The Bill introduces a new offence that criminalises ram-raiding, allows 12 and 13-year-old offenders to appear before the Youth Court and adds new aggravating factors into the Sentencing Act 2002.  

“The Law Society opposes the Bill as it creates a pathway that allows children aged 12 and 13 to be prosecuted in the Youth Court even if it is their first-time offending. The Law Society accepts a particular motivation for the Bill is public concern about this kind of offending by children and young people. However, we strongly agree with the concerns expressed in the Attorney-General’s Report that the Bill is inconsistent with fundamental human rights”, says Mrs Lloyd.  

“We do not consider that creating a new offence for 12 and 13-year-old offenders is an age-appropriate response. There is a significant amount of evidence about children and young people’s reduced capacity for decision-making, and the well-known harms that accrue from involvement in the criminal justice system at a young age, including an increased chance of reoffending. It is well documented that early exposure to the criminal justice system can have detrimental, life-long effects”, says Mrs Lloyd.  

Currently, 12 and 13-year-olds are prosecuted in the Youth Court for serious offences with a maximum penalty of 14 years imprisonment, or where there is recidivist serious offending. The new ram-raid offence has a maximum penalty of 10 years imprisonment. “This is an egregious lowering of that threshold, based on sentiment rather than evidence,” Mrs Lloyd explains. “We know therapeutic interventions can address this behaviour and reduce reoffending. Many communities and organisations across Aotearoa are working to do just that.” 

The Law Society submits that any “creep” downwards of the minimum age of criminal responsibility should be strongly resisted. The United Nations Committee on the Rights of the Child has also indicated the minimum age of criminal responsibility should be raised to at least 14 years of age regardless of offence. 

“We also note there is very real practical issue about whether Oranga Tamariki has capacity to suitably provide for any children held in custody while awaiting trial or sentenced to detention in youth facilities. Any shortfalls in resourcing would need to be addressed prior to any prosecutions being brought, or New Zealand would be in breach of various international conventions”, says Mrs Lloyd.   

Finally, the Law Society notes the new offence will apply to adult offenders and suggests the underlying policy intent of the Bill can be achieved through existing law, noting that each of the elements of a ram-raid already constitutes an offence. 

The Law Society urges Parliament not to reinstate the Bill, and to instead seek further advice from officials and those working in the community to address offending by children and youth. If the Bill is to proceed, substantial redrafting is required. 

The Law Society will make an oral submission to the Justice Select Committee when Parliament resumes. Read the written submission here.