Cheating justice: Torrent of outrage shows widespread unease

At the height of the controversy over the Ding Yan Zhao appeal, the letters to the editor of the Herald were a vent for public outrage.

"Can we now assume," wrote Bruce Morely, of Grafton, "that a poor person showing up in court without any money to throw at the victim or at the victim's associates will be assumed incapable of showing remorse and be punished with the appropriate severity?"

John Capener, of New Lynn: "I, and an awful lot of other parents, could not find $40,000 to offer as compensation to ease my child's way through the justice system, therefore Justice Randerson in his 'impeccable fairness' would have had to let my child's original sentence stand.

"Which means there is one law for those with money and a law for those without."

The letters betrayed public unease at the way the law allows for reparation orders or offers of compensation in criminal cases.

By law and convention, judges take reparation or compensation into account when setting a sentence.

But Victim Support chief executive Stephen Caldwell agrees with the public questioning, and has called for changes.

He believes the onus should be reversed - rather than rewarding criminals for paying reparation or compensation, he thinks they should be punished for not making amends.

"Offenders are asking, 'How much will I get off?' I think that is the wrong way to look at it," said Mr Caldwell. "Reparation should be a normal situation - it should be expected. [Offenders should be saying] 'If I don't do it, then something will happen'."

But Auckland University associate law professor Warren Brookbanks said there were good policy as well as humanitarian reasons why a judge should take reparation and compensation as a mitigating factor.

This was particularly true in cases where the level of culpability was not high and the crime was out of step with the person's character.

"Clearly in a case where someone has suffered emotional harm or financial loss, then reparation or an offer to make amends - where it is done genuinely - may be a way out for the courts which avoids a need to impose a jail term or at least a lengthy jail term," said Mr Brookbanks.

As well as relieving the burden on the offender, it saved public money.

Mr Brookbanks said the Victim Support suggestion would also cause problems where people were financially or physically incapable of offering reparation or compensation. "They would be prejudiced simply because they lacked the means. Whereas the way this system works is judges have a very good sense of human nature for the most part and they can tell whether someone is trying to use the system to their advantage and where someone is genuinely remorseful."

Lawyer and Victoria University law lecturer John Miller said reparation was an important part of the justice system and sentencing process. In his experience, the major problem for victims was not getting reparation. "It's the healing power of money."

Victims of burglaries, for instance, were helped enormously even if they got paid back the money it cost to replace a window broken in the process.

"It's a soothing balm, if that can be done," said Mr Miller.

"But I agree that it comes a cropper when someone has died - no amount of money can soothe that."

While the requirement for judges to take reparation and compensation into account is written in law, Mr Miller believes judges have probably been doing that anyway "for ever".

He draws a distinction between reparation and an offer from an offender to compensate the victim.

"Reparation is a sentence. An offer to make amends is putting your money where your mouth is. What tangible way can you show you really are remorseful?"

Cash, however, is not the only way to make amends. Under the Sentencing Act, an offer to make up for what an offender has done could be to perform work or a service.

And it would not necessarily have to be work for the victim. "Maybe you could devise something where someone goes off and does Volunteer Service Abroad for a year."

Have your say:

The Herald will look again at the issue of Cheating Justice on Monday and invites readers to air their views on the issues raised today.

If you have been a victim of crime and promised compensation that has not been paid then tell us about your case.

We will also run a range of reader reaction on the issues raised in today's Weekend Herald.



Email your story to * Email newsdesk@nzherald.co.nz or fax to 09-373-6421.