Sentences row: judge defends colleague

The chief district court judge has leapt to the defence of a judge under fire for giving domestic violence offenders lenient sentences, saying sending them to prison too often will stop families seeking help.

"Prison is necessary for some family violence offending but not I suggest for the large number of New Zealand families coming to our attention," Chief District Court Judge Russell Johnson said in a letter printed today in the Sunday Star-Times.

"We have good reason to believe that an overuse of imprisonment will stop families seeking the help of the police and the authorities."

His comments follow Waitakere Mayor Bob Harvey's criticism of a local judge who let killer Nai Yin Xue off with a warning for a previous attack on his wife. Harvey, who heads a mayoral taskforce on family violence, has said questions need to be asked of Judge Philip Recordon and the family violence court at Waitakere, West Auckland, as a number of sentences have been "bewildering".

Recordon convicted Xue in June 2007 on charges of assaulting a child, assaulting a woman and threatening to kill, but despite a recommendation from the probation service that he be jailed, ordered only that Xue come up for sentence if called upon within one year.

Three months later he murdered wife An An Liu, dumped his daughter at a busy Melbourne train station and fled to America.

Harvey believes jailing Xue for the previous attack might have saved his wife's life. "Too many people, for reasons I cannot understand, are let off with warnings and a slap on the wrist, and it's got to stop," he said.

But Johnson says there is no connection that can be legitimately made between the sentence Recordon gave Xue and the subsequent murder of his wife.

"The family home has become the seeding ground for violence in our community," Johnson said. "We know that 80 percent of the families whose members are arrested for family violence will unite again, and likely be violent again.

"The international view is that courts should hold such offenders accountable, and sentence in ways that create the best chance for repair of that family unit in a union without violence. That is why courts are trying education.

"That is what Judge Recordon was doing in the Xue case, given that Xue had no previous convictions. Often it works. Sometimes it does not. Regrettably that is the human condition."

Johnson said useful tools were being developed to forecast family violence offenders' future conduct based on group characteristics, but judges were required to sentence individuals for individual conduct. No method currently existed for determining the specific risk level of any one individual.

"Judges are sentencing individuals for specific past conduct, not engaging in a restriction of liberty pursuant to an assessment for possible future behaviour," Johnson pointed out.

He believes An An Liu should have had a safety plan prepared for her after Xue's first court appearance. Both the Ministry of Health and the Ministry of Justice advocate victims of domestic violence develop safety plans so they know how to escape dangerous situations, but there is no legal compulsion for such plans to be prepared.

"It should not be too hard to change the law to empower Family Courts to require the development of safety plans for victims," Johnson said.

But Waikato University law lecturer Ruth Busch, co-author of a critical report on New Zealand's domestic violence laws, questions whether court-ordered safety plans would do any more than add another layer of rhetoric to the family violence court process.

Busch said too often the courts used a "tick the box" approach when dealing with victims rather than basing their decisions on valid risk assessments.

Sunday Star Times