in March 1990.

But in February 2001 Middleton was also in jail, awaiting sentencing. The country was outraged when the jury found him guilty of threatening to kill. Wouldn't every decent father voice the same thoughts?

Middleton's 24-year-old niece Kate, 12 when Karla died and like a sister to her, had burst into tears at the verdict, telling media the murder affected "how you deal with every person you meet and every thought that goes through your head".

Rallies were organised for Middleton's sentencing. Talkback lines ran hot. On the day, February 16, protesters turned up outside courts around the country.

But Judge Michael Lance would not make a martyr of Middleton, sentencing him to nine months' jail suspended for two years, with the words, "the circumstances of Karla's murder were sadistic and brutal and the most agonising imaginable. I am satisfied it had an immediate and traumatic effect on you."

Supporting Middleton throughout the trial, taking media questions, was a Hawke's Bay farmer, there, he said, because he loved his wife and four daughters. "Don't wait until it happens to you," he said, "stand up now." His name was Garth McVicar.

When Middleton walked out a free man and disappeared from public view, McVicar wasn't going away. Telling reporters he was "in this for the long run", and clutching his 16,000-signature petition for safer communities, he set up the Sensible Sentencing Trust.

Today Middleton says he never intended to be the catalyst for a victims' rights lobby group, and is not a member of Sensible Sentencing, but "was happy to loan my support to Garth because he was doing something. It's not good for the victims of crime in this country. They get torn apart."

Middleton's step-daughter suffered one of this country's worst crimes - so bad, in fact, decades later details still haunt the pathologist and senior police who worked on the case. It's not surprising his voice still cracks and eff-words pepper his sentences.

This raw agony galvanised McVicar into selling two businesses worth $360,000 to establish his trust, determined to reduce violent crime, give victims a voice, and make communities safer.

Certainly crime victims have more rights these days. They can address parole hearings, enlist on a national register, read impact statements in court, are assigned help from Victim Support, receive ACC-funded counselling, and funeral grants, to name just a few improvements.

But McVicar and his lobbyists won't stop until they have a criminal justice system in which the scales are not balanced. They don't care if the accused doesn't get a fair go, they want victims running the show, nurtured by defence counsel, massaged by judges, having their say in sentencing. Is this what we mean by the right to a fair trial, or is this victimology gone mad?

Garth McVicar's the go-to man for media every time a parolee reoffends, drunk teens crash cars, prisoners escape. But are the strident calls of Sensible Sentencing making New Zealand a safer place?

More crims are locked up. Our prison population doubled every 10 years from 1986 until December 2005 when we had 7518 inmates - 187 per 100,000. Today the muster stands at 8400, down from a peak of 8500 in September 2007.

But our society is more vicious. According to Ministry of Justice figures to June last year, violent offending has risen by 31 per cent in 10 years, and the 2006 Crime and Safety Survey states these figures should take into account the "serious" under-reporting of sexual offending and family violence.

McVicar blames this on nine years of a Labour Government, particularly for not tackling youth crime. Get tough and it works, he says, and cites a judge in Hawke's Bay who locked up teenage taggers and suddenly tagging disappeared.

He's still farming - between media calls - and turns off his tractor to do this interview. Sensible Sentencing has grown like Topsy, with - he reckons - more than 150,000 members, including "15 to 20 MPs".

No doubt retaining his aw-shucks approach to reporters has ensured friendly treatment, but don't be fooled. McVicar is astute. By his own admission he's a businessman, "with a business plan. I know exactly where Sensible Sentencing will be in five years' time."

When he started eight years ago, he says victims were totally ignored in criminal cases, but things have improved. "In the past two weeks I've seen the biggest changes ever from one government - eight policies announced on victim-related issues, not counting the DNA changes."

His website boasts: "The first 100 days of the National/Act government have seen many of Sensible Sentencing policies already put in place, with more to come."

Sensible Sentencing's policies bear a striking resemblance to those emanating from Justice Minister Simon Power's office, but McVicar says: "We don't align ourselves with any political party."

What about Act's David Garrett? "Rodney Hide asked if I would stand for Act and I said no. David is a member, and he used to do our legal work pro bono but now he's an MP he's not allowed to speak as a representative of Sensible Sentencing."

Throw into the mix barrister Stephen Franks, Sensible Sentencing representative, reputed to be one of Wellington's most effective lobbyists, former Act MP, the National candidate at the last election who came within cooee of taking Wellington Central. Franks has a visceral loathing of "sneering compassion merchants" who he says are "firmly ensconced in the bureaucracy and in all political parties".

But, like McVicar, he has done his share of God's work, sitting through parole hearings with distraught and broken families who, at the end of a long and drawn-out court process, believe the offender is in a better position than the victim.

"Garth would talk to me at least once a week," says Franks, explaining his close association with Sensible Sentencing. "All that talk about justice being therapeutic for the offender has failed. The system is warped. Punishment doesn't even appear in the Sentencing Act."

Godzone's got more violent not because Sensible Sentencing's methodology is wrong, but because criminals are gamblers, says Franks. "It's easy to fix. Speed and certainty of consequences - shorten court processes. Get the message across that crime doesn't pay."

Instead, he says, for the past decades the "elites" have said, "If you commit an offence there's a pretty good chance nothing much will happen."

Victimology? We haven't even started. Take victim impact statements, which Franks wants to change. "The process effectively confines families to saying how successful the criminal's been. Victims pour themselves into these statements only to have them heavily censored first by police, then by judges. It's shattering. They're not allowed to say what they'd like to do to the offender."

Surprisingly, neither McVicar nor Franks had heard of the $10,000 "Victimology Scholarship" advertised last year from government-funded Victim Support.

Offered to postgraduate students, research institutes and organisations working with victims, no suitable applicants applied, so chief executive Tony Paine says it will be reoffered, with more specific criteria.

Interested applicants could browse Wikipedia for fascinating interpretations of victimology. For example, there are penal couples, whereby offenders and victims are considered by sociologists to be partners in crime.

Victimology disciples could also join the World Society of Victimology, which offers awards, grants and post-graduate courses and attend the annual international symposium on victimology. But don't expect any personal stories of redemption. Presentations are strictly academic, covering a broad field - from victims of natural disaster to human trafficking and refugees, says Dr Tyrone Kirchengast, lecturer in criminal law at the University of New South Wales. Kirchengast, whose recent work focuses on victim impact statements in murder cases, presented a paper at the August symposium on victimology in Mito, Japan, and had just returned from lecturing on victimology at Montreal University when he spoke to the Herald on Sunday. Justice Minister Power hasn't heard of victimology. He's not a member of Sensible Sentencing. But he vehemently disagrees with those "commentators" who suggest victims' needs have been "too far prioritised".

But if Sensible Sentencing thinks they've found a tame minister agreeing with all their hang'em high demands, they appear to be wrong. "I'm acutely aware of the responsibility I have to ensure the criminal justice system remains balanced," Power told the Herald on Sunday this week.

"I'm proud of the work we've done in the area of victim support and I don't regard it as extreme. People who, through no fault of their own, find themselves in the criminal justice system, deserve not to be disadvantaged or prevented from having their voice heard.

"They've been put in that environment by the actions of somebody else. So the notion that we're removing the fairness of the process, as you describe it - I just don't accept it. It's just sensible adjustment. There was a lot of catching up to do."

Power is referring specifically to the Sentencing (Offender Levy) Amendment Act which requires every convicted offender to pay a levy of $50, will generate $13 million over four years, and will fund eight new initiatives for victims.

So is he Sensible Sentencing's puppet? "All those initiatives passed in our first one hundred days [referred to by McVicar] we designed and drafted in opposition, and we laid out what we would do if elected. They've been around a very long time."

Power reckons he's not taking away the "institutional professionalism of the justice system", he's just fulfilling National's promise to "put victims of crime at the centre of the justice system".

And this is where the collision between the victimologists and the criminologists occurs. This is the point where the scales of justice teeter.

In allowing the process to focus too much on the victim of crime, the Chief Justice opined, we have "turned the clock back to the tyranny of private vengeance". In so doing, we risk losing the "traditional accusatorial system of determining criminal culpability, with its detachment and public ownership".

Dame Sian declined to be interviewed for this story, and while her speech acknowledged victims were not well treated back in the days when they were "considered largely irrelevant in criminal proceedings", she said "courtrooms now can be very angry places".

She also said the impact on Parole Board hearings has been profound, though board chairman Judge David Carruthers told this reporter the role and involvement of victims within the parole process has not changed since 2002 when the board was established.

While the tone of hearings may not have changed, figures obtained by the Herald on Sunday indicate written submissions have climbed by more than 50 per cent in four years.

In the 2004-05 year, the board heard 79 oral and 248 written submissions from victims on the Notification Register. In the 2008-09 year, submissions climbed to 98 oral and 387 written.

Carruthers says not all victims are bitter and vengeful. "We do see some forgiving and generous people who want to support the offender, and want some good to come out of the bad," he says, citing what he calls a "dramatic" example of the sister of a street kid, tortured to death by a satanic cult gang, one of whom genuinely turned Christian in jail and turned his life around.

"We're usually very suspicious of that. Sometimes it's real, sometimes manufactured. But the sister said she was so glad she'd met this boy. She said my life stopped, I lived in terror of you being released and today I lost that fear'."

Empirical evidence from America shows forgiveness can be a powerful tool aiding progress in rehabilitation of both offender and victim. Judge Carruthers also cites research showing overuse of prisons, and prison brutality, leads to higher crime and recidivism rates.

Carruthers is not alone in wanting to reduce the number of victims by preventing crime. Power is "very excited" about an upcoming launch with Pita Sharples of a strategy which came out of the April "drivers of crime" conference.

But Sensible Sentencing's thousands of members can count on McVicar to stay staunch. Asked how he justified dismissing a man's life with, "he'd be no great loss to society" (during the Paremoremo hostage drama), McVicar boasted that the comment "increased our membership hugely. We've gotta get people off the fence."

And he doesn't believe in forgiveness. "I won't go anywhere near that one. In eight years I've only ever had one email from people who want to forgive."

For sure, McVicar's organisation's provided stellar support to victims when they could barely drag themselves out of bed. He tells moving stories of members like Kelly Piggot, mother of Teresa Cormack, whose life his volunteers put back together. "We've seen amazing successes, but I don't have a recipe, we're just people who care about victims."

But what started off as a much-needed support organisation, has developed into a quasi-vigilante mob with - if McVicar's figures are correct - a powerful voting block.

So what else features on McVicar's shopping list? Abolish "meritless appeals" as suggested by Stephen Franks last month, because they are "an affront to the sensitivities of victims"?

James Rapley, criminal barrister and lecturer in criminal law at Canterbury University is more rational. "I have a lot of sympathy for victims, and victims' rights groups are well-meaning, but in a civil society we also have to take into account the rights of the accused or offender, if appealing. They might be innocent, they might not have done it.

"We have to remember the criminal justice system is not there solely for the victim, it is there for society."