Trial and errors
THIS weekend the Sensible Sentencing Trust is turning the justice system on its head, by putting it "on trial" at its annual conference in Taupo. If only for a day, the system will be in the dock and victims will be the ones asking the hard questions. So what would families of murder victims change if they had the chance?
In a week when one of our worst killers, Clayton Weatherston, was sentenced, we asked four parents, including Lesley Elliott, the mother of Weatherston's victim Sophie, about how justice could be better served and what flaws in the system need to be urgently addressed.
These families have a unique perspective on the justice system from a place that no one ever wishes to be. As Brian Brown, father of Natasha Hayden, puts it, change will take place only when those who are unaffected by the crime look behind the doors of the justice system.
Many of the families say they were treated with insensitivity, felt shut out, and did not believe justice had prevailed at the end of court proceedings which took too long to come about. They say that life should mean life and serious offenders should never be released on bail.
There have been some advances over the 25-year span of these murders, yet Justice Minister Simon Power agrees the system is not perfect and says that there's always room for improvement. "The government is committed to a justice system that prioritises the safety of New Zealanders and addresses the needs of victims," he says (see sidebar, C2).
Mother of Sophie, 24, killed by Clayton Weatherston in January 2008
The Elliott family waited 21 months for Weatherston to be sentenced. It took 10 court hearings and numerous delays.
"Your life is on hold quite frankly," Lesley Elliott told the Sunday Star-Times last week. "I was saying to my husband today, I can't believe we'll be able to plan things and not think about court dates."
Fresh from the justice system, the Elliotts can easily identify the areas that most need attention the leniency of punishments, lack of protection for victims, lack of financial compensation and long waits for trials. Weatherston's sentence of 18 years is "bittersweet", as Elliott says she wanted "a life for a life".
"I don't mean capital punishment, but I mean he has deprived Sophie of her life and I don't see any reason why he should have a chance at life or freedom again. He chose to go down that path, it wasn't an accident, he deliberately chose to do it. I would like to see him go down forever. That aside, I think that he is a danger to society, women in particular."
She was frustrated to learn that Weatherston has already served 20 months of his sentence, which dates back to his arrest. She says the penal system has become too soft and forgotten its purpose. "What we are supposed to be doing is punishing people for bad behaviour. We've become so PC that we've forgotten why people are going to prison. They have done horrible offences and it's not a holiday in the park. I think they should be doing hard labour."
She says the public needs to accept that taxes will be used to keep criminals in prison but this could save lives. "I don't mind if my taxes go towards keeping Clayton away forever. That's what I want because he took the most precious thing in our lives and that was our daughter and I just can't forgive him for that. If I have to pay for him to stay away then that's good."
Elliott says she was appalled at the way Sophie was put on trial and feels victims should be given more rights, especially when they are not there to defend themselves. "It is a totally unfair system. This whole adversarial idea is just crazy where the poor victims and the victims' families are on trial. The first couple of weeks were just awful, it just felt like they were saying it was all Sophie's fault."
Sophie was further degraded by a full post-mortem examination, which her mother says was unnecessary. The family was not consulted about the process. In hindsight, Elliott wishes she had kept a lock of Sophie's hair.
"The literature we were given said that post-mortems are done if you are unsure of the reasons for the death. Well, we knew what killed Sophie, it wasn't what police call a `who done it'. From our point of view [the post-mortem] was horrible."
Following Sophie's death, the Elliotts' lives revolved around the David Bain case. "It was the Bain of our lives," she says with a laugh at her play on words. With the same detective and Crown prosecutor involved in both cases, the Elliotts watched the Bain case go on and on, knowing that Sophie's case would not go to trial until it was over.
When the date was set for the end of May, they breathed a sigh of relief. Sophie's brothers, both living in Australia, gave up flats, stored their belongings, left jobs and headed home. The Elliotts and their family from Auckland booked accommodation in Christchurch and took leave from work. The trial was then postponed twice, adding a month to their wait. "We were so utterly shattered by then."
When the trial finally began in July, the family had to pack for five weeks in Christchurch. Elliott says having the trial in Dunedin would have caused much less stress. She had to organise medication for five weeks and was nervous about being away from her support, psychologist Nigel Latta.
Elliott believes families should have more contact with Crown prosecutors. On request they met once, but this was not usual practice. "Why do Crown solicitors not meet up with families more? There must be some really good reason. I can understand them sort of not getting too emotionally involved, but then that's what it's all about, it is about emotions, it is about people."
Unhappy with the rights given to the offender, she says Weatherston was able to change his lawyer, whereas they had no choice. "You are stuck with whoever you get [and] you don't know whether they are good, bad or indifferent."
The financial burden on the Elliott family caused stress at a time when they were at maximum capacity. She says compensation, such as the one-off payment of $50,000 made to homicide victims in some Australian states, would help.
"We've remortgaged our house. The boys coming from Australia gave up their jobs, gave up their flats, because they didn't have the resources to pay for flats for four or five weeks and live here as well. We just said `look just do what you have to do and we'll care for you while you are here'."
The police gave the boys a referral for a sickness benefit from Winz, which Elliott said was small but a godsend.
"We've got a house but we're both in our 60s. We're thinking of retiring in a couple of years, but my husband said to me the other day `I think I'll still be working until I'm 100'."
Father of Kylie Smith, 15, raped and murdered in 1991 by Paul Bailey
When Kylie Smith was murdered by a man on bail for rape, the then justice minister promised to tighten bail conditions. Nearly two decades on, Bevan Smith, father of the murdered teen, says it hasn't happened.
"When this happens to anyone in New Zealand ... the victim's families are echoing the same concerns we were nearly 20 years ago, exactly the same."
The day before Kylie was killed, Smith, the local plumber, worked with his daughter's rapist and murderer. Smith and the residents of the small Otago town were unaware that a man facing rape charges was living among them. The Baptist Church, which lobbied to give Bailey refuge in Owaka while he awaited trial, believed they were offering him a fresh life. Instead a life was taken.
Smith has no doubt that if the justice system had done its job in 1991, his daughter would still be alive. He says Bailey should never have been given bail to Owaka. "Paul Bailey murdered Kylie, but he was aided by the justice system."
Smith recommends stricter bail conditions, true life sentences and no parole for premeditated murder. "Life is very precious and if someone is to take it away in a premeditated manner they should lose all rights themselves. Quite simply, premeditated murder in this country [should be] a lifetime imprisonment, and to hell with the fact they are going to be 80 years old or they die behind bars."
He differentiates premeditation from an accidental murder. "There's all sorts of reasons that don't come up to a life to mean life, but the Paul Baileys and the Weatherstons, I'm afraid they've got to rot in jail and it's as simple as that."
At the very least, Smith wants no parole for premeditated murder. "[The parole board] are just normal people like you and I... they should not have to adjudicate whether a premeditated murderer is released or not. They should never be put in that position."
Turning up for five parole hearings was an emotional chore for the Smiths. Attendance is not compulsory but, echoing other families the Sunday Star-Times spoke to, he says their presence personalises the crime and can influence the decision.
Bailey was given 14 years for rape with a reduction of one year and a life sentence for murder but was eligible for parole after 10 years. "It came as quite a shock that we'd be fighting to keep him in there after 10 years and, as the powers would have it, that came around pretty quick. It started from the day that he murdered Kylie so we were virtually going up there at the anniversary of Kylie's death."
Bailey did not show up to the last hearing. Smith wants this choice for murderers removed. The board was required to assemble again three months later. The Smiths did not return as the board had already made its decision.
Smith has lost faith, saying that too many years have gone by with so little change. He read in his local paper last week that the same lawyer who defended Bailey was fighting to keep a man with 130 convictions (40 for violation of bail and court proceedings) out on bail. Smith rang to ask why. The answer: "I'm only doing my job."
Father of Natasha Hayden, 24, killed by Michael Curran in 2005 in Tauranga
For 12 months after his daughter was murdered, Brian Brown hid from the world. His only activity was Thursday golf. He and wife Lynette religiously attended Curran's four bail hearings, where bail was denied every time.
"We'd been to Hamilton, Tauranga, Rotorua, and what not and they're shits of things to go to. It's like a sore, you know, it festers away there and then when you see him it bubbles up to the surface."
The fifth hearing fell on a golf day and Brown, assured by a detective there was no reason bail would be granted, did not attend.
It was a decision he has lived to regret. Despite more than 20 previous convictions and the suspected murder of Hayden, Curran was released on bail to his family home, not far from the Brown's Maungatapu address.
Brown wants the bail laws tightened so if a criminal's bail request is refused he cannot reapply. "You get a different judge every time, and the thing that pisses you off is that you're brought up in normal situations to know that no means no, but, in actual fact, no means maybe or could be."
Brown had so little faith in the system following Curran's bail he felt he had to take justice into his own hands. He thought up ways to stop Curran reoffending, and for two months parked outside his home, morning and night.
"He knew I was there. After work I'd go and park there just for a few minutes, just to say, `hey, I'm on to you'. And he knew I was on to him. Different mates of mine said, `Why are you camping out there?' I said `this guy will kill someone again and I have an obligation to make sure that doesn't bloody happen'.
"I thought I'd go around there early in the morning and knock on the door and he'd answer it. I'd stun him [with a stun gun] and then pour battery acid in his eyes and make him blind. The reason for that was I was never going to see my daughter again, why should he see his three kids."
On the morning he planned to attack, he discovered Curran wasn't alone in his house as anticipated. The next day Brown had to travel to Auckland for work and he and Lynette stayed overnight. That morning, what he most feared happened. Michael Curran killed his two-year-old neighbour, Aaliyah Morrissey.
"When that little girl was killed, jeez, I felt really bad. I thought, shit oh dear, that little girl would be alive if only... even if I'd done something like putting pamphlets along the street saying there is a guy on bail for murder, because no one knew."
Brown wants tougher bail conditions and for defence lawyers to consider the implications of seeking bail for their clients. "If I knew that he was going to kill again and camped outside his house morn and night for two months, how could [the defence lawyer] push to get him bail?"
Although police were supportive, Brown wanted more contact with the Crown prosecutors representing his daughter. "You don't get to talk to them; they don't want to know you. It's like they don't want to get involved on an emotional level. I wouldn't have spoken 10 words to the guy. We had the police, but we didn't have the Crown prosecutor."
Already traumatised by Natasha's death, the Browns were then subject to the insensitivity of the courtroom. "We got to a deposition hearing and we're sitting just behind [the defence lawyer] and he's bandying around pictures of Natasha in the morgue, naked. Our family hadn't seen those."
After waiting almost 500 days for the trial, Brown was bitterly disappointed with the result. Curran's previous convictions and current charge for the murder of Aaliyah Morrissey were not disclosed to the jury and Curran was not made to take the witness stand.
Brown believes it's unfair for offenders to be protected from giving evidence when victims' friends and family can be ordered to.
"[The justice system] is all geared towards the perpetrator, to hell with the victim's family, they are well down the chain. We are collateral damage and surplus to requirements in the court system."
Curran's defence lawyer suggested a sentence of three years for Natasha's murder. "Three years," says Brown. "Killed my daughter and three years!" The judge sentenced him to eight. Curran received a longer sentence for Aaliyah's murder and is still in jail.
Mother of Kirsa Jensen, 14, who went missing in Napier in 1983, body never recovered
When Kirsa disappeared, her mother Robyn Jensen desperately wanted to find another parent who understood her experience.
She says losing a child through violent crime creates a grief like no other. "Death means life will never be the same again, but it's never the same again in so many ways. That's not really understood unless you unfortunately find yourself in that position. Ongoing support for parents bereaved by this sort of crime is minimal."
Apart from Victim Support, there are no formal support networks in New Zealand for parents who have lost children through crime. Jensen says this is despite the predominant cause of childhood death shifting from illness to violence in the 20th century.
Jensen, who works as a school guidance counsellor and in private practice, has a vision of setting up a place where parents can connect with her and other parents of murdered children. A place for "solace and reprieve" to talk, ask questions, therapy and group work. "My long-held dream is that I could have a house where parents who have lost children through criminal activity could stay and be with me, somebody who knows and understands."
When Jensen wrote her masters dissertation in 2003, a pioneer study called The grief experiences of parents who have lost a child through violent crime, she discovered literature on the subject was scarce. She is now regularly contacted by parents who have found her online when searching for someone who understands a little about how they are feeling.
Jensen says parents of murdered children are immediately faced with secondary trauma including the violent nature of the death, media attention and being part of a major police inquiry. She says grieving parents often go into extreme shock and this can be misinterpreted as coping.
"You see people presumably managing very well, when [actually] they are in shock. They are practically on automatic pilot. There's only so much you can take and the body will cut off. I remember three weeks after Kirsa going missing, that whole thing happening. I was in a daze almost and I just couldn't take in any more."
Nothing, Jensen says, prepares you for seeing your child's face on a billboard or on the front page of the newspaper.
"Overnight your child becomes public property and so do you as her mother. That's just another one of the many things that you have to cope with. A photo I had given to the police for the purposes of someone who had come in as a witness was on the front page of the paper, and that's the photo that has gone right through New Zealand and is used again and again."
Until the system offers better support for parents like her, Jensen says she is available to others in need
What families want to see and what Justice Minister Simon Power says is being done:
Stricter bail conditions
The government plans to review the system, says Power. The Bail Amendment Act 2008, passed in December, restored the threshold for remand in custody to those who may abscond or pose a "real and significant risk".
True life sentences and no parole for premeditated murder
Under the proposed Sentencing and Parole Reform Bill introduced in February, the law will be amended "to prevent the worst murderers being released on parole", ie, those who've been sentenced to five or more years. It would also give courts the option of imposing a life sentence without parole, regardless of offenders' prior record. "For these offenders," says Power, "a life sentence will mean life in prison."
Greater sensitivity towards victims and their families
Power agrees that this could be improved and has asked the Ministry of Justice to "give consideration to this in its review of victims' rights".
An estimated $13.6 million over the first four years will be generated by the Sentencing (Offender Levy) Amendment Bill, which is waiting for its second reading, from a $50 levy to be paid by all convicted offenders. The money will be used to fund extra entitlements and services for victims of serious crime, with decisions expected next month.
Speedier justice system
Power says he has "made it a priority to improve the efficiency of the courts". Currently under way is the Criminal Procedure (Simplification) Project which aims to streamline processes and address issues such as repeated adjournments and barriers to modern technology in the courtroom.
Greater contact with Crown prosecutors
Power points out that the prosecutor may be the court official most closely aligned to the victim or victim's family but they do not technically represent the victim.
Better counselling and other support
Power: "The revenue generated from the offender levy will be targeted to victims with the highest unmet needs."
Sunday Star Times